With the passage of the "indecency" regulations, small to medium sized ISPs may well find themselves at sea in trying to interpret and come into compliance with the law. , the call to treat ISPs as common carriers with regard to content has gained new currency with the passage of the telecom act.And, Brock Meeks reports that there is talk on the Hill of potential FCC or PUC regulation of ISPs, perhaps as "common carriers." Somewhat ironically Back 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 judicial decisions. Unfortunately, that model was not upheld in the case of the Thomas BBS case mentioned below, but a victory by the ACLU and co-plaintiffs in the current suit against the "indecency" provisions would be 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 set of regulatory rules, "The Internet already is regulated -- by the First Amendment." Craig A. Johnson Washington @@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@ WIRED 3.12 Cyber Rights Now NOT A PANACEA Stopping Net censorship through "common carrier" protection has its problems. 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 muck. 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 liability." 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 telephone service. 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 wrecking ball. "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 interconnection blocked. But there is still hope that the emerging quasi-common-carrier model will take hold. As the American Civil Liberties Union wrote in.