United States: Dark Web Provider Escapes Wrongful Death Drug Case

This last week of May has been a big one in the James Bond universe. It includes the birthdays of Ian Fleming, who wrote the books, of Richard Maibaum, who wrote many of the screenplays, and of Clifton James, who played the comically exasperated southern Sheriff in the Live and Let Die and The Man with the Golden Gun films. This week is also the 50th anniversary celebration of On Her Majesty's Secret Service, the one Bond film starring George Lazenby, and the entry that Steven Soderbergh and many others regard as the strongest of the whole franchise. Anyway, we are beyond jealous of those Bond fans gathering in Portugal and Switzerland this week. If we had "all the time in the world" (a reference to the Louis Armstrong song from OHMSS), we'd be there with them.

It is no surprise, then, that we wanted to blog about a case with mystery and gadgets, cloaks and daggers. The closest we could come to that is Seaver v. Estate of Cazes et al., 2019 WL 2176316 (D. Utah May 20, 2019), a wrongful death case involving overseas drugs and the dark web. The plaintiffs in Seaver were parents of a 13 year old boy who died from ingesting an illicit drug he had purchased via the internet. The parents sued the website that sold the drug, the service provider that created the network through which the boy was able to access the website on the dark web, and the mail service that actually delivered the drug. At least one of the named defendants is a Chinese Courier service, so it appears that the drug originated in China. The complaint included claims for strict products liability, negligence, abnormally dangerous activity, and civil conspiracy.

The defendant service provider, which was called The Tor Project, filed a motion to dismiss based on lack of personal jurisdiction and immunity under the federal Communications Decency Act (CDA). Tor is a Massachusetts corporation. It provides software for enabling anonymous communications and transactions on the internet. To use the Tor browser, one downloads and installs the software, which then routes internet traffic through worldwide relays. The effect is that the user's location is hidden. Tor also invites its users to become part of the global relay system.

The Seaver court's personal jurisdiction analysis is a bit surprising to us. We would have thought that there was no general jurisdiction over Tor in Utah, since Tor was not "at home" there. At the same time, we could see how specific jurisdiction might apply since Tor had actually connected the Utah user to the dark web. But the Utah court concluded that general jurisdiction extended over Tor because there were "likely" 3,000-4,000 Utah users of the Tor software each day, and those transactions constitute "continuous and systematic contacts in the state of Utah so as to satisfy the general jurisdiction standard." Hmmmm. That ruling seems like reversal bait to us, but reversal probably will not happen, because Tor won its dismissal motion on substantive grounds – namely, CDA immunity. The CDA creates federal immunity to any state law cause of action that would hold an interactive computer service provider liable for information originating with a third party.

The Seaver court's CDA analysis was straightforward. First, the Seaver court had little difficulty finding that Tor qualifies as an interactive computer service because it provides or enables access to the internet. Second, it was clear that the plaintiffs were seeking to hold Tor liable for information regarding the illicit drug. That is, the plaintiffs were treating Tor as the publisher or speaker of third party information — precisely the result proscribed by the CDA. Third, the information about the drug and its availability was not created by Tor. The plaintiffs did not allege that Tor had specifically encouraged development of the information at issue, and played no role regarding its content. Accordingly, the CDA barred the plaintiffs' against the internet service provider.

Seaver is the first preemption case that we've seen involving a sale of a drug – an illegal drug – over the internet. If websites involved in illegal drug sales are protected by preemption, then similar sites making legal drugs available would seem a fortiori to be protected. We have blogged here about Amazon successfully using the CDA in defending product liability suits. Any defense hack should consider whether the CDA might ride to the rescue for certain claims. Moreover, the Seaver case raises a more general issue of whether it is appropriate to hail mere intermediaries into court. They might be deep pockets, but they might also simply be the wrong pockets.

Invariably at the end of a Bond movie, as the credits end, the audience is informed that "James Bond will return." We have a suspicion that the same is true of the issues raised in Seaver.

This article is presented for informational purposes only and is not intended to constitute legal advice.

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