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  • On the post: The Problem With The Otherwise Very Good And Very Important Eleventh Circuit Decision On The Florida Social Media Law

    ThorsProvoni ( profile ), 24 May, 2022 @ 11:39am

    Stop Confusing a Public Utility or Public Franchise Common Carriage

    Did you ever hear of mass mailing? It's a common carriage service. I wrote many of the AT&T FCC filings that related to NxM common carriage services. In the 80s AT&T was already offering common carriage services that corresponded to Twitter's services. AT&T provided these services both via circuit-switched technology and also via packet-switched technology. It's a misconception to believe that the Internet/WWW sprang into existence de novo in 1989. I was there when Leonard Kleinrock began in 1959 to conceive of the network that became the Arpanet, which evolved into the Internet. Others had the same idea.

  • On the post: The Problem With The Otherwise Very Good And Very Important Eleventh Circuit Decision On The Florida Social Media Law

    ThorsProvoni ( profile ), 24 May, 2022 @ 11:29am

    An Interactive Computer Service Can Provide Common Carriage

    There is no statutory basis for the federal government to regulate ICS common carriage. Article VI ¶ 2 and the 10th Amendment leave ICS common carriage regulation to the states. I recommend that all states enact the Massachusetts common carriage statutes.

  • On the post: The Problem With The Otherwise Very Good And Very Important Eleventh Circuit Decision On The Florida Social Media Law

    ThorsProvoni ( profile ), 24 May, 2022 @ 11:07am

    Different Jurisdiction

    The Commonwealth of Massachusetts does not have to pay any attention to either the 5th or 11th Circuit unless SCOTUS says it must. The Massachusetts definition of common carriage and the FCC definition of telecommunication common carriage have always co-existed. The Massachusetts definition is used for the local loop. The FCC definition is used for telecommunications common carriage from one local telephone company to another.

  • On the post: The Problem With The Otherwise Very Good And Very Important Eleventh Circuit Decision On The Florida Social Media Law

    ThorsProvoni ( profile ), 24 May, 2022 @ 10:58am

    Article I, Section 9, Clause 3

    Article I, Section 9, Clause 3

    No Bill of Attainder or ex post facto Law shall be passed.
    No federal or state law explicitly declares FedEx to be a common carrier, but it is because it meets the definition. Twitter meets the definition. The law codes from the 19th century refer to common carriers of messages and don't distinguish the carriage of a message on paper from the carriage of a message by electronic means. The Civil Code of the State of California: Adopted March 21, 1872 is a typical example, but I have seen a reference in court decisions and in law codes to common carriers of messages by electronic means back to the 1850s. If I search UK law, I would probably find a reference to a common carrier of messages back to the 1840s. Telegraph systems started earlier in the UK than in the USA. A tweet is a message. Twitter is a common carrier of messages. The initial Twitter service started on SMS and not on the Internet. Twitter provided common carriage on top of SMS. When Twitter moved its service to the Internet/WWW, did the service cease to be common carriage of messages?

  • On the post: The Problem With The Otherwise Very Good And Very Important Eleventh Circuit Decision On The Florida Social Media Law

    ThorsProvoni ( profile ), 24 May, 2022 @ 09:30am

    A Social Medium and Common Carriage

    If a social medium makes money from a common carriage service, it must obey common carriage law with respect to the common carriage service.

  • On the post: The Problem With The Otherwise Very Good And Very Important Eleventh Circuit Decision On The Florida Social Media Law

    ThorsProvoni ( profile ), 24 May, 2022 @ 09:15am

    Texas and Florida Should Skip Trying to Regulate Moderation

    Texas and Florida should enact the Massachusetts Statutes into their law codes in order to stop social medium platform discrimination against users. MGL c. 159, s. 1 and s. 2

    Section 1. Every common carrier of merchandise or other property shall receive, transport and forward all property offered for such purposes by other such carriers as promptly, faithfully and impartially, at as low rates of charge, and in a manner and on terms and conditions as favorable to the carrier offering such property, as he on the same day and at the same place receives, forwards and transports, in the ordinary course of business, property of a like description offered by persons other than such carriers. Such carrier shall not discriminate against any particular person or subject him to any undue or unreasonable prejudice or disadvantage. The supreme judicial or superior court shall have jurisdiction in equity to enforce this section. Section 2. Every such carrier who wilfully neglects or refuses to comply with the preceding section shall forfeit not less than fifty nor more than five hundred dollars, to the person offering the property for transportation.
    After paying out penalties in the $10,000,000 to $100,000,000 range, the social medium companies will start to behave.

  • On the post: Funniest/Most Insightful Comments Of The Week At Techdirt

    ThorsProvoni ( profile ), 24 May, 2022 @ 09:07am

    Please Learn the Definitions

    The definition of valid answer makes no sense. A social medium service has no legal definition. Message carriage has been a matter of state or colony law since the colonial times. In the 1850s this law was extended to electronic transmission of digital literary property by telegraph. Under message common carriage law, carriage of a digital literary property by tweet service does not differ substantially from carriage of a digital literary property by a telegraph service. Just as the 1869 Massachusetts common carriage law was extended to telex service, email service, and PSPDN message service, it is extended to tweet service. A law would have to be enacted for Twitter to be freed from obligation under existing law. Twitter carries neither analog speech (e.g. POTS) nor digital speech (e.g. ISDN or DMI). The FCC regulates telecommunications common carriers, and the Federal government has made it illegal to discriminate in the interstate common carriage of such speech. See USC Title 47. Such speech is usually not considered merchandise, an item, or property for the purpose of common carriage law. Speech via VOIP (or other digitization with packetization) is treated in a separate category. Intrastate carriage of above speech types is a matter of state law and local phone companies are under state common carriage law or state public utility law. State common carriage law and state public utility law forbid discrimination among customers. Twitter carries or transports digital literary property. For example, in Massachusetts common carriage of digital literary property is governed by MGL c. 159, s. 1 and s. 2. These statutes also govern the carriage either of a digital message by a telegraph or of a message by Fedex on a paper substrate. Neither Twitter, a telegraph company, nor Fedex may discriminate among members of the public.

  • On the post: The Problem With The Otherwise Very Good And Very Important Eleventh Circuit Decision On The Florida Social Media Law

    ThorsProvoni ( profile ), 24 May, 2022 @ 08:34am

    Some Clarification

    Interstate rail transport service is a federally-regulated common carriage service, but it is not an FCC-regulated telecommunications common carriage service. If a company, which owns a railway line, opens a restaurant on a train, the restaurant comes under the CRA of 1964 and not under federal railway common carriage regulations. Separate sets of laws and regulations govern:

    • a common carriage service,
    • a telecommunications common carriage service,
    • a public utility service,
    • a broadcast service,
    • a cable service, and
    • a natural monopoly service/public franchise service.
    A company may offer a plurality of services, and each service may belong to a different category. A company may offer a service that fits into a plurality of categories.

  • On the post: Funniest/Most Insightful Comments Of The Week At Techdirt

    ThorsProvoni ( profile ), 24 May, 2022 @ 07:36am

    Please Learn the Definition of Common Carriage

    Carriage qualifies to be common carriage if carriage is held out 1. to the public, 2. under uniform terms, 3. for a fee. Common carriage differs from contract carriage, which is individualized. An amusement park, which offers roller coaster rides to the public, holds out a common carriage service. California allows the fee to be $0, and there are California state decisions that hold the owner of an escalator or of an elevator provides common carriage. The fee can be paid in barter or in work. Work for passage on a freighter is an example of work-for-carriage common carriage. When I use a major social medium platform, I pay the fee by barter or by work because I exchange "eye-on-the-page" for carriage. "Eyes-on-the-page" is a valuable commodity. If a major social medium platform wishes to escape common carriage obligation, it need only cease to monetize "eyes-on-the-page". Otherwise, a social medium platform, which makes money by common carriage, must obey common carriage law.

  • On the post: Funniest/Most Insightful Comments Of The Week At Techdirt

    ThorsProvoni ( profile ), 24 May, 2022 @ 07:21am

    Disqus Also Has Its Problems

    At some point, I will write a better commenting system.

  • On the post: Funniest/Most Insightful Comments Of The Week At Techdirt

    ThorsProvoni ( profile ), 24 May, 2022 @ 07:15am

    A Lower Court Has So Ruled

    The Massachusetts District Court agreed with me when I argued that Twitter, LinkedIn, Facebook, A Medium Corp, The Harvard Crimson, and the Stanford Daily were all providing a common carriage service. The Court incorrectly held on the basis of an irrelevant voice precedent that I had no monetary claim under MGL c. 159, s. 1 & s. 2. It should surprise no one that there is an ongoing appeal in the Court of Appeals for the First Circuit. Twitter was confused in its Appellee's Brief and argued that it was not a federal telecommunications common carrier. Twitter was distressed that I was asking for ~ $3,000,000 in penalties to be paid to me. In my reply brief, I explained basic common carriage law to Twitter. Although the FCC may determine that an entity is not providing FCC-regulated telecommunications common carriage with respect to a service, it may still provide common carriage with respect to the service from the standpoint either of federal law or of state law. I also pointed out that my original estimate of the penalty, which Twitter owes to me, was low. Each tweet represents multiple requests for common carriage because each source destination pair constitutes an individual request for common carriage. Electronic transmission or carriage of digital personal literary property has been well understood since the 1840s.

  • On the post: Funniest/Most Insightful Comments Of The Week At Techdirt

    ThorsProvoni ( profile ), 23 May, 2022 @ 02:38pm

    Understanding Makes a Difference

    I am not challenging the CDA. There is nothing wrong with the CDA. The caselaw is mostly broken and makes no sense for an assortment of reasons.

    1. The Court of Appeals of the Fourth Circuit based the ruling in Zeran v. America Online, 129 F.3d 327 (4th Cir. 1997) on the logical fallacy, which is a form of inverse error and which is called denial of the antecedent.
    2. None of the Plaintiffs in the cases, which try to apply common carriage law, had much understanding of common carriage law.
    3. None of the Plaintiffs in the cases, which try to apply civil rights law, had much understanding of its application in the context of common carriage.
    4. None of the Plaintiffs, who tried to apply the 1964 CRA understood how the Internet/WWW and its services operate.
    I am the first plaintiff that understands: 1. the operation of the Internet/WWW, 2. propositional calculus, 3. common carriage law, 4. civil rights law, and 5. public accommodation law. I also understand the First Amendment. My complaint has no connection to the First Amendment whatsoever. Show me how much you understand the First Amendment. Which of the following statutes violates the First Amendment?
    • 42 U.S. Code § 2000a,
    • 42 U.S. Code § 1981,
    • 42 U.S. Code § 1982,
    • 42 U.S. Code § 1983,
    • Mass. Gen. Laws ch. 159 § 1, and
    • Mass. Gen. Laws ch. 159 § 2.
    A First Amendment argument does not provide a defense to a civil charge either of public accommodation discrimination, of a civil rights infraction, or of a common carriage violation. U.S. v. Stevens, 559 U.S. 460, 130 S. Ct. 1577, 176 L. Ed. 2d 435 (2010) lists the traditional exceptions to the First Amendment.
    “From 1791 to the present,” however, the First Amendment has “permitted restrictions upon the content of speech in a few limited areas,” and has never “include[d] a freedom to disregard these traditional limitations.” Id., at 382–383, 112 S.Ct. 2538. These “historic and traditional categories long familiar to the bar,” Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 127, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991) (KENNEDY, J., concurring in judgment) — including obscenity, Roth v. United States, 354 U.S. 476, 483, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), defamation, Beauharnais v. Illinois, 343 U.S. 250, 254–255, 72 S.Ct. 725, 96 L.Ed. 919 (1952), fraud, Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976), incitement, Brandenburg v. Ohio, 395 U.S. 444, 447–449, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (per curiam), and speech integral to criminal conduct, Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498, 69 S.Ct. 684, 93 L.Ed. 834 (1949)—are “well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.” Chaplinsky v. New Hampshire, 315 U.S. 568, 571–572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942).
    Yet, the First Amendment only provides a limited restriction on the power of Congress to enact a law.
    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
    For example, the 1964 Civil Rights Act, of which § 2000a is an element, limits the ability of a restaurateur to express himself by refusing to serve blacks because nowhere within its statutory text does § 2000a abridge the freedom of speech (expression). § 2000a regulates conduct, which is associated with interstate commerce. Not one of the other listed statutes abridges the freedom of speech (expression). The regulation of interstate commerce is an enumerated power of the US federal government. Because the District Court Judge understood my legal reasoning, he tried to bury my complaint as quickly as he could by means of a truly specious argument. Because the former Chief Justice of the Court of Appeals for the First Circuit understood my legal reasoning, he was trying to hurry the case along. SCOTUS denied cert because the case was not ripe for review. I was letting SCOTUS know that I am cultivating the case.

  • On the post: Funniest/Most Insightful Comments Of The Week At Techdirt

    ThorsProvoni ( profile ), 23 May, 2022 @ 03:19am

    This Comment System is Cumbersome

    Disqus is easier to use.

  • On the post: Funniest/Most Insightful Comments Of The Week At Techdirt

    ThorsProvoni ( profile ), 23 May, 2022 @ 02:11am

    Denial of the Antecedent

    The images, which is associated with this and other relevant analysis, can be found on Eric Goldman's blog.

  • On the post: Funniest/Most Insightful Comments Of The Week At Techdirt

    ThorsProvoni ( profile ), 23 May, 2022 @ 02:03am

    Images Don't Seem to Work

    Too bad.

  • On the post: Funniest/Most Insightful Comments Of The Week At Techdirt

    ThorsProvoni ( profile ), 23 May, 2022 @ 01:55am

    Illegitimacy and Illogic of 47 U.S. Code § 230

    CDA caselaw is inherently illegitimate. The CDA says nothing about editorial discretion but does say when an Interactive Computer Service (ICS) cannot be considered to be a publisher. The CDA says an ICS is a publisher and has unfettered editorial discretion to remove a user or his content only if one uses the logical fallacy of denial of the antecedent to interpret the statute. From Petition to SCOTUS for Certiorari to the Court of Appeals of the First Circuit Before Judgment [21–6916]. While the Court of Appeals of the Fifth Circuit has been busy in the effort to create a circuit split over § 230, my fiancée and I have been working on splitting the Court of Appeals for the First Circuit from ridiculous CDA caselaw. In District Court, I spent a good deal of time in the effort of explaining the correct meaning of the CDA without net neutrality fanaticism. From Memorandum in Support of Motion for Reconsideration [1:21-cv-11119-RGS]. We are trying to create a case that SCOTUS will be interested in reviewing. [I am to be blamed for typos and less than perfect phrasing. I can't write something concisely in 10 words when I can write it in 100 words.] List of Important Litigation Documents [We are counter-punchers and the later Reply Briefs are probably better argued than the earlier filings.]

    1. Original Complaint [1:21-cv-11119-RGS]
    2. District Court Orders
    3. Memorandum in Support of Motion for Reconsideration
    4. Reconsideration Exhibits
    5. District Court Reconsideration Denial
    6. Appellant's Brief [21-1921]
    7. Appellant's Appendix
    8. Petition to SCOTUS for Certiorari to the Court of Appeals of the First Circuit Before Judgment [21–6916]
    9. Petition's Appendix
    10. Twitter's Appellee's Brief
    11. Appellant's Reply Brief to Twitter
    12. Medium's Appellee's Brief
    13. Appellant's Reply Brief to Medium

  • On the post: And Now The Copia Institute Tells The US Supreme Court There’s A Big Problem With Texas’s Social Media Law

    ThorsProvoni ( profile ), 22 May, 2022 @ 02:36pm

    HB 20 Regulates Conduct Not Freedom of Expression

    The amicus brief of Copia Institute has one virtue. Unlike the typical pro-Net choice amicus brief, that of Copia does not make questionable assertions about common carriage. HB 20 is overly complex, and Copia's brief is correct that the phrase "social medium platform" is an artificial construct. It does not belong in the statute. Massachusetts Common Carriage Law is short, sweet, and much nastier to a social medium ICS/common carrier than HB 20.

    Massachusetts General Laws Chapter 159 Section 1. Every common carrier of merchandise or other property shall receive, transport and forward all property offered for such purposes by other such carriers as promptly, faithfully and impartially, at as low rates of charge, and in a manner and on terms and conditions as favorable to the carrier offering such property, as he on the same day and at the same place receives, forwards and transports, in the ordinary course of business, property of a like description offered by persons other than such carriers. Such carrier shall not discriminate against any particular person or subject him to any undue or unreasonable prejudice or disadvantage. The supreme judicial or superior court shall have jurisdiction in equity to enforce this section. Section 2. Every such carrier who wilfully neglects or refuses to comply with the preceding section shall forfeit not less than fifty nor more than five hundred dollars, to the person offering the property for transportation.