We cannot split power and responsibility. ISPs will have to have both or neither. Certainly it is unfair to make ISPs responsible for what they are carrying yet give them no power to control it; it exposes them to lawsuits which they cannot defend against, lawsuit we will all pay for. As for power without responsibility, that is just plain odious, but in addition to that there is also the Digital Millenium Copyright Act, which sets up 'safe harbors' for service providers (of all kinds of digital services, not just ISPs) that do not filter based content or exert any other control.

But do we want this? In the US, we see the ISPs taking this power, though we haven't seen a major case on the "responsibility" side of the issue. AOL Censorship? Even if this isn't true, it's hardly the first time I've heard of stuff like this. Prodigy was notorious for similar behavior. And of course, the attempt by Conxion to editorially influence Dave Winer over comments about Conxion, which started this essay off.

You do not sue somebody for libel unless they had the power to not commit that libel. By giving the responsibility to the ISPs for the content they cover, we have also implicitly granted them editorial control over all the content that flows through them. Read that again; there's nothing that limits this power to "only things that might be illegal", as that's just not how it works... there's hardly a <META HTTP-EQUIV="

If all the presses are owned by corporations, and corporations are to be held responsible for what is coming off of those "presses", as they are being held responsible in Britain and Germany, this must imply that the presses have power to control what is coming off of them, not just in a "we will print this, we will not print that" sort of way, but in a much deeper, full-editorial control sort of way, which is quite different!

Today, all presses are owned by corporations, and this really changes things. Corporations do not need the right to free speech, nor do they feel compelled to grant it to their customers. If I say something nasty about Windows on a Microsoft site, they are not inclined to just leave it there. Thus, with the right to a free press more or less monopolized by corporations, the only right left to people is the literal right to freely speak.

They do not want to publish this. As an up-front, contractual agreement between two parties for services rendered, this is not a problem. There are plenty of people who will publish pornography and hatred, as Userland hardly has a monopoly on web site hosting! However, that is not giving them the right to come into one of my web pages and change it because I said something nasty about Frontier.

You will not use any services provided by UserLand for purposes of distributing pornography or to promote hatred.

I think this "not forcing" idea explains the agreement I had to make with Userland before they allowed me to host this site. One part of that agreement reads:

Certainly one cannot force a press owner to print something against their will. It was to be assumed in the times that the Constitution was written that if you could not find a press owner to print something, it was not impossible to band enough people together to buy a press of your own.

Obviously, in the time that this was written there was only speech, literally speaking out in the streets or townhouses, or the press, a literal machine with which to turn out many many copies of a written work quickly. Certainly there was no internet! But I think we all quite clearly understand what is intended here, which is that the people are free to speak their mind. The primary purpose of this speech is to advance the Great Conversation, which is supposed to be how we run this country.