Pensieri di un lunatico minore

Editing, Blogging and Common Carrier

James Robertson ruminates on the blogger code of conduct offered by Tim O’Reilly. Specifically, a concern of Jeff Jarvis about legal liability. I can’t say as I’m a lawyer, though I associate with more than a few. I have however, been in a situation somewhat similar to this in the past.

Specifically, Jeff Jarvis is concerned about precept number 1: “We take responsibility for our own words and for the comments we allow on our blog.” He’s right to be concerned, I think. When I first started weilding a modicum of power in the Internet—specifically at Sprint—we ran everything related to the Internet as though it would be classified¹ under common carrier provisions under Title II of the Communications Act of 1934. What that means, effectively, is that so long as you provide neutral carriage, regardless of content², you fall within the safe harbor provisions of the act. It was therefore our official position that we did not censor, edit, or otherwise interfere with the transmission of information. Furthermore, we simply did not even look at the information in a way that would allow us to make a judgement on the content. It was our concern about traffic flows and routing only that would guide any investigation of content, and even then it often required legal guidance.

This specific guidance was put to the test, very much on our watch, with the Green Card spam put out by the dynamic spam duo of Laurence A. Center and Martha S. Siegel. While the original spam was sent out while they were a customer of another ISP, they were quickly rebuked and came looking for bandwidth from Sprint. After discussion within the engineering department, and with our legal office, it was decided to refuse them service unless they were willing to sign a specific legal agreement not to send any form of unsolicited email using their Sprint circuit. The wording of this was exceptionally hairy so as to not interfere with our status as a common carrier.

So where does this leave bloggers? Well, that’s a bit more difficult. My general guideline has always been that the more editorialship you exercise over your comments, the more legal culpability you have for what they contain. My personal policy has been not to delete anything that is not patently illegal, or simply spam. Were I to begin to edit, or remove, comments that I simply didn’t agree with, then I think that would make me responsible implicitly for anything that remained.

As such, I think that Tim O’Reilly’s suggestions, though forward-thinking and generally conceptually sound, fall on poor legal foundation. Were we to implement his thoughts, I think the only defensible position would be one where every single comment would require approval prior to posting, and that would stifle the conversation more than it would reduce any negative impact of ill-considered statements by others.

¹ This was ammended and modified heavily by the Telecommunications Act of 1996, but at the time, that hadn’t been written, and I believe most pieces stay in place for this discussion.

² While not entirely true, this is largely meant to mean “lawful content,” rather than simply all content.