Craig A. Johnson
With the passage of the "indecency" regulations, small to medium
sized Internet service providers (ISPs) may well find themselves at sea
trying to interpret and come into compliance with the law.
Somewhat ironically, the call to regulate ISPs in a manner similar
to "common carriers" has arisen again with the passage of the telecom
act. On the other side of the coin, Brock Meeks reports that there
is talk on the Hill of potential FCC or PUC regulation of ISPs.
Last fall, I examined the concept of "common carriage" and ISPs
in a piece I did for WIRED magazine, concluding that traditional
common carriage regulatory regimes make no sense with regard to the
Internet, and that a quasi-common-carrier like model seemed to be
evolving out of the judicial process.
Unfortunately, that model was not upheld in the Thomas BBS
case mentioned below, but a victory by the ACLU and co-plaintiffs in
the current suit against the "indecency" provisions would put in
place a strong brick in the wall.
As ACLU Executive Director Ira Glasser said on February 7 in
response to a question whether the Internet needs a new regulatory
model, "The Internet already is regulated -- by the First Amendment."
Craig A. Johnson
Cyber Rights Now
NOT A PANACEA
Stopping Net censorship through "common carrier" protection has its
The sludge seeping from Congressional telecom bills this autumn wasn't
a pretty sight, especially the parts that mired the Internet in new
restrictions on free speech and expression. Yet ill-defined solutions
touted by opponents of the censors did little to clarify the political
Understandably, online activists were eager to find a regulatory
prophylactic to combat synaptically impaired legislation such as the
Senate's Exon-Coats Communications Decency Act and the House's "item
number 41," part of the Manager's Amendment to House Resolution 1555,
courtesy of Judiciary Committee Chair Henry Hyde (R-Illinois). Hyde's
dead-of-night attack on speech altered Title 18 of the United States
Code so that Net content would be watered down to an intellectual
level suitable only for children.
One meme that made the rounds among user groups suggested classifying
Internet service providers as "common carriers." The National Writers
Union, for example, floated a proposal to treat providers who don't
censor their subscribers' posts "as common carriers free of
But such musty old pigeonholes are inappropriate for new media, which
require wide open spaces to develop and thrive. The real rub? How to
ensure common-carrier-like protection for content without shackling
the Internet to an antique regulatory jalopy.
Common carriers, in legislative terms, provide the telecommunications
platform for services that they do not own, control, or select. They
are required to offer nondiscriminatory access and interconnection at
fair and reasonable rates, as well as to allow subscribers to select
content that is free from editorial control. In sharp contrast, the
content and pricing of "enhanced" services - a category that
traditionally includes Internet services, online information services,
and data services - has been left unregulated.
Telephone companies provide the classic example of a common carrier.
Back in the early days of Ma Bell, common-carrier status was used to
separate the functions of content provider and distribution conduit,
in order to provide the "public good" of universal service. The idea
was enshrined in the Communications Act of 1934, which celebrated
telephone service as a "natural monopoly."
In return, common carriers were obliged to contribute to a universal
service fund, to allow the feds to eavesdrop on communications, and to
offer transport and interconnection to all comers without regard to
content. These functions properly apply to local-exchange carriers,
long-distance companies, and new entrants hoping to offer voice-grade
But your friendly neighborhood Internet service provider is not in the
business of supplying voice-grade telephone service on the basis of
"comparably efficient interconnection," Federal Communications
Commission jargon for equal access. "The common-carrier model just
doesn't square with either the Internet or computer networking," says
Tony Rutkowski, executive director of the Internet Society. In fact,
the traditional common-carriage model would hit the Internet like a
"The creation of a new common-carrier-like category, which would
afford liability protection to systems operators but without
traditional regulatory burdens, is the way to go," argues Stanton
McCandlish, manager of online services at the Electronic Frontier
Foundation. "Any other solution will chill free speech, put a major
damper on communications and new media development, and hinder the
free flow of information."
Fortunately, such a "quasi-common carrier" policy - one that would
grant privileges and immunities in content transmission - is slowly
taking shape. Rapidly developing case law, industry cooperation on
screening and filtering technology, and voluntary actions by Net
providers are ushering in a new vision of cyber policy, one that would
treat information service providers functioning as libraries,
newsstands, or distributors as common carriers in relation to content.
At the same time, service providers would be exempted from the morass
of government regulation that common-carrier status typically entails.
But the regulatory quagmire has already had a stifling effect. Despite
their universal service mandate, common carriers are increasingly
refusing to carry certain types of material they believe would harm
their businesses or make them liable for prosecution. For instance, in
Carlin Communications Inc. v. Mountain States Telephone and Telegraph
Co., the Ninth Circuit Court of Appeals concluded in 1987 that a
local-exchange carrier could terminate dial-a-porn service as a matter
of business judgment, whether or not the content was obscene.
The Senate's telecom deregulation bill, S 652, compounds the problem
by stipulating that interconnections and unbundling of network
components be granted only to "telecommunications carriers" and not
"information service providers." This means that Internet service
providers may wake up some day to find their access to transport and
But there is still hope that the emerging quasi-common-carrier model
will take hold. As the American Civil Liberties Union wrote in a brief
in the Amateur Action BBS case, such a model would ensure that in the
case of "indecent" content, a "place in cyberspace" would exist "where
adult material would be essentially immune from prosecution," with
"assured access only by consenting adults."
If this redefinition doesn't come soon, surely there will be a dark
winter of digital discontent. Net users can make a difference, but
only if they look up from their screens long enough to understand that
the regulatory retrenchment taking place in Washington will have a
profound impact on our online future.
Craig A. Johnson (•••@••.•••) is a telecommunications and
information policy specialist based in Washington, DC.
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