[Air-l] free speech via ISPs

[ericgoldman at onebox.com]

Only "state actors" are obligated to adhere to the First Amendment.  Private ISPs are not state actors, and more than a handful of legal cases have confirmed this (the 2 seminal cases are CompuServe v. Cyber Promotions and AOL v. Cyber Promotions).  So it's not accurate to say in this context that a user can waive First Amendment protection by contract; because the First Amendment does not restrict private ISPs, irrespective of their contract.  Eric.
-- 
Eric Goldman
Marquette University Law School
ericgoldman at onebox.com
Personal home page: http://eric_goldman.tripod.com

-----Original Message-----
From:     Sandra Braman <sbraman at wi.rr.com>
Sent:     Sun, 23 Feb 2003 11:54:34 -0600
To:       air-l at aoir.org
Subject:  [Air-l] free speech via ISPs

David Silver comments that many folks he knows are opening
yahoo or other accounts separate from those they hold
at universities and/or their employers and/or with smaller
ISPs because of fear that political speech during these
times may be restricted in those other venues.  Before
assuming that any particular type or specific example of
a type of ISP-like service provider offers anything different
in the way of potential constraints on free speech, read
the terms of service and/or acceptable use policies!  

I did a comparative study of these agreements from about 
30 different ISP-like entities (currently in press as
Advadntage ISP:  Terms of service as media law (with
Stephanie Lynch), in Lorrie Cranor & Steve Wildman, Eds., 
RETHINKING RIGHTS AND REGULATIONS:  INSTITUTIONAL
RESPONSES TO NEW COMMUNICATION TECHNOLOGIES
(Cambridge:  MIT Press).  As they existed in spring of 2002,
the time of the study, there was not much difference across
ISPs on this point and almost all of them constrained speech
rights in ways that would be deemed unconstitutionally 
overbroad were they not agreed to by the contract that is
your agreement with your service provider.

Historically one has always been able to sign away one's
First Amendment rights by contract, but historically that
has only affected a few, in circumstances in which there
were other alternatives to agreeing to the contract. Under
current circumstances, as ISP terms of service and
acceptable use policies increasingly conform, we have no
choice but to sign these agreements.  A serious threat
to free speech.

Sandra Braman