[848] in Commercialization & Privatization of the Internet
Carrier Liability Legislation
daemon@ATHENA.MIT.EDU (mkapor@eff.org)
Tue Jun 18 15:06:20 1991
Date: Tue, 18 Jun 91 13:51:31 -0400
To: com-priv@uu.psi.com
From: mkapor@eff.org
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.
