shouting loudly

TX court: ISPs aren’t internet editors. (And why that matters for net neutrality.)

In a child porn case in Texas, a federal judge dismissed Yahoo! as a defendant on the grounds that service providers are not responsible for the content posted by others.

The case, Doe v. Bates (pdf), involves a man who moderated a Yahoo! group that traded in the illegal content. In addition to going after the moderator, (Mark Bates, who is already in prison for his behavior), the plaintiff went after Yahoo! with allegations such as conspiracy and negligence.

District Judge David Folsom shot back with 47 USC § 230, which explicitly states:

(c)(1) No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

The amount of content that goes through the email server at my school in one day is staggering, despite serving just a few hundred employees and grad students. It’s impractical to hold ISPs legally liable for the content posted by others, so the law states clearly that they’re not publishers.

This matters in the net neutrality debate. Some have tried to claim that net neutrality is a violation of ISPs’ First Amendment rights. As neutrality opponent Christopher Yoo claims, “Mandating content nondiscrimination would represent an ill-advised interference with the exercise of editorial discretion that is playing an increasingly important role on the Internet”(p. 1905).

It only seems fair that the legal right of editorial discretion would have to come with its responsibilities, which ISPs don’t want. They want the ability to stop any content they choose for any reason, financial or otherwise, but to have no liability whatsoever for the content they permit.

Newspapers have the rights and responsibilities of editors, as do TV stations, book publishers, and website publishers. They can cut or keep anything they want, but if it’s illegal, they’re responsible.

If you’re an editor, you’re legally responsible for the content. Hence, modus tolens, if you’re not legally responsible for the content, you’re not an editor. In other words, Comcast’s First Amendment claim over the content coming into your home is pure bunk. They aren’t really editors and never wanted to be.