Re: Any lawyers :-) Net Neutrality redux : AT&T caught with smoking gun in hand (and st

[David Farber <dave () farber net>]

Begin forwarded message:

From: Kevin Werbach <werbach () wharton upenn edu>
Date: July 27, 2009 6:09:08 PM EDT
To: dave () farber net
Cc: "ip" <ip () v2 listbox com>
Subject: Re: [IP] Any lawyers :-)   Net Neutrality redux : AT&T caught  
with  smoking gun in hand (and  st

IAAL.  Section 230 was actually put into the 1996 Telecommunication  
Act as a counterweight to the Communications Decency Act (CDA)  
sections, which would have restricted "indecent" speech on the  
Internet.  (Indecency and obscenity are different under the law.)  One  
reason for Section 230 was the concern that, under Stratton Oakmont,  
ISPs would take on liability by complying with the CDA's mandates.

The Supreme Court overturned the CDA on free speech grounds.  It left  
Section 230 intact. Hence, ISPs still have a broad safe harbor.  And  
there is wonderful-sounding statutory language about the commitment to  
an open Internet, without the context for how it got there.

For those who care, I tell the whole story in my article, "Off the  
Hook" (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1371222)

-k-

At 5:20 PM -0400 7/27/09, David Farber wrote:
> Begin forwarded message:
>
> From: Stagg Newman <<mailto:lsnewmanjr () yahoo com>lsnewmanjr () yahoo com>
> Date: July 27, 2009 4:14:01 PM EDT
> To: ip <<mailto:ip () v2 listbox com>ip () v2 listbox com>, <mailto:dave () farber net 
> >dave () farber net
> Subject: Re: [IP] Net Neutrality redux : AT&T caught with smoking  
> gun in hand (and  st
>
> IANAL.  I do remember that part of the '96 Telecom Law dealing w/  
> restricting access
> to obscene material was found unconstitutional by the Supreme Court.
>
> Do any of the lawyers on the list know if Section 230 is the part of  
> the
> act found unconstitutional?  And if so does that imply that Stratton  
> Oakmont
> v. Prodigy is still valid precendent.
>
>
>
> --- On Mon, 7/27/09, David Farber <<mailto:dave () farber net>dave () farber net 
> > wrote:
>
>
> From: David Farber <<mailto:dave () farber net>dave () farber net>
> Subject: [IP] Net Neutrality redux : AT&T caught with smoking gun in  
> hand (and st
> To: "ip" <<mailto:ip () v2 listbox com>ip () v2 listbox com>
> Date: Monday, July 27, 2009, 9:42 AM
>
>
>
> Begin forwarded message:
>
> From: "Paul Levy" <<http://us.mc651.mail.yahoo.com/mc/compose?to=plevy () citizen org 
> >plevy () citizen org>
> Date: July 27, 2009 8:13:03 AM EDT
> To: "David Farber" <<http://us.mc651.mail.yahoo.com/mc/compose?to=dave () farber net 
> >dave () farber net>
> Subject: Re: [IP] PLEASE NOTE MY COMMENT --  Net Neutrality redux :  
> AT&T caught with smoking gun in hand (and  st
>
> Although these issues are worth debating for policy reasons, the  
> hint that by censoring traffic ATT risks being held liable for  
> traffic it does not censor, by reference to Stratton Oakmont v.  
> Prodigy, does not suggest a realistic liability concern.  Congress  
> overruled Stratton Oakmont in 1996 when it enacted 47 U.S.C. § 230,  
> which specifically states, among other things, that
>
> No provider or user of an interactive computer service shall be held  
> liable on account of-
> (A) any action voluntarily taken in good faith to restrict access to  
> or availability of material that the provider or user considers to  
> be obscene, lewd, lascivious, filthy, excessively violent,  
> harassing, or otherwise objectionable, whether or not such material  
> is constitutionally protected;....
> <http://www4.law.cornell.edu/uscode/47/230.html>http://www4law.cornell.edu/uscode/47/230.html
>
> Paul Alan Levy
> Public Citizen Litigation Group
> 1600 - 20th Street, N.W.
> Washington, D.C. 20009
> (202) 588-1000
> <http://www.citizen.org/litigation>http://www.citizen.org/litigation
>
> > > > David Farber <<http://us.mc651.mail.yahoo.com/mc/compose?to=dave () farber net 
> > > > >dave () farber net> 7/27/2009 12:59 AM >>>
>
> I  can not verify this , I use Comcast and it works there -- but it  
> is widely reported on many sites such as <http://www.techcrunch.com/2009/07/26/att-blocks-4chan-this-is-going-to-get-ugly/ 
> >http://www.techcrunch.com/2009/07/26/att-blocks-4chan-this-is-going-to-get-ugly/
>
> Dave
>
>
> Begin forwarded message:
>
> From: jamie <<http://us.mc651.mail.yahoo.com/mc/compose? 
> to=j () arpa com>j () arpa com>
> Date: July 26, 2009 10:32:21 PM EDT
> To: Dave Farber <<http://us.mc651.mail.yahoo.com/mc/compose?to=dave () farber net 
> >dave () farber net>
> Cc: Jamie Rishaw <<http://us.mc651.mail.yahoo.com/mc/compose?to=j () arpa com 
> >j () arpa com>
> Subject: Net Neutrality redux : AT&T caught with smoking gun in hand  
> (and  still in hand).
>
> [ok to post/repost/edit for brevity]
>
>
> Dave,
>
>  It appears at AT&T (dial, DSL, black-label and my own home  
> broadband service via u-verse product) has unilaterally and without  
> explanation started blocking websites.
>
>  I have confirmed this with multiple tests. (It actually appears  
> that these sites are being blocked at a local-global scale -- that  
> is, each city/hub seems to have blackholes for the sites).
>
>  The biggest one is "<http://4chan.org/>4chan.org"'s image server -  
> img.4chan.  It's in Alexa's Top-1000 (#684). Internet Route-servers  
> on AT&T's network as traceroutes from various cities (including  
> Chicago, St Louis, multiple sites in Northern and Southern  
> California as well as NYC) indicate that the sites have been  
> blackholed.
>
>  And, annoyingly, this isn't the first time - they showed pro-Bush  
> agenda just two years ago, censoring Pearl Jam anti-Bush-43 lyrics.
>
>  Questions arise:
>
>  -1- What to do?
>    - AT&T has no right to censor or limit anything, period. (IMHO)  
> (IANAL) (etc)
>    - I'm now paying ~$150/mo for service with TV & Internet subject  
> to filtering without permission?
>
>  -2- Is AT&T acting in a way that negates its 'Common Carrier' status?
>
>  -3- If AT&T is trying to "enforce" the CDA upon its subscribers'  
> "eyeballs," doesnt it fall into the same dangerous ground that  
> Prodigy did when it tried to police traffic?
>  (Summary for the unfamiliar: The courts ruled that because Prodigy  
> took a stance of monitoring (any) part of traffic, it was bound to  
> "catch everything" and was thus no longer a carrier but a  
> Publisher).  (Stratton Oakmont v Prodigy)
>
>
> Comments/opinions/etc from you and readers appreciated.
>
> TIA,
>
> -Jamie Rishaw
>
>
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