United States: Sex On The Net: Recent Cases Addressing Criminal Liability For Internet Providers

Co-written by Shelley Hall

"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:

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.

Footnotes

1. Subscriber complaint received by Dreamscape, available athttp://www.dreamscape.com/ press/vaccoact.html.

2. Chris Allbritton, AG's Computer Seizure May Violate Federal Law, Associated Press, Oct. 28, 1998.

3. German authorities did convict a former CompuServe employee for providing users with the means to access allegedly illegal content developed by third parties. See Courtney Macavinta, CompuServe Manager Convicted, CNET News.Com, May 28, 1998, http://www.news.com/News/Item/0,4,22525,00.html?st.ne.ni.rel.

4. Dreamscape Online, LLC v. Vacco, Complaint, ¶¶ 28-30, available athttp://www.dreamscape.com/press/vaccoact.html.

5. Id. at ¶¶ 31-32.

6. See Austin Bunn, When the Dirtiest Part of Child Porn is Politics, The Village Voice, Nov. 28, 1998, at 35.

7. See, e.g., Internet Provider Sues in Pornography Case, The N.Y. Times, Nov. 25, 1998, at B13; Kiwi Caught in Internet Porn Ring, The Evening Post (Wellington, New Zealand), Oct. 30, 1998, at 13.

8. Marc Wurzel, quoted in Paul Festa, ISPs May Face Charges Over Child Porn, CNET News.com, Oct. 30, 1998, http://www.news.com/News/Item/0,4,29169,00.html.

9. See Tracey Tully, Gov. Takes Oath for 2nd Term: Pataki's Optimistic at Subdued Ceremony, Daily News (New York), Jan. 2, 1999, at 5; Mr. Vacco Confronts Reality, The New York Times, Dec. 15, 1998, at A26.

10. Mike Hassett, BuffNET Vice President, quoted in BuffNET's Statement with Respect to Attorney General's Seizure of Internet Equipment, http://www.buffnet.net/ag.

11. Statement of Dreamscape with Respect to Attorney General's Seizure of Internet Equipment, http://www.dreamscape.com/dream98/statement.htm.

12. Dreamscape Online, LLC v. Vacco, Complaint, ¶ 42, available at http://www.dreamscape.com/press/vaccoact.html.

13. Id. at ¶ 1 of demand for judgment.

14. Id. at ¶ 2 of demand for judgment.

15. 47 U.S.C. § 230(c)(1).

16. Id. at § 230(d)(1).

17. Doe v. America Online, Inc., 718 So.2d 385 (Fla. App. 1998). The panel certified the liability questions to the Florida Supreme Court. Id. at 389-90.

18. See, e.g., Lunney v. Prodigy Servs. Co., 1998 WL 909836 (N.Y. App. Div., Dec. 28, 1998) (defamation); Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998) (same); Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997) (same).

19. Doe 718 So.2d at 386.

20. Id. at 389.

21. Id.