Craig A. Johnson

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

Craig A. Johnson


WIRED 3.12
Cyber Rights Now


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

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

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

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.