<div> </div>
<div>Such fluent discourse here - seems like published articles (the better ones).</div>
<div>Such important issues. </div>
<div> </div>
<div>If someone has the venue, I would like to present some time on: </div>
<div> </div>
<div><em>Experience with Judges in Cyberlibel Cases, in Especial Relation to Freedom of Speech and Jurisdictional Reach..</em></div>
<div> </div>
<div>By the way, problems of take down or retraction after cyberspread - are indeed focal and awesome. Or aweing (wd?)... </div>
<div> </div>
<div>Say on.<br><br> </div>
<div><span class="gmail_quote">On 11/7/07, <b class="gmail_sendername">Dan Krimm</b> <<a href="mailto:dan@musicunbound.com">dan@musicunbound.com</a>> wrote:</span>
<blockquote class="gmail_quote" style="PADDING-LEFT: 1ex; MARGIN: 0px 0px 0px 0.8ex; BORDER-LEFT: #ccc 1px solid">Milton has already said a lot of what I would say. Inevitably I have<br>additional thoughts building off of his earlier reply:
<br><br><br>At 11:15 AM +0100 11/7/07, Vittorio Bertola wrote:<br>>Dan Krimm ha scritto:<br><br>>> Bottom line: what Milton said.<br>>><br>>> In my own words: "The distilled (if not simple) answer is that laws to
<br>>> establish prior restraint on data transport (if that's what you mean by<br>>> "prohibit access") would violate net neutrality, but laws to prosecute<br>>> carve-outs from freedom of expression ex post ("prohibit distribution")
<br>>> would not. Under ex post rules, common carriers are not liable for<br>>> distribution of unlawful content over their platforms." [And to be clear,<br>>> net neutrality is a form of common carriage, which has very deep roots in
<br>>> English Common Law.]<br>><br>>Would carriers be liable if they knew?<br>>For example, let's say I am a carrier and one of my users hosts nazi<br>>stuff on a website at home, connected through his DSL connection.
<br>>Someone comes and warns me about that. Should I be allowed to terminate<br>>the contract? Would I be liable if I do? Would I be liable if I don't?<br><br>Common carriers are generally entirely free of any liability for carriage,
<br>and free of any responsibility to know what they are carrying, beyond a<br>very minimal technical prerequisite (like: a car, or a data packet, to<br>specification required for the transport platform). The quid-pro-quo here
<br>is that in return for being free of liability, a common carrier *absolutely<br>must not discriminate* among those wishing to be carried.<br><br>What you're talking about above is a different component of service: web
<br>hosting as opposed to data transport. While a single company may offer<br>both services, many only offer one or the other, and the two services can<br>and should still be distinguished by law and policy. Common carriage
<br>policy applies to services, not firms.<br><br>Net neutrality is aimed mainly at data transport per se. Web hosting falls<br>more into the category of publication support services (which, frankly, is<br>a much more competitive market in the US than data transport, especially
<br>*last-mile* data transport), and publication support is more of a gray<br>area. That gray area in web hosting should not dilute the common carriage<br>principle as it applies to data transport services.<br><br><br><br>
>And where do platform for user-generated content fit in your plan? Would<br>>Youtube be responsible for illegal videos? (I'm not thinking of IPRs,<br>>rather of racist videos, violent videos etc.) At least after getting
<br>>proper notice? From which authority?<br><br>As you are no doubt aware, YouTube gets lots of takedown notices on the<br>basis of IPR claims (and on occasion they get "put up" notices in return,<br>claiming that the takedown notices were unwarranted -- the fight against
<br>the "chilling effects" goes on). As for "morality" based claims, you run<br>directly into First Amendment precedents, and full-fledged lawsuits (I'm<br>not aware of any notice-and-takedown provision for morality claims -- maybe
<br>Robin or Wendy would be more expert there). Notice-and-takedown is a low<br>barrier (easier and less expensive) compared to filing and prosecuting a<br>full-blown lawsuit, and there is a good deal of controversy about it even
<br>for IPR claims. Having a higher standard for morality claims seems a<br>proper balance to me (if you're going to proscribe free speech, be *very*<br>careful about how you do it -- don't do it casually by any means).
<br><br>In any case, I would presume that the policy for user-generated content<br>platforms would be similar to content hosting services in many ways (it is<br>for IPR in the US, because the Digital Millennium Copyright Act has
<br>notice-and-takedown provisions for platforms such as these, and each<br>platform type covered is listed explicitly in the statute).<br><br><br><br>> From one point of view I totally agree with you, ex post enforcement is
<br>>the way to go, ex ante censorship - even when required by law - is prone<br>>to terrible misuse. However I wouldn't want to get to the extreme of<br>>"irresponsible carriers", who refuse to cooperate in shutting down
<br>>malicious services. Of course you would need some due process, but spam<br>>and botnets and all sorts of bad stuff thrive on irresponsible carriers<br>>who do not feel the need to abide by their duty of good netizens.
<br><br>See above with respect to web hosting and content publication. While there<br>are some common-carriage-type principles that can apply in some cases<br>(these services cannot reasonably be expected to know everything that is
<br>going on on their platforms in explicit detail, except in the most<br>elementary technical sense, thus they should not be liable for preventing<br>it ex ante), as Milton noted: where genuine crimes are being committed, ex
<br>post prosecution is entirely appropriate and desirable, and the platform<br>operator must comply or be held liable itself as well.<br><br>That said, this is not a perfect solution, due to the "transaction costs"
<br>of using the judicial system (that's economist jargon for things like the<br>cost of lawyers, disruption of operational routine, allocation of<br>management resources to deal with a legal case, etc.). Those powers with
<br>more wealth are at an advantage in dealing with such systems, and justice<br>can be frightened away by unrecoverable costs of proving innocence, which<br>is ultimately not entirely "fair" if one is in fact not guilty of a crime
<br>but cannot afford to defend oneself in the courts.<br><br><br><br>>In general, most of the world doesn't have a first amendment and doesn't<br>>appear to want one - actually, many citizens scream and ask their
<br>>governments for more ex-ante censorship of the Internet. How to make the<br>>two visions coexist will be a challenge.<br><br>In addition to Milton's comments about the nature of rights and ongoing<br>controversies in the heat of evolving current events, we do indeed have
<br>UDHR Article 19, regardless of how much (or little) impact that has on<br>actual national laws.<br><br>As for navigating the political dynamics, there is no silver bullet to<br>answer that question, no neat and clean solution that I know of. Politics
<br>is messy by nature (i.e., by nature of human diversity of opinion and<br>self-interest). So you are *absolutely* correct: this is a profound<br>challenge. Perhaps an eternal challenge. I certainly don't have any
<br>expectation of resolving this tension in my lifetime, or during the<br>lifetime of many generations to come.<br><br>That's what politics is all about: grappling with these difficult, even<br>intractable, decisions of collective policy for an integrated commonwealth.
<br>What this demonstrates is that the Internet is becoming deeply immersed in<br>matters of general public policy and politics, and that genuine political<br>venues and jurisdictions (hopefully accountable to the general public in a
<br>structural manner, but in any case sovereign within their own political<br>domains) must be the place to work on resolving those matters to the extent<br>possible.<br><br>Net neutrality is at root a political issue, and it is a principle that
<br>deserves active advocacy in the context of democratic systems of public<br>governance. Frankly, I don't expect it to be accepted by all authoritarian<br>regimes, but to the extent that "the free world" can establish it as a
<br>benchmark, I think the world will be better off.<br><br>Again, I return to the deep roots of common carriage in Anglo-American<br>common law (note: peculiarly enough, most individual states in the US have<br>strong components of legal precedent beyond the bounds of federal law that
<br>still appeal explicitly to English Common Law, except for Louisiana which<br>is derived from French/Norman law). Modern democratic governance emerged<br>for the first time in the 1700s during the Enlightenment, and so one can
<br>reasonably claim that common carriage has been a founding principle of<br>modern democratic systems from the beginning. IMHO, it ought to remain so.<br><br>Dan<br>____________________________________________________________
<br>You received this message as a subscriber on the list:<br> <a href="mailto:governance@lists.cpsr.org">governance@lists.cpsr.org</a><br>To be removed from the list, send any message to:<br> <a href="mailto:governance-unsubscribe@lists.cpsr.org">
governance-unsubscribe@lists.cpsr.org</a><br><br>For all list information and functions, see:<br> <a href="http://lists.cpsr.org/lists/info/governance">http://lists.cpsr.org/lists/info/governance</a><br></blockquote></div>
<div><br><br clear="all"><br>-- <br>Linda D. Misek-Falkoff, Ph.D., J.D.</div>
<div>Individual Post..<br>For I.D. only here:<br>Coordination of Singular Organizations on Disability (IDC Steering). <br>Persons With Pain International. National Disability Party, International Disability Caucus.<br>IDC-ICT Taskforce.
<br>Respectful Interfaces* - Communications Coordination Committee For The U.N.<br>(Other Affiliations on Request). <br> </div>