North American Network Operators Group

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Re: Common Carrier Question

  • From: Sean Donelan
  • Date: Thu Apr 13 23:49:27 2006

On Thu, 13 Apr 2006, Patrick W. Gilmore wrote:
> 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.

As always you should consult competent advisors licensed to give legal
advice in your jurisdicition.

Someone writing a research paper on the topic should review the
Cybertelecom web site.  Robert Cannon has done a very nice job explaining
the difference types of common carriage and common carriers, with
citations and references.

In the USA, Congress essentially pre-empted Stratton Oakmont v. Prodigy
when it passed the good samaritan provisions in the Communications Decency
Act (47 USC 230).

Not only did ISPs receive broad immunity for carrying third party content,
they also received broad immunity for actions voluntarily taken in good
faith to restrict objectionable, etc content.  This may include not just
things such as ISP supplied parental control software, but may also
include when an ISP takes a good faith action to stop a DDOS attack and
drops some "good traffic" too.

"Good faith" is not carte blanche to do anything.  Nor will it stop
someone filing a lawsuit, which can get very expensive even if you
ultimately win.