[1049] in Commercialization & Privatization of the Internet
ANS Acceptable Use Policy Followup
daemon@ATHENA.MIT.EDU (Allan H. Weis)
Tue Jul 23 10:47:27 1991
Date: Tue, 23 Jul 91 10:46:52 EDT
From: Allan H. Weis <weis@nis.ans.net>
To: com-priv@uu.psi.com
Three months ago, comments were posted on com-priv concerning
Section 4 of ANS's Acceptable Use Policy. As a result, I
discussed the concern of Internet users over this issue with a
number of people, including Mitch Kapor. We agreed that the
problem of acceptable use policies deserved serious, independent
analysis. Mitch suggested putting together a group to look at
the problem in the hope it would prove useful to EFF, ANS and
other internetworking carriers. We agreed that the group would
first try to develop a consensus and would then bring that
position to appropriate forums, especially the Internet, for
discussion. Accordingly, Mitch posted a draft position paper
entitled "Liability of Internet Carriers" on June 18 on com-priv.
(See the attached note.) Since that date, considerable
discussion has occurred over com-priv. We look forward to
further constructive input from Mitch, his group and com-priv
participants.
ANS believes that liability for acts of defamation, copyright
infringement, and the like should fall on the originator of a
message, but not on intermediate networks transmitting a message.
As a practical matter, only the originator of the message is in a
position to avoid message content that raises issues of criminal
or civil liability. However, neither federal law nor the law in
any of the 50 states is entirely clear about the liability of
networks that forward messages with content that involves
potential liability issues. There are arguments why networks
would not be required to bear such liability, but the law is not
as clear as it might be.
ANS and other networks must be able to operate under the kind of
liability rules now applicable to telephone companies -- no
responsibility to control, and no liability of any kind for,
message content on the network. ANS would welcome such
legislative changes, which, if adopted, would allow ANS to revise
its AUP. However, until the liability of networks for
transmitting messages that violate the law or involve the
commission of a civil wrong is clarified, networks, including
ANS, need to take steps to deter activities that can expose them
to litigation. ANS will study recommendations for modifications
or clarifications of its AUP from Mitch Kapor and his group that
both enhance "free speech" and "privacy" and protect networks
from risks of extended and expensive litigation.
In light of the current uncertainties, ANS hasn't yet modified
Section 4 of its AUP. However, ANS would like to assure Internet
users that it doesn't intend that its AUP will ever be used to
ban a Hyde Park Corner or otherwise impede normal discourse. ANS
is not interested in controlling the content of messages --
either private or public -- except to the extent needed to
minimize exposure to litigation and to help avoid facilitating
harm to Internet users.
There have been suggestions over com-priv that the benefits of
legislation that clarify the liability of message transporters,
like ANS and the midlevel networks, should be replaced by or
coupled with common carrier regulations. It is noteworthy that
this suggestion comes from com-priv, which began as a call to
privatize the Internet and minimize government involvement in
networking. ANS believes that, in the competitive data
networking market, the imposition of rate, availability, and
terms of service regulation of the networks comprising the
Internet is unwise, unneeded, and a counterproductive idea at
this time.
Normally, regulation of rates, availability, and terms of service
is imposed to prevent organizations with de jure or de facto
monopoly power to exact monopoly profits. Not only are there
many actual network competitors, the marketplace abounds with
potential competitors, some of which are orders of magnitude
larger than ANS and many of the midlevel networks. Some of these
potential competitors have extensive experience in communications
and have expressed serious interest in enhancing their role in
data communications. There is no evidence that monopoly profits
are present now or will likely be present in the future.
But beyond the lack of need for regulation of rates,
availability, and terms of service regulation, any call for equal
service to all at the same prices is impossible to meet where
costs vary so widely from location to location and where there
are many competitors. As an extreme example, the infrastructure
required to provide service to a customer in Alaska is many times
more expensive than that needed for a customer located in
Connecticut. The situation varies markedly from that of local
telephone companies with monopoly positions. They can apply
essentially flat basic rates, since they can use their low cost
connections to subsidize their high cost connections. But this
won't work in an area with extensive price competition and
distance-sensitive costs.
Computer networking costs are a little like CATV costs -- a
concentration of CATV subscribers in one location makes
connections practical while the costs of connecting a remote
subscriber are so high that he opts to buy a home satellite
receive dish -- not because he wants it, but because the
underlying cost factors require it.
Any regulatory regime that tried to regulate access and rates in
the computer networking area would add costs to both government
and computer networks, while adding little value for any user.
Actual and potential competition are far better and more
efficient regulators in this market.
We still consider this an open issue, it is not a simple one and
we are struggling with it, but I wanted to share our interim
findings. We will post further developments as they occur, and,
of course, we will continue to listen to, and participate in, the
discussions on com-priv.
Al Weis
=================================================================
ATTACHMENT
=================================================================
Date: Tue, 18 Jun 91 13:51:31 -0400
To: com-priv@uu.psi.com
>From: mkapor@eff.org
Subject: Carrier Liability Legislation
I would be very interested in your reactions to this. At this stage, it is
strictly a discussion draft. We are airing it out on the net in order to
get a sanity check, surface problems and controversies, and improve it.
Liability of Internetwork Carriers
Discussion Draft
Electronic Frontier Foundation, Inc.
June 18, 1991
INTRODUCTION
The Internet is undergoing a rapid transition. Two key, interrelated
trends are easily discerned. First, commercial traffic is now being
carried on and across many networks. Second, many networks are being
operated more like businesses than research experiments. New entities have
been created as profit-seeking enterprises. These include PSI, Altneret,
and ANS' CO+RE Systems.
In this environment, internetwork carriers strongly feel the need to
protect themselves from possible liabilities arising out of use of the
network. If a carrier perceives uncertainty in the legal climate regarding
its potential liability, it will naturally be inclined to reduce its risk
by restricting or reserving the right to restrict uses of the network.
These carriers typically provide or forward Usenet traffic, as well as
access to various bulletin boards and online conferencing systems. As
such, possible areas of concern include allegedly defamatory statements,
copyright infringement, invasion of privacy, obscenity,
and criminal conspiracy, and trafficking in stolen information.
If the carrier feels exposure, then the temptation will be to impose
conditions of use to restrict the exposure.
However well-intentioned, there are highly undesirable side-effects of
acceptable use policies which are so motivated. It can have the proverbial
chilling effect on speech and expression. Who is to say whether something
is indeed defamatory or infringing? If the carrier feels it is going to be
dragged into such a mess, it may choose the "easy" way out by censoring or
refusing to carry what may in fact be innocuous message traffic from
the allegedly offending party. This also puts the carrier in the position
of making policy, that is, making decisions about what is legal and what
isn't. This is not a role carriers should have to play or want to play.
Telephone companies and other common carriers escape this problem because,
as common carriers, they are statutorily immune from liability arising from
the contents of messages they carry. No one here is remotely suggesting
that inter-network companies be taken the common carrier route, as it is
inimical to the successful model of free enterprise which is to be employed
in the development of the next stage of the Internet.
The conclusion of our analysis is that some equivalent statutory protection
for network carriers is called for in order to promote the orderly and free
development of the net. This discussion document outlines a proposed
statute that would free "forwarders" of electronic communications from
fears of legal liability that might incline them to be censors.
The purpose of the proposed legislation would be to facilitate the
forwarding and transmission of electronic messages without undue fear of
liability on the part of the party performing only a forwarding or
transmission function. The goal is to encourage the use of new electronic
media for transmission of information by providing explicitly that the
sender, rather than the person who provides a medium for forwarding or
transmission, is responsible for the content of the communication.
OUTLINE OF PROPOSED LEGISLATION
Under the proposed statute, the general rule would be that any person
or company who provides a communications service or conduit for electronic
communications, and who does not edit or otherwise alter the
communication, would not be subject to criminal or civil penalties or
liable for damages or equitable relief to another person or company as a
results of the contents of such communications.
Specifically, the statute would apply to any person or company that
forwards electronic communications between electronic communications
systems provided by other parties, as well as to a person or company that
transmits private (that is, not readily accessible to the general public)
electronic communications from a sender (other than itself) to an intended
recipients not selected by the forwarder.
In one case, the provider of forwarding services is providing a "highway"
for the transmission of messages that, even if readily accessible to the
general public, are primarily under the control of other persons who
provide the electronic communications systems on which the messages
originate or through which such messages are received.
In the second case, the status of the communications as private -- in the
sense that they are not readily accessible to the general public (or a
group selected by the transmitter) -- also renders it inappropriate to
charge the transmitter with responsibility for publication or dissemination
of the contents of the messages.
Persons or companies that meet this description would not be subject to any
criminal or civil penalty, or liable to anyone else for damages or
equitable relief of any kind under any federal, state or local law as a
result of any publication or distribution of the contents of an electronic
communication, unless certain exceptions applied (see below).
There would be two exceptions to this general rule of freedom from
liability. First, the rule would not apply to any forwarding or
transmission
of an electronic communication by a person who failed to comply with any
legal obligation to disclose any known information that might assist in
identifying the sender of the communication. Second, it would also not
apply to anyone who had failed to establish or enforce a policy requiring
that
the identity of the sender of such communication be ascertainable (or who
possessed advance knowledge that such a policy has been violated with
respect to such communication.)
By conditioning the carrier's protection on the availability of the
identity of the sender from some source, the statute would create an
incentive for the carrier to preserve any victim's ability to impose
responsibility for the contents of messages on the appropriate
person -- the sender.
Holding the sender of a message responsible for its contents is feasible
only in those circumstances in which the sender of the message can be
determined. Thus, if the transmitter knows that the identity of the sender
of the message cannot be discovered even on proper demand, the protections
afforded by the statute should not be available. This exemption is *not*
designed, however, to require any forwarder or transmitter to screen
messages to determine the identity of the sender -- or even to require that
all messages contain explicit indicators of the sender's identity. The use
of encryption or aliases is, thus, consistent with the purposes of the
statute, so long as the forwarding or transmitting party has a policy
requiring the identity of the sender to be accessible from some source (and
does not have actual knowledge that the policy has been violated).
Where the statute applies, it would be intended to eliminate any risk of
legal penalty or liability associated with the forwarding or transmission
activity. The statute expressly would preempt state and local law and
override any apparently inconsistent provision of federal law.
