• You did an excellent job understanding one aspect of the contemporary significance of Lane v. Cotton, which I meant to be resolved in a throw-away paragraph, so far as your own research into the original elements of the case went. But, because you read somewhat narrowly the context of the case and in that scope understood the law it made, or that Holt tried to make, your grasp of its contemporary significance largely concerned infrastructure development. Because you went no further into the history than Holdsworth, which is sometimes a good starting point but never a good stopping point, the relevance of Charles II's giving the Post Office franchise to his brother, the Duke of York, later James II, whose efforts to create a system of political surveillance through opening the post--which is the actual hidden subject of the case--escaped your attention. Seen as a case about liability for spying on communications through public/private allocation of responsibility, there were other recent analogies that might have been drawn.

• In short, while you didn't get it all, you undertook substantial effort and learned plenty. That deserves very positive evaluation. Thank you.

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.

“… the Internet is in some ways more like the road system than telephone or cable. These are essentially single purpose networks, each built for a particular application. … Manufacturers are free to invent and sell vehicles suitable for use on the road system. Builders are free to construct buildings, homes, offices, manufacturing plants that use the road system. But the road system itself is not owned by the private sector and its use is essentially open to all. The question is whether incentives can be found that would produce a similar effect for broadband Internet provision… ” Jim Harper, Cerf: Nationalize the Internet?, Technology Liberation Front (June 28, 2008) (http://techliberation.com/2008/06/27/cerf-nationalize-the-internet)

Those in favor of nationalizing the internet argue that nationalization will provide open, end to end architecture, where no particular party controls access, and increased internet access is generally available. Matthew Dunne. Let My People Go (Online): The Power of the FCC to Preempt State Laws That Prohibit Municipal Broadband, 107 Colum. L. Rev. 1126 at 1127.

Currently, under the 1996 Telecommunications Act, the FCC distinguishes between two relevant categories of entities. Those providing: (1) telecommunication services: “offering ... telecommunications for a fee directly to the public ... regardless of the facilities used,” 47 U.S.C. § 153(46) which are subject to mandatory regulation under Title II of the Communications Act of 1934 as common carriers and (2) information services: “offering ... a capability for [processing] information via telecommunications,” 47 U.S.C. § 153(20) which are almost completely outside the scope of the Act. Importantly, the FCC has classified both cable broadband and phone company DSL services as “information services”, because companies offering such services merely use telecommunications to provide end users with information services. (Broadband: National Cable & Telecommunications Ass'n v. Brand X Internet Services, 45 U.S. 967, 968 (U.S.,2005) (upholding FCC declaratory ruling: In re Inquiry Concerning High-Speed Access to Internet Over Cable and Other Facilities, 17 F.C.C.R. 4798, GN Docket No. 00-185 March 15, 2002; DSL: In the Matters of Appropriate Framework for Broadband Access to the Internet over Wireline Facilities, CC Docket No. 02-52, 02-33, 01-337, 95-20, 98-10, Report and Order and Notice of Proposed Rulemaking, FCC 05-150, released Sept. 23, 2005, para. 5) As information services, broadband and DSL operators are not subject to common carrier regulations and can thus act as gatekeepers, denying consumers access to certain services and steering them towards their preferred applications. Had they been subject to Title II regulations, as common carriers, they would have been prohibited from making any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services… 47 U.S.C. § 201.

Although the FCC has ruled that broadband and DSL service providers are exempt from Title II regulations, the FCC has indicated a willingness to consider “adopting any non-economic regulatory obligations that are necessary to ensure consumer protection and network security and reliability” under its Title I authority. In the Matters of Appropriate Framework for Broadband Access to the Internet over Wireline Facilities, CC Docket No. 02-52, 02-33, 01-337, 95-20, 98-10, Report and Order and Notice of Proposed Rulemaking, FCC 05-150, released Sept. 23, 2005, para. 111. The FCC has also issued the following policy statement, aimed at preserving and promoting the vibrant and open character of the Internet. Policy Statement: In The Matters Of Appropriate Framework For Broadband Access To The Internet Over Wireline Facilities, 20 F.C.C.R. 14986 CC Docket No. 02-33 September 23, 2005. This statement highlighted the following four principles which the FCC will incorporate into its ongoing policymaking decisions:

- To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to access the lawful Internet content of their choice.

- To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement.

- To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to connect their choice of legal devices that do not harm the network

- To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to competition among network providers, application and service providers, and content providers

Policy Statement: In The Matters Of Appropriate Framework For Broadband Access To The Internet Over Wireline Facilities, 20 F.C.C.R. 14986 CC Docket No. 02-33 September 23, 2005.

Thus, in conclusion, at present the liability of a cable broadband or DSL provider under federal regulations is relatively limited and in no way approaches that imposed on a common carrier under Title II of the 1934 Communications Act.

-- JaneS - 22 Dec 2008

• FCC_declaratory_ruling_on_Broadband_Cable.pdf: FCC Declaratory Ruling on Broadband Cable

• FCC_declaratory_ruling_on_DSL.pdf: FCC Declaratory Ruling on DSL

• National_Cable_v._Brand_X.pdf: National Cable v. Brand X

• Policy_Statement_regarding_Broadband_access.pdf: Policy Statement Re Broadband Access

Analysis

One of the reasons for this case’s significance is the influence of Chief Justice Holt’s dissenting opinion, which advances a notion of public employment and a broader vision of employer liability than envisioned by the other justices. In Lane, Holt argues that the postmaster’s situation should be analogous to that of the innkeeper and carrier (1 Ld. Raym. 646, 652—53), and he draws analogies to the responsibilities of the sheriff and gaoler for prisoners and impounded goods (651). He specifically argues that non governmental officials in public office (e.g. ship captain and inn keeper) were strictly liable for loss and thus, it would be anomalous to immunize a public servant whose office was created by statute as a means of protecting the public. Furthermore, prior to the establishment of post office, any person who erected a post office would be liable for miscarriage and thus, in Holt's opinion, subjects who are now locked into using the services of this postmaster general shouldn’t be deprived of a remedy that they previously had.

One of the reasons for this case’s significance is the influence of Chief Justice Holt’s dissenting opinion, which advances a notion of public employment and a broader vision of employer liability than envisioned by the other justices. In Lane, Holt argues that the postmaster’s situation should be analogous to that of the innkeeper and carrier (1 Ld. Raym. 646, 652—53), and he draws analogies to the responsibilities of the sheriff and gaoler for prisoners and impounded goods (651).

Notion of Public Employment

The dissent in Lane v. Cotton is seen as expanding liability by advancing the notion that people who hold themselves open to the public take on a duty to serve. Joseph Singer bases this view in part on Justice Holt’s assertion that, “where-ever any subject takes upon himself a public trust for the benefit of the rest of his fellow-subjects, he is eo ipso bound to serve the subject in all the things that are within the reach and comprehension of such an office, under the pain of an action against him.” Joseph Singer. No Right To Exclude. 90 Nw. U. L. Rev. 1283 at 1306, citing 88 Eng. Rep. 1458 (K.B. 1701) at 1464 (Holt, C.J., dissenting).

Singer claims that Holt advances this notion of public duty only in very broad strokes: “Holt does not explain what a ‘public employment’ is except to say that it involves taking on a ‘public trust’ for the benefit of one's fellow subjects or ‘a trade which is for the public good.’ The notion of public employment is refined in a subsequent case, Gisbourn v. Hurst, which takes up where Holt left off. In Gisbourn, holding oneself open to the public (by engaging in a common calling) immediately meant that one was engaged in public employment. Singer at 1306—07 citing 91 Eng. Rep. 220 (K.B. 1710).

Employer Liability

Justice Holt’s dissent in Lane v. Cotton is also significant because of its treatment of employer liability. One may view his opinion as an expansive attempt to hold employers responsible for the acts of their employees.

In the court opinion, Justice Gould denied any notion of employer liability for the acts of a negligent employee, seeing the defendants as “a community of officers acting in several trusts; and every one shall answer for himself, not one for the act of another” (648). Holt describes Justice Powis as being of the same opinion: “My brother Powis says, they are all fellow-servants; that is, the post-master and letter-carrier, because they all receive their salaries from the King.” 88 Eng. Rep. 1458 at 1467. The court thus finds that the servant may be held responsible for the loss, but the head of the department in question may not.

Holt, disagreeing with this result, attempts to justify his position upon the relevant statute, arguing that the post office position (as created by statute) is similar enough to that of a sheriff that it must be presumed the postmaster would have similar liability. He states “it must be presumed the Act designed the new officer should be liable; for why else should they make it so like in reason [to other offices such as that of the sheriff]” (1468). He also looks to the design of the statue, pointing out that one clause holds the postmaster responsible (and subject to forfeiting five pounds) for any failure to get horses, even though that is a task the statute also assigns to his deputies (1468).

Although Holt finds basis for his opinion in the statutory language, it seems that he is more influenced on public policy grounds. He views employers as in a position of power and responsibility over their employees: “here the defendant hath the power in him to manage the office by himself, his deputy or servant; and every deputy or servant is by him that puts him in, and therefore he ought to answer for him (1467). When he compares the office of postmaster to other callings, he offers a public policy rationale: “the same reason holds to charge them in this case as to charge carriers, inn-keepers, and such like, videlicet, the great inconvenience which would otherwise ensue, by reason of the dangerous temptation and opportunity they would lie under to imbezil goods intrusted to them, without possibility of proving a particular neglect” (1469).

Sir William Holdsworth argues that Holt’s dissent in the case should be viewed in the context of a larger movement to establish employer liability, which he credits to Holt’s opinions in that time period. In earlier cases, Holt espoused a broader vision of employer liability than his fellow justices. For example, in Boson v. Sandford (1691), he stated the principle that “whoever employs another is answerable for him, and undertakes for his care to all that make use of him,” and in Turberville v. Stamp (1689) he found liability because “if my servant doth anything prejudicial to another, it shall bind me, when it may be presumed that he acts by my authority, being about my business.” William Holdsworth. A History of English Law, Vol. 8 at 474, citing Boson v. Sandford, 2 Salk. 440 and Turberville v. Stamp , 1 Ld. Raym 264. In both cases, the court found for the plantiff on narrower grounds.

More on Liability and Agency

The case is also credited with confusing subsequent efforts to create and sort out distinctions between misfeasance, malfeasance, and nonfeasance in principles of liability. 20 A.L.R. 97 at pg. 24—25 of attachment. Holt’s opinion in the case is also considered the basis for Judge Story’s formulation of liability: “The agent is also personally liable to third persons for his own misfeasances and positive wrongs. But he is not, in general (for there are exceptions), liable to third persons for his own nonfeasances or omissions of duty, in the course of his employment. His liability, in these latter cases, is solely to his principal, there being no privity between him and such third persons, but the privity exists only between him and his principal. And hence the general maxim as to all such negligences and omissions of duty is, in cases of private agency, ‘respondeat superior.’” 20 A.L.R. 97 citing Story, Law of Agency § 308.

-- TeoTokunow - 06 Dec 2008

Teo and I will take this topic!

-- JaneS - 06 Nov 2008

Lane v. Cotton

What is the context and contemporary significance of Lane v. Cotton, 1 Ld. Raym 546 (1701)? Why is it relevant to the law of Internet infrastructure in the US?

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