>"Exercise control over content once"

Is this the incident you are referring to? https://www.theregister.co.uk/2017/08/16/cloudflare_ceo_dail...

Regardless of whether that's the reference, it certainly satisfies the conditions of the argument.

I'd imagine so. And because of that move they lost their common carrier argument.

> And because of that move they lost their common carrier argument.

> "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?

Honestly part of the problem with this discussion is that people are just making stuff up. CDNs never had "Common Carrier" status, so all arguments around it make no sense.

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.

Reddit has never tried to argue it should be thought of as a common carrier to a judge. Cloud fare did.

>to a way the alt-right and libertarian crowds don't like.

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?

Please reread what I said. My comment had nothing to do with sci-hub at all- I am explicitly talking about the people who keep bringing up the "common carrier" claims whenever someone removes content they don't like.

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.

>>the libertarian crowd does the same here on this website.

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...

There's no such thing as common carrier status for CDNs, but, when you're in court trying not to take a site down you'll have to make arguments about why you took others down but don't want to take this one down, part of that is how consistently you applied your own standards.

"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.

Exactly. Cloudflare had an annoying position, but at least it was a consistent one. Now they have an annoying inconsistent position which makes it much easier to get them to move if you're a large enough party.

> So common carrier status is forfeited if a company reasonably terminates a contract due to the actions of the other party?

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.

Can you find an example of this that isn't a phone company? Common carrier only applies to phone companies, it doesn't apply to CDNs, content providers in general, or websites.

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.

Every ISP in the United States has common carrier status.

http://www.adweek.com/digital/net-neutrality-fcc-reclassifie...

Note that this is subject to change in the present.

>And because of that move

Why not because of their countless previous similar moves?

You’re right about editorial control.

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.

Didn't you argue that CF should exercise control over content when the Daily Stormer account was terminated?

My comment you replied to is still sitting at -4 :(

https://news.ycombinator.com/item?id=15032696

This is a great reminder for those who question the logic of free speech.

This is a great reminder to not auto-upvote an HN darling when you see the handle. It's pathetic this comment pointing out their hypocrisy is buried at the bottom of the thread.

And where did you see me advocating in this thread that they should not exercise editorial control?

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.

Apologies, I misread what you originally wrote. You are consistent after all.

I want to ironically downvote this, but I won’t.

Yes I did. And where do you see me arguing for the opposite?

> The argument that they are 'just a common carrier' and have no influence over the content they serve went out the window that day.

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.

> I thought you were taking the position that CF should be a common carrier.

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.

I agree CF wishes to have it both ways. I think they should have never been the content police. Policing should be left to the police. Go after the host server and the criminals who set them up. Countries have IP and extradition agreements for exactly this sort of thing.

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.

They never had a common carrier argument that held water.

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.

> They never had a common carrier argument that held water.

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.

I can’t see how that argument would hold water. As a DNS provider, removing DNS records is clearly something they are capable of, regardless of whether they have demonstrated that ability.

Me neither, it was a bs argument to begin with.

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.