[governance] IGP Alert: "Net Neutrality as Global Principle for Internet Governance"

[linda misek-falkoff]

Such fluent discourse here - seems like published articles (the better
ones).
Such important issues.

If someone has the venue, I would like to present some time on:

*Experience with Judges in Cyberlibel Cases, in Especial Relation to Freedom
of Speech and Jurisdictional Reach..*

By the way, problems of take down or retraction after cyberspread - are
indeed focal and awesome. Or aweing (wd?)...

Say on.


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