Common Carrier Status is Often a Red Herring

[tcmay@got.net (Timothy C. May)]

[I picked a new thread title. Speaking of which, YACM (Yet Another
Cyberspace Magazine) is out: "Herring," or "Red Herring," or "Pickled
Herring." I only glanced at it long enough to see that it had the
obligatory interview with cyberspace guru Marc Andreesen, the obligatory
cover photo of Steve Jobs, and the obligatory other techno-rave articles.
Probably several mentions of PGP, but I didn't bother to look for them.
Needless to say, I put it back on the shelf before being too heavily
contaminated.]


At 7:48 PM 2/14/96, Declan B. McCullagh wrote:

>Since you don't understand the way Federal criminal charges work,
>there's no reason I should take your argument seriously. (Hint: The
>*U.S. Attorney*, or an AUSA, files charges, not you, me, or a random
>"athiest.")
>
>As for this mythical Bible being removed, that is irrelevant to this
>discussion, which centers around a Bible being *prosecuted*. If I had a
>Bible on my web site (perhaps the TCM Vernacular Translation!) I'd
>remove it just to make a point. As I suspect the owner of the web pages
>did.

By the way, this is one reason why the "try to be like a common carrier"
arguments are somewhat weak. Let me explain.

I hear often on this list and in other places that Web sites and other Net
sites should strive to be as much like common carriers as possible, that
removing any items or discouraging controversial material (Zundelsites,
militia sites, Sarin formulas, antifeminista material, etc.) will weaken
their defense in a legal case.

Well, I don't buy it. Maybe in the abstract, and in the long run, it has
worked out that common carrier status involves non-intervention. However,
in the real world it is _real prosecutors_ who decide who to go after. Real
prosecutors who are ordered to prosecute a CDA case are not going to go
after clean-living ISPs who happened to let one questionable item through,
they're going to go after the rough trade, just as Declan suggests.

Now, in the real world, does anybody think that "The Christian Fellowship
Internet Service Provider," which has taken numerous steps to limit access
to indecent material, is *more likely* to be prosecuted by federal
prosecutors than "Buck Satan's Anything Goes Web Site"? (Hint: "Common
carrier" status is not something that gets handed out to some Internet
providers and not others. Second hint: so far as I have heard, there has
not yet been any determination as to whether some ISPs are "common
carriers" and others are not.)

The realpolitik of it is that an ISP which tries to limit access by minors,
which discourages Zundelsite material, and which makes soothing comments
about Jess Helms and the Christian Right will of course be *far less
likely* to be prosecuted under whatever CDA charges come up as some
leftist, anarchist, radical ISP which takes a hands-off approach. Sad, but
true. This is also known in legal circles as "the chilling effect."

[ObPerry: "What does this have to do with the  IPv6 domestic distibution?"
ObAnswer: "Nothing. Since you're so concerned about people coding, go back
to coding."]

---Tim May

Boycott espionage-enabled software!
We got computers, we're tapping phone lines, we know that that ain't allowed.
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Timothy C. May              | Crypto Anarchy: encryption, digital money,
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