This Article argues that under the CDA and OCILLA, Congress adopted facially inconsistent approaches towards ISP liability for expression. Nonetheless, despite the overt differences, it is possible to discern an underlying principle for determining when ISPs should be considered speakers that reconciles this inconsistency. Put simply, the CDA and OCILLA support an approach toward determining when ISPs are speakers that focuses on whether an ISP exercises editorial control over its network. This approach is evidenced by the fact that both statutes recognize that ISPs are able to exercise editorial control over any and all content on their networks, and both encourage the exercise of that control in one form or another.
Part I summarizes the open access controversy and explains why the search for a principled means of analyzing the free speech claims of ISPs is necessary. Parts II & III examine the CDA and OCILLA and their respective treatments of ISPs in light of First Amendment concerns. Lastly, part IV argues that the congressional treatment of ISPs under those statutes are facilly at odds with one another and cannot be reconciled by coherent legal principles. Part IV concludes, however, that despite the obvious differences between the CDA and OCILLA, it is possible to discern an underlying principle based on editorial control for recognizing when, according to Congress, ISPs can and should be treated as speakers.
Raymond Shih Ray Ku,
Irreconcilable Congressional Treatment of Internet Service Providers as Speakers,
3 Vanderbilt Journal of Entertainment and Technology Law
Available at: https://scholarship.law.vanderbilt.edu/jetlaw/vol3/iss1/5