Update: Verizon has apparently backed off its ill-considered stance. They’re blaming pre-existing “policy,” but from the frenzied dissembling, I’m willing to bet somebody got fired over this. As the Gonzales/Monica Goodling DOJ demonstrated so clearly, the nature of the policy is much less important than the intellectual philosophy and ethical leanings of the people assigned to carry it out.
But legal experts said private companies like Verizon probably have the legal right to decide which messages to carry. The laws that forbid common carriers from interfering with voice transmissions on ordinary phone lines do not apply to text messages.
In reversing course today, Verizon did not disclaim the power to block messages it deemed inappropriate.
This is a very interesting stance to take. Why would common-carrier restrictions NOT apply? I understand that mobile phone companies can probably distinguish SMS traffic from normal voice traffic, but why would they want to take any responsibility at all for the content of the message? It would seem that such responsibility would expose them to all kinds of financial danger in the event that someone used a text message to accomplish some unscrupulous or unlawful objective and Verizon didn’t stop it. Poorly-reasoned lizard brain reactions to hot-button evangelical issues must take a back seat to the financial well-being of the company.
The principle is, phone companies in general are not liable for illegal activity that their customers conduct using their equipment. For example, say that Alice and Bob were planning to rob a bank. Alice called Dave, the getaway driver, to coordinate their schedules and to remind Dave to bring the guns. When Alice and Bob and Dave actually stage the heist, it would be laughable to suggest that AT&T bears any liability for their actions as a consequence of furnishing the wires which carried the call.
However, this get-out-of-jail-free card for the phone companies comes at a price, and that price is that those phone companies may not inspect or restrict the traffic on thier lines. (Let’s pretend, for the sake of this argrument, that we don’t already know that AT&T, Verizon, Sprint, BellSouth, and all of the major ILECs are in fact allowing the NSA to sniff all packets going through their networks. It works better that way.) It’s all just bits to them, 1s and 0s on a fiber-optic cable, and they aren’t supposed to care where the bits came from or where they are going or what elements of speech those bits might represent.
The same principle of common carrier status applies under the Digital Millenium Copyright Act to protect ISPs from copyright infringement claims when one of their customers posts infringing material on a website. If the ISP is truly acting as a common carrier, they are not pro-actively policing any of the bits on their wires, and it’s up to the copyright owner to complain to the ISP about the customer who is in violation. It’s not up to the ISP to constantly police their own network, because that would violate the presumption that they are a common carrier, and (here’s the big brass ring) would therefore impose liability for all of the criminal acts of its customers upon the ISP or phone company itself.
Does Verizon really want to claim responsibility to inspect and approve all of the traffic on its network? I rather think not.
My original post is below:
You should be. Here’s why. When private companies have an absolute veto on modes of communication, no speech is truly free.
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