[856] in Commercialization & Privatization of the Internet
Re: Carrier Liability Legislation
daemon@ATHENA.MIT.EDU (Manavendra K. Thakur)
Tue Jun 18 23:00:57 1991
To: com-priv@uu.psi.com
In-Reply-To: Your message of Tue, 18 Jun 91 13:51:31 -0400.
Date: Tue, 18 Jun 91 22:59:27 EDT
From: "Manavendra K. Thakur" <thakur@zerkalo.harvard.edu>
>>>>> On Tue, 18 Jun 91 13:51:31 -0400, mkapor@eff.org (Mitch Kapor) said:
> Liability of Internetwork Carriers
> Discussion Draft
> Electronic Frontier Foundation, Inc.
> June 18, 1991
> [I]nternetwork carriers strongly feel the need to protect themselves
> from possible liabilities arising out of use of the network.
[..]
> 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.
[..]
> 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....
[..]
> Where the statute applies, it would be intended to eliminate any
> risk of legal penalty or liability associated with the forwarding or
> transmission activity.
These statements puzzle me.
I don't understand the reluctance, as described by Dr. Kapor, on the
part of internet carriers to consider themselves common carriers. It
certainly seems that common carrier status handles all these privacy
questions in a manner that is comprehensive, familiar, and effective.
Certainly, there would be no wrangling over whether newsgroups,
mailing lists, and the like should be protected. All traffic would be
protected, police would be required to get court orders, and the
carrier would be shielded from liability as well.
That's why I was surprised to read that common carrier status was
"inimical to the successful model of free enterprise." To be blunt,
that's as loaded a statement as I've ever seen. I believe in free
enterprise too, but common carrier status can only be accused of
violating free enterprise if by "free enterprise" you really mean
"adherence to strict laissez-faire economic principles." We haven't
had anything even loosely resembling a strict laissez-faire economy
since before the Great Depression. (And no, Reaganomics didn't even
come close.)
That's why I see Dr. Kapor's appeal to "the successful model of free
enterprise" as uncompelling and empty argument. If there are reasons
to avoid common carrier status, they need to be enumerated more
clearly and cogently than this.
As it stands, promoting liability protection while rejecting common
carrier status comes across -- to me anyway -- as coveting all the
rights but cowering away from any responsibilities.
Besides it's not clear to me that any liability protection bill would
survive unchanged in Congress if it did not extend at least some form
of explicit privacy and consumer protection to customers.
I point to the experience with the cellular telephone industry as
evidence for the need of such explicit privacy and consumer
protections. So-called cellular phone "companies" have bid and won
regional or municipal air-wave rights from the government for free and
have then turned around and sold those rights for millions of dollars
-- all without having built anything, installed any equipment, or
provided any phone service at all.
In addition, some cellular phone companies have attracted customers by
charging low costs for initial phone installation but then milked the
customers dry by charging exorbitantly high fees for actual phone
service. And as for providing any real and meaningful privacy
protection to customers, the record of the cellular phone industry is
just plain disastrous.
This is not an example that I'm eager to see repeated.
The com-priv mailing list has already discussed some of the potential
anti-consumer pitfalls in the internet carrier market: carriers trying
to limit users from sending traffic to or over another carrier's
networks; penalties for subscribing to additional carriers, etc.
I'm sure the majority of you reading this will say "That's silly - the
market will put any companies that do these things out of business."
I don't agree with that. How many of you would have said the same
thing a few years ago about cellular phone companies that charge an
arm and a leg for actual phone services? How many of them have gone
out of business, and how many of them are still in business today,
continuing this unsavory and anti-consumer practice?
Perhaps the twin goals in the internet world of 1) establishing
privacy and consumer protection and 2) eliminating carrier liability
can be accomplished without demanding full-blown common carrier
status. I'm willing to concede that.
But I don't believe that we should rely solely on economic forces to
foster the kind of interconnectivity and responsible behavior that we
all want and agree on. Some sort of legislation is required to
establish privacy rights and impart the force of law to consumer
protection. I don't think this violates "free enterprise" in any way.
So while I applaud and support Dr. Kapor's initiative for proposing
this bill as an alternative to common carrier status, I think it is
incomplete. Here's why: the practical effect of Dr. Kapor's bill, if
it were passed as currently written, would be to protect carriers from
liability. Any privacy protections that get extended to customers
would be an indirect consequence of carrier liability exemptions and
not a direct goal per se. (Note again that I'm speaking of practical
effects here, not intentions. I don't have any doubts about Dr.
Kapor's intentions, which I'm sure are honorable.)
Relegating privacy protection to a secondary or indirect goal in this
manner is, in my view, equivalent to weakening that protection and
potentially even nullifying it. Instead, I believe privacy guarantees
need to be an explicit and primary goal of legislation so that privacy
protection can stand as a strong pillar in its own right.
So any legislation applying to internet carriers, and internet
services in general, should not only work to free *carriers* from the
burden of monitoring traffic but also legally mandate for the
*consumer* meaningful guarantees of privacy, open interconnectivity,
freedom from anti-competitive penalties, etc.
That is why I would much rather see Dr. Kapor's proposed bill become
law within the broader context of other legislation designed to extend
meaningful privacy and consumer protection for customers of internet
carriers.
I hope that this bill is amended and extended to address the needs of
both communities: providers and consumers, each of which have
legitimate needs that should be addressed. As it stands, however,
this bill addresses only one half of the equation.
Manavendra K. Thakur Internet: thakur@zerkalo.harvard.edu
Systems Programmer, High Energy Division BITNET: thakur@cfa.BITNET
Harvard-Smithsonian Center for DECNET: CFA::thakur
Astrophysics UUCP: ...!uunet!mit-eddie!thakur
