Lane v. Cotton

Lane v. Cotton is in part a debate over the requirements and liability of parties providing public services. This debate concerns the modern infrastructure of the internet because the open nature and free character of the internet depend upon the liability and requirements of internet service providers. While some have called for the nationalization of the internet to allow for open access free from control, the prevailing system has been established as essentially private in nature. Although the FCC made some commitment in its policy statement to “preserve and promote” the internet’s open nature, the 1996 Act effectively insulates internet providers from the obligations and liability that they would face if they were treated as common carriers.

The same fundamental tension lies at the heart of Lane v. Cotton. While Justice Holt advocated a broad notion of public duty and public trust that would provide liability and ensure proper service of the public, the court ultimately insulated the postmaster from liability. In the realm of internet infrastructure we see a similar result. The Telecommunications Act has shielded internet providers from common carrier status, freeing them from Title II obligations regarding discrimination and exclusion. Common carriage would have provided social value because it necessitated “service on a non-discriminatory basis, neutral as to use and user… [and functioned as] an important element in establishing a free flow of information, neutral as to its content.” (Eli M. Noam. Will Universal Service and Common Carriage Survive the Telecommunications Act of 1996? 97 Colum. L. Rev. 955, 963). Instead of imposing protective restrictions on service providers, current internet infrastructure in the U.S. limits their liability instead. A further example of this is evident in the Communications Decency Act, which (under section 230) gives internet service providers protection from being held liable for information provided by others. While that particular feature of the law may be helpful for preserving the open nature of the internet, section 230 also allows ISPs to restrict access to information, making them able to engage in censorship of certain material.