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Re: Common Carrier Question

  • From: Patrick W. Gilmore
  • Date: Thu Apr 13 18:08:13 2006

On Apr 13, 2006, at 5:57 PM, Eric Germann wrote:

I'm working on a graduate policy paper regarding Internet filtering by
blocking ASN's or IP prefixes. It is a variation of Net Neutrality, just
by a different name.
Except Network Neutrality is about QoS, not filtering.

Is anyone in the IANAL field aware of any cases where :

a.  an ISP successfully defended a common carrier position
b.  an ISP unsuccessfully defended a common carrier position
ISPs are _not_ common carriers, and have never been (in the US at least). "Common Carrier" is a legal term, and carries lots of responsibilities as well as benefits. ISPs have essentially neither.

However, assuming you meant a more general definition, I might have a case on point:

Back in the early 90s, Prodigy & Compuserve (I think, maybe AOL instead of one of those) were involved in a slander case or something like that. Someone had posted "bad" stuff about company using these ISPs.

One lost and one won. The reason was that Prodigy monitored its content for things like foul language, Compuserve did not. As a result, most ISPs after that would very, very intentionally not look at what their customers were doing so they could not be accused of monitoring or filtering or whatever.

c. an ISP was treated as a common carrier, even if didn't want to be.
d. an ISP was not treated as a common carrier, even if they wanted to.
I can't think of a reason an ISP would not want to be a common carrier, unless you are talking about the federal legal definition and they're avoiding the responsibilities it carries. But then no ISP has ever been treated like that (unless they were _also_ a telco), so it never comes up.

As for D, that happens all the time. For instance, there are plenty of times ISPs have had equipment seized, either as "evidence" or because they were being prosecuted directly, for things their customers did. Again, this assumes you are not talking about the legal definition.