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Sex
on the Net: Recent Cases Addressing Criminal Liability for Internet
Providers
By Daniel
M. Waggoner
"Is this legal? Can I get in trouble
by downloading this stuff? What is your policy?"1
These three questions, posed by an undercover
police officer to an Internet provider about on-line child pornography,
have sparked the most recent controversy involving Internet crime
related to sexual content. The questions highlight current legal
confusion over whether Internet service providers (ISPs) can face
criminal and civil liability for illegal content developed by third
parties-specifically, child pornography and obscenity that violate
state and federal criminal statutes.
ISPs serve as gateways
to the Internet, providing access to materials produced by third
parties around the world. ISPs generally do not monitor the third-party
content that their subscribers access or post, in part because the
effort would require enormous resources. One writer discussing the
Internet traffic on BuffNET, a New York ISP, compared such a task
to reading Shakespeare's complete works 3,200 times every day.2
Because ISPs do not actively screen sites, they do not know whether
users are viewing websites, newsgroups, or bulletin boards that
contain potentially illegal materials. Two recent cases depict how
this action-or inaction-can lead to different results and different
liability.
The Dreamscape Complaint No law enforcement
authority in the United States has filed criminal charges against
an ISP for illegal content developed by third parties,3
and it is unclear whether federal or state laws would allow authorities
to bring such charges. Section 230 of the Communications Decency
Act might extend immunity from criminal charges to ISPs, although
that protection is far from certain. Also, criminal charges raise
possible constitutional concerns regarding scienter, or whether
the ISP had knowledge of the illegal material.
This uncertainty,
however, did not deter the New York Attorney General's office from
launching a raid that could have far-reaching effects on the way
ISPs monitor third-party content. On October 26, 1998, a New York
state police officer allegedly asked for a tour of Dreamscape Online,
an ISP in upstate New York. Authorities arrived the next day, but
they skipped the tour and instead served a search warrant. Police
seized Dreamscape's news server-the equipment that allows an ISP
to provide Usenet access-and also served a subpoena ordering Dreamscape
to produce any complaints it had received about Internet content.4
Prior to the search, Dreamscape had received
one complaint from a supposed college student who posed the three
questions above. The student had allegedly accessed a newsgroup
involving child pornography. Dreamscape responded to the complaint
by stating that it did not screen particular newsgroups for legality
but that child pornography is illegal. Dreamscape also said it would
cooperate with authorities if they brought illegal material to the
ISP's attention. The "college student" turned out to be an undercover
police officer who was testing Dreamscape to see if it would remove
the illegal newsgroup after a warning from a subscriber.6
The Dreamscape seizure was part of an international
effort to crack down on Internet child pornography. "Operation Sabbatical" resulted in 13 arrests of alleged pornographers and the seizure
of equipment from Dreamscape and BuffNET, another New York ISP.
The New York Attorney General declared victory and warned other
pornographers that they could expect similar treatment.7
The New York Attorney General did not file
criminal charges against the raided ISPs, but he left open the possibility. "The ISPs were in possession of illegal images of children engaged
in sex acts," said a spokesperson for the Attorney General. "In
both cases, they were forewarned that they were in possession of
illegal images."8
(The New York Attorney General, Dennis Vacco, lost a bid for reelection
in November 1998 and has since left office.)9
The targeted ISPs quickly posted responses
on the Internet. Part of BuffNET's message stated, "When someone
sends illegal material through the U.S. Mail, they don't arrest
the people in the Post Office."10
Dreamscape's response stated in part:
Dreamscape is disappointed that the Attorney General has utilized
unnecessary and unlawful tactics which significantly interfere with
the rights of all Americans to utilize the Internet. Dreamscape
does not create the articles, pictures, or other information available
to persons using the Internet. Instead, Dreamscape acts solely as
a conduit allowing individual senders and receivers to communicate
with each other without review, supervision, censorship, or interference
by Dreamscape.11
After a month of waiting for potential criminal
charges, Dreamscape turned the tables on the Attorney General. The
ISP filed a class action lawsuit in federal district court on behalf
of all ISPs in the state of New York. Dreamscape's complaint asserts
that, "If any misstep by the Internet Service Provider could lead
to its criminal liability, there is little doubt that valuable materials
which should be freely exchanged in a democratic society will be
stripped from the Internet."12
The lawsuit names the Attorney General's office as defendant and
seeks a declaratory judgment and an injunction. The complaint discusses
federal, state, and constitutional rights generally, including the
First Amendment rights of Dreamscape's subscribers, but Dreamscape
does not cite to a specific federal statute as a basis for its relief.
Instead, the complaint grounds its actual request for relief on
general state law but again does not cite any specific provisions
that would immunize ISPs from prosecution.
The declaratory
judgment request is the most significant aspect of the complaint.
Dreamscape asks the court to declare that ISPs have no duty under
state law to "review, screen, edit, delete, block access to, or
censor" third-party material available on the Internet.13 The complaint also asks the court to rule on the practice of "caching,"
in which some ISPs temporarily store images from third-party materials
as they pass through the ISP's system. Dreamscape wants the court
to rule that "caching" does not equal "possession" for the purpose
of pornography and obscenity statutes.14
In essence, Dreamscape asks the court to declare that authorities
cannot hold an ISP criminally liable for third-party content, because
the ISP does not possess it and does not know about it.
Although the lawsuit could clarify some
criminal liability issues for ISPs, the lawsuit also is significant
for what it does not ask to have decided. Even if the complaint
results in a reported decision, the case will not address criminal
liability issues for ISPs who choose to screen third-party material
and therefore have more knowledge of the content. Perhaps more significantly,
the complaint requests declaratory judgments under New York state
law.
Interestingly, the complaint makes no effort
to argue that Communications Decency Act protects ISPs from criminal
prosecution. Section 230 of the CDA purports to shield Internet
providers from liability for third-party content,15 but it also states that "[n]othing in this section shall be construed
to impair the enforcement of" federal criminal statutes.16 Courts have not determined whether the section confers immunity
to ISPs for purposes of criminal prosecution. Because the Dreamscape
complaint appears to request relief only under state law, the federal
criminal liability question will remain open for now.
Doe v. America Online, Inc.
While the issue of ISPs' criminal liability
remains unclear, a recent opinion held that ISPs cannot be held
civilly liable for alleged violations of criminal law. An appellate
court in Florida conditionally ruled that federal law protected
America Online from civil liability for child pornography transmitted
over its service.17
Courts previously had found ISPs immune from civil liability for
defamatory material by a third party, but Doe is the first case
to address allegedly criminal content.18.
Doe filed suit after a man allegedly sexually
abused her 11-year-old son and then used America Online to market
pornographic videos of the child. Doe claimed that America Online
helped "distribute" the illegal material by allowing the suspect
to access its services. She sought to hold America Online civilly
liable for allegedly violating Florida's criminal statutes regarding
distribution of child pornography. Doe also claimed that America
Online acted negligently because it had received complaints about
the suspect and should have known about the illegal activity.19
The trial and appellate courts dismissed
Doe's claims, holding that the Communications Decency Act prohibited
civil actions against an Internet provider for materials created
by third parties. The court held that Section 230 preempted all
of Doe's theories and provided complete immunity, even if America
Online had received complaints or had refused to "police" its service.20
The appellate court cited extensively to Internet cases involving
third-party defamation, even though Doe based her civil action on
alleged violations of criminal statutes.21
Conclusion
Both the Dreamscape complaint and the Doe
opinion raise questions about what type of policies ISPs should
adopt regarding illegal material. At one end of the spectrum, a
provider can choose not to screen any material. At the other end,
a provider could attempt to screen all material passing through
its service. Other options lie between the extremes: providing filters
to subscribers, prohibiting subscribers from downloading or uploading
illegal material, using electronic screening devices, or screening
and removing material when subscribers complain.
The facts of Doe mirror those in
Dreamscape, but with drastically different results. Neither
ISP created the illegal material, and neither ISP policed third-party
content, although both received at least one complaint. For essentially
the same conduct, Dreamscape faced the threat of criminal charges,
while America Online received vindication in a civil lawsuit.
These two scenarios are just the most recent
examples of the dilemmas ISPs face, and of the uncertainty and inconsistency
in the law. While the Dreamscape lawsuit could provide the courts
with an opportunity to clarify criminal liability under at least
one state's law and to bring it in line with the rulings on civil
immunity, ISPs may have to look elsewhere for clarity about their
protection under federal law.
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