The Internet is undergoing a rapid transition.  Two key, interrelated trends are easily discerned.  First, commercial traffic is now being carried on and across many networks.  Second, many networks are being operated more like businesses than research experiments.  New entities have been created as profit-seeking enterprises.  

In this environment, internet-work carriers strongly feel the need to protect themselves from possible liabilities arising out of use of the network.  If a carrier perceives uncertainty in the legal climate regarding its potential liability, it will naturally be inclined to reduce its risk by restricting or reserving the right to restrict uses of the network. 

These carriers typically provide or forward Usenet traffic, as well as access to various bulletin boards and online conferencing systems.  As such, possible areas of concern include allegedly defamatory statements, copyright infringement, invasion of privacy, obscenity, and criminal conspiracy, and trafficking in stolen information. 

If the carrier feels exposure, then the temptation will be to impose conditions of use to restrict the exposure. 

However well-intentioned, there are highly undesirable side-effects of acceptable use policies which are so motivated.  It can have the proverbial chilling effect on speech and expression.  Who is to say whether something is indeed defamatory or infringing?  If the carrier feels it is going to be dragged into such a mess, it may choose the “easy” way out by censoring or refusing to carry what may in fact be innocuous message traffic from the allegedly offending party.  This also puts the carrier in the position of making policy, that is, making decisions about what is legal and what isn’t.  This is not a role carriers should have to play or want to play. 

Telephone companies and other common carriers escape this problem because, as common carriers, they are statutorily immune from liability arising from the contents of messages they carry.   No one here is remotely suggesting that inter-network companies be taken the common carrier route, as it is inimical to the successful model of free enterprise, which is to be employed in the development of the next stage of the Internet.

The conclusion of our analysis is that some equivalent statutory protection for network carriers is called for in order to promote the orderly and free development of the net.  This discussion document outlines a proposed statute that would free “forwarders” of electronic communications from fears of legal liability that might incline them to be censors.

The purpose of the proposed legislation would be to facilitate the forwarding and transmission of electronic messages without undue fear of liability on the part of the party performing only a forwarding or transmission function. The goal is to encourage the use of new electronic media for transmission of information by providing explicitly that the sender, rather than the person who provides a medium for forwarding or transmission, is responsible for the content of the communication.