Is this the incident you are referring to? https://www.theregister.co.uk/2017/08/16/cloudflare_ceo_dail...
> "We could not remain neutral after these claims of secret support by Cloudflare."
So common carrier status is forfeited if a company reasonably terminates a contract due to the actions of the other party?
That being said, this argument is a recurring theme. It came up when spez edited comments on "/r/the_donald" and comes up any time a company enforces it's own TOS to a way the alt-right and libertarian crowds don't like.
I can come up with dozens of examples of companies exercising control over the content of their networks without issue. Reddit removed "fatpeoplehate" and related subs, youtube removes terrorism recruitment videos, and even Cloudflare removes malware (if pushed hard enough). None of those cases resulted in this mythical "common carrier" status from being removed, or caused them legal issues in other ways. If I'm wrong it should be easy enough to come up with examples proving it, but that won't happen.
sci-hub is appreciated by far more people than the alt-right and libertarian crowds. Is there any particular reason you felt the need to try to politicize it?
For some reason the alt-right has been all over this claim, and they use it whenever they get censored (either on reddit or twitter), and the libertarian crowd does the same here on this website.
Also, I do want to point out something- saying that someone's argument isn't valid because they have a misunderstanding of the law is not the same thing as taking a side. I think sci-hub is awesome, but I'm not going to defend it by making stuff up.
I have never seen "the libertarian crowd" (of which I count myself a member of) use "common carrier" language on anything outside Internet Service Providers, NN, and Title II regulations.
We defend free speech, and want to hold organizations that claim to support free speech to actually supporting free speech, We believe if a website says "They support free speech and want to allow free exchange of ideas" that they actually uphold those claims... to make a public claim of supporting free exchange of ideas or free speech on your platform then use heavily handed censorship is in our opinion very similar to bait and switch fraud and should be considered as such under the law even if you sneak in some provisions on page 100 of your 8point font legalese terms of service...
I know we libertarians are soo crazy with our ethics and principles...
"We don't take sites down if the content is not illegal" is a pretty clear consistent position to fall back on.
"We don't take sites down if the content is not illegal except that one time the CEO decided we would" is not, so you need a different reason, and they don't have one anymore.
Yes. That's why I can trash Verizon or smear Verizon's CEO name from a Verizon phone and Verizon cannot use it to terminate my service. Neither can AT&T.
[Edit: Responding here because HN is saying I'm posting too fast]
Non physical plant phone companies have never had any decisions on them that would affirm if they are or they are not common carriers. Verizon Wireless' data services subs behave as if they were.
Brand X decision is largely misunderstood because it deals with LECs, CLECs and companies that would like to get access to CLEC like benefits without being CLECs. Its scope was incredibly narrow which is why it took that many years for FCC's net neutrality rules be overturned ( and why it was done by the FCC ) and why it allowed FCC rules to stand.
Being disconnected due to utilizing it for harassment is also rather complicated ( and has lots of possible legal theories that have not been tested ):
- it is known that a phone company cannot disconnect the last "live line" service, even for non-payment.
- phone company may restrict one's ability to use the service as long as it continues to provide live line service ( for wireless service it is what allows one to use a locked or administratively disabled phone to make emergency calls ). There are however tons of hoops to jump through.
[Another edit:]
Things become a lot more interesting with MVNO because they are really nothing other than buying clubs even if what they buy is a network access. I believe MVNOs can actually terminate services for any reason as they should not fall under the common carrier label.
This in turn makes me wonder if Verizon/Sprint/ATT/TMO are actually MVNO themselves as I know for certain that entity from which customer's buy services are not the entities that operate it.
I'll point out too that Verizon or AT&T can terminate services for other things. If your line is used to harass people or make prank phone calls then it can be shut down. Common carrier doesn't mean that they have to allow everyone to use their service.
http://www.adweek.com/digital/net-neutrality-fcc-reclassifie...
Note that this is subject to change in the present.
Why not because of their countless previous similar moves?
I am proud that as an ISP in the 90s, and then as a VDN (CDN for video) in 2000s, we successfully kept all our clients online despite countless acts of bullying including CDA and DMCA.
We even had a major satellite carrier go after our various DC real estate providers and backbone connections.
You’d be amazed how long you can keep a client online just by requiring DMCA notices to adhere to the letter of the law before complying — usually weeks!
More than enough time to give clients notice and for clients to make arrangements.
My comment you replied to is still sitting at -4 :(
I merely pointed out the consequences of exercising editorial control: that once you show you can do it you lose any kind of argument based on your ability to do it or that you are only taking down content when the law requires it, such as when ordered to do so on account of a ruling by a judge.
My position is pretty consistent:
- Cloudflare for the longest used a broken argument to leave all kinds of crap websites up longer than they should have (for instance: booter sites)
- Their argumentation was that they would not censor sites based on content unless a court order was presented to them
- And so they were aiding and abetting many illegal schemes, which were too costly for the people suffering from those schemes to prosecute (for instance: because they were abroad)
- But when the Daily Stormer thing happened Cloudflare crossed their self imposed line
- At the time I pointed out that they would regret this, just like Slashdot folding for Scientology would regret it.
- And now we've come to the end of that line and Cloudflare now takes down sites because some vested commercial interest is harmed, as predicted.
So, I argue that they should exercise editorial control, and that they never had any shot at achieving common carrier protection (because (a) they are not a phone company and (b) because they are not essential, and (c) they never litigated that).
In this case it would have been nice for them to make a stand. Unfortunately for Cloudflare the publishing houses can now point at Cloudflare taking down the Daily Stormer without a court order, and there is no helping them for that. But just like before, Cloudflare simply is a commercial service, they have the ability (and sometimes the responsibility) to take down content. They are simply bad at picking their battles.
Then finally, I see the likes of Cloudflare as a cancer on the web. Way too much power in the hands of one entity in a jurisdiction that is too expensive to litigate in for the vast majority of the world. I hope the net/webservers will get fast enough and that bandwidth on the server side will get cheap enough that we do not need CDNs anymore.
I thought you were taking the position that CF should be a common carrier. Which to me seems like the logical stance.
Upthread you mentioned CF as not being essential, but based on the current limitations of the web - DoS protection is essential for small publishers. It would be too easy to silence marginalized communities with a small botnet.
Leaving it up to CF to be the judge jury and executioner is too much power for one company. We have democratic courts for this sort of thing. The web is broken and until then I think DoS protection is essential in exercising our first amendment.
CF took that position, in the past to defend their leaving all kinds of outright illegal stuff such as booter websites (sites that offer easy to use interfaces to DDOS tools) up and running.
> Which to me seems like the logical stance.
But that makes your argument more a strawman than anything else.
No, I don't think CF is special in any way, not until they litigate that and get an official stamp of approval that they are not going to have to comply with 'regular' takedown requests, since normally aiding and abetting criminals is bad.
CF does not have to provide service to every comer and they have gone out of their way to prove this.
> Leaving it up to CF to be the judge jury and executioner is too much power for one company.
That I agree with, but this is no different from Facebook, Google or any other tech giant. Cloudflare claimed to be somehow special in this respect, I've yet to see FB or Google make such an argument.
Though, Google to some extent tried to do this by claiming for a while that only their algorithms determined what is visible without human input. Nowadays human input is as important a signal as the algorithms and it has final say too.
> We have democratic courts for this sort of thing. The web is broken and until then I think DoS protection is essential in exercising our first amendment.
Unfortunately, your point of view is still US centric, which means you are missing an important piece of the puzzle here. The web is much larger than the United States, 'first amendment' protections do not apply outside of the US, and Cloudflare is routinely hiding behind that first amendment in a way that makes it very hard to prosecute - or even do anything about - the criminals they enable.
Cloudflare wishes to have it both ways: to claim first amendment rights when it suits them and to play judge, jury and executioner when it does not. And in the meantime the rest of the world has to dance to their tune because they are not in the jurisdiction of the victims. That's not a tenable stance in the long term and the Elsevier case shows you quite nicely just how hypocritical this is.
CF is closer to an ISP than something like FB because CF only provides the pipes. It's literally providing an internet service. I'm aware they haven't legally earned that distinction, but from a logical perspective - mirroring a server is nothing like providing a social networking platform.
Common Carrier is a legal term that refers to regulation under Title II of the Telecommunications Act. It grants the FCC the ability to classify certain communication companies as common carriers. That status can only be acquired by FCC action, not implicitly by following any standard set of rules.
The argument that taking action once creates a liability to police all content you're serving stems from an outdated court case.
The Communications Decency Act of 1996(!) specifically addressed the issue:
[..] Through the so-called Good Samaritan provision, [Section 230] also protects ISPs from liability for restricting access to certain material or giving others the technical means to restrict access to that material.
Agreed, they're not a phone company to begin with. But they did try to use that argument and they definitely did not help themselves.
A better argument would have been to claim they don't have the technical capability, that might have bought them some time but then too they should not have shown first that they do have that capability. All in all a less than stellar performance.
But you can see how their reasoning went from "If ISPs can be common carriers why couldn't a CDN be a common carrier?". That said I can see the case for domain registrars and the Tor network long before I can see one for a CDN.
Try hosting a site on cloudflare that significantly upsets a major SV company and see what happens.
Hardly a problem with most people, but they certainly exercise content-level discrimination (in the most neutral sense of the word).
That case is also complicated by the claim that they dropped that site in response to Daily Stormer people claiming CloudFlare supported their ideology. Given the number of objectionable sites which they continue to provide service to, that seems plausible.
I have no idea where the remark about the other tech giants comes from, though.
The idea that exercising some control over the content on someone's network or application removed their various liability shields is also completely false. Youtube removes pornography and terror related videos, and sites like reddit remove "abusive" (defined by their TOS, not any law) content, all the time. Never once has this broken their liability shield.
It doesn't break the liability shield because it's not being selectively enforced.
If YouTube deleted some porn but not others, this protection would no longer apply. Reddit is allowed to delete content that violates their ToS without needing to answer to anybody.
This is literally the opposite of what you are claiming. To quote wikipedia,
"The act was passed in part in reaction to the 1995 decision in Stratton Oakmont, Inc. v. Prodigy Services Co.,[3] 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."
> 18 U.S. Code § 2257 ( https://www.law.cornell.edu/uscode/text/18/2257 )
This is the law requiring record keeping for producers of pornographic content. This has nothing to do with what we're discussing here.
> 47 U.S. Code § 231 ( https://www.law.cornell.edu/uscode/text/47/231 )
This law requires people who make porn available to not allow minors to access it. The closest thing I can see that relates to our point is that it grants immunity to ISPs for porn sent over their network.
You said it's completely false that exercising control over content on one's network diminishes a provider's ability to claim safe harbor. I've given you two laws on the books in the US that say otherwise. What are you basing your claims on?
Government/whatever party has to compensate a common carrier a reasonable amount of money for determining and filtering content. Not having tools to do it means a company gets to say "this would cost X, write us a check". If X is too big, government/other party tends to walk away. In my previous life, we have used this argument successfully to quash several court orders. The reason why we were successful is because a very smart attorney that happened to be a relative of a founder convinced him one day that under no circumstances should we develop such tools ahead of time.
One of our competitors had these tools developed. They had a similar court order served on them. They attempted to use the same argument we used. They failed because the government offered court the evidence that those tools already existed and were used by our competitor and hence there was no undue burden.
[Edit: Responding here due to rate limiting]
> It's FUD because it does not apply, at all, to the existing scenario. Common Carriers have specific legal meanings, and internet companies don't fall under that.
This is also unclear. Common carrier is reasonably well defined based on what was known about certain technologies at the time.
NSPs/webhosting providers/CDNs/etc have never litigated their common carrier status to my knowledge as in most of the cases it does not appear that being a common carrier is beneficial to them. This does not, however, mean that there cannot be a situation where being a common carrier would not be advantageous to a NSP/CDN/webhoster. This is why most of them would prefer to behave like common carriers even if they are not - it is optionality and having more options is typically better.
This comes up all the time. During the Obama administration there was talk about reclassifying network services so that this would apply (it would make things like home internet far more competitive if it was). That never happened.
ISPs actually do. And they are very much internet companies.
CF's whole mistake was to pretend that they were nothing more than dumb pipes and that what was legal or at least not explicitly ruled forbidden on a case-by-case basis was good enough for them. They never were dumb pipes, they always had editorial control and they provided the proof of this themselves.
Cloudflare showing they could take down some websites because of their content conveniently set them up to be a pressure point in other cases as well such as this one. The argument that they are 'just a common carrier' and have no influence over the content they serve went out the window that day.