4 ms·

This is pure FUD. The fact that Cloudflare took down one site does not negate the common carrier laws that never applied to Cloudflare in the first place. No CD

by tedivm 9y ago

This is pure FUD. The fact that Cloudflare took down one site does not negate the common carrier laws that never applied to Cloudflare in the first place. No CDN is a "common carrier". 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.

notyourday 9y ago
That's actually not a fud. 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.
- tedivm 9y ago
  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 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.
  - jacquesm 9y ago
    > internet companies don't fall under that. 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.
jstarfish 9y ago
> The idea that exercising some control over the content on someone's network or application removed their various liability shields is also completely false 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.
- tedivm 9y ago
  What are you basing this off of? Can you cite any source at all for this?
  - jsjohnst 9y ago
    Seems like they are mishmashing common carrier, the safe harbor provisions of the DMCA, and some magic dust and calling it “liability shield”.
  - jstarfish 9y ago
    Section 230 of the Communications Decency Act, 18 U.S. Code § 2257 and 47 U.S. Code § 231.
    - tedivm 9y ago
      > Section 230 of the Communications Decency Act 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 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 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.

by tedivm 9y ago

notyourday 9y ago

That's actually not a fud. 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.

tedivm 9y ago
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 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.
- jacquesm 9y ago
  > internet companies don't fall under that. 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.

jstarfish 9y ago

> The idea that exercising some control over the content on someone's network or application removed their various liability shields is also completely false 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.

tedivm 9y ago
What are you basing this off of? Can you cite any source at all for this?
- jsjohnst 9y ago
  Seems like they are mishmashing common carrier, the safe harbor provisions of the DMCA, and some magic dust and calling it “liability shield”.
- jstarfish 9y ago
  Section 230 of the Communications Decency Act, 18 U.S. Code § 2257 and 47 U.S. Code § 231.
  - tedivm 9y ago
    > Section 230 of the Communications Decency Act 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 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 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.