On 11/18/2013 1:35 PM, Richard Pieri wrote:
As a more serious take on the topic, hosting providers are -- or are
supposed to be -- common carriers. They can't scan users' content. If
they did that then they'd cease being common carriers and they'd lose
their safe harbor and Good Samaritan protections.
I think you misunderstand the current state of the law. What you say
was true as of a 1995 court decision, but was changed by Section 230 of
the 1996 Communications Decency Act, the only part of it that hasn't
been overturned. Wikipedia's entry on Section 230 of the CDA
<http://en.wikipedia.org/wiki/Section_230_of_the_Communications_Decency_Act>
explains it as follows:
Unlike the more controversial anti-indecency provisions which were
later ruled unconstitutional, this portion of the Act remains in
force, and enhances free speech by making it unnecessary for ISPs
and other service providers to unduly restrict customers' actions
for fear of being found legally liable for customers' conduct. The
act was passed in part in reaction to the 1995 decision in Stratton
Oakmont, Inc. v. Prodigy Services Co., which suggested that service
providers who assumed an editorial role with regard to customer
content, thus became publishers, and legally responsible for libel
and other torts committed by customers. This act was passed to
specifically enhance service providers' ability to delete or
otherwise monitor content without themselves becoming publishers. In
Zeran v. America Online, Inc., the Court notes that "Congress
enacted Section 230 to remove the disincentives to self-regulation
created by the Stratton Oakmont decision. Under that court's
holding, computer service providers who regulated the dissemination
of offensive material on their services risked subjecting themselves
to liability, because such regulation cast the service provider in
the role of a publisher. Fearing that the specter of liability would
therefore deter service providers from blocking and screening
offensive material, Congress enacted Section 230's broad immunity
"to remove disincentives for the development and utilization of
blocking and filtering technologies that empower parents to restrict
their children's access to objectionable or inappropriate online
material." In addition, Zeran notes "the amount of information
communicated via interactive computer services is . . . staggering.
The specter of tort liability in an area of such prolific speech
would have an obviously chilling effect. It would be impossible for
service providers to screen each of their millions of postings for
possible problems. Faced with potential liability for each message
republished by their services, interactive computer service
providers might choose to severely restrict the number and type of
messages posted. Congress considered the weight of the speech
interests implicated and chose to immunize service providers to
avoid any such restrictive effect."
So, since service providers can now remove material they consider
offensive without subjecting themselves to liability, there's no reason
they couldn't scan users' content for malware without subjecting
themselves to liability.
Of course, as with many things, this is a double-edged sword. There's
also nothing to stop them from censoring anything else they disagree
with, say articles arguing in favor of network neutrality, for example.
-- Mark Rosenthal
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