ISP immunity

Wed Aug 18 09:11:12 PDT 1999

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AOL Case Will Test ISP Liability

Rafer Guzman
The Wall Street Journal

The Florida Supreme Court will hear arguments next month in a case
that pits the victim of a child pornographer against Internet
provider America Online Inc.

The suit involves a South Florida schoolteacher who videotaped
himself molesting an 11-year-old boy and then used an AOL chat room
to arrange mailing the tape to another pedophile. The schoolteacher,
arrested in 1995, is serving time for sexual-battery and
child-pornography charges. But the victim's mother, referred to in
court records as Jane Doe, is suing AOL, the world's largest Internet
service provider, for $8 million on her son's behalf.

On a broader level, the case tests a federal law designed to provide
immunity for Internet service providers. AOL's lawyers argue that
Internet service providers are not responsible for material
transmitted by their subscribers according to the federal
Communications Decency Act of 1996. But Ms. Doe's lawyer counters
that Florida law holds providers liable, and that the laws in the
federal act do not to apply to this case.

"AOL knew or should have known that this activity was occurring and
did nothing to stop it," says Ms. Doe's lawyer, West Palm Beach
attorney Brian Smith. "We're suing them for aiding and abetting the
distribution of child pornography."

AOL, based in Dulles, Va., would not discuss details of the case. But
Randall Boe, the company's associate general counsel, says previous
rulings bolster AOL's case. "Courts have uniformly decided that
Internet service providers are not legally responsible for content
that they don't create."

It's been a losing battle for Ms. Doe so far. A West Palm Beach trial
court dismissed the case in 1997, ruling that there was no legal
basis for her claim. She appealed, but last October the Fourth
District Court of Appeal in West Palm Beach upheld the dismissal.
However, the court requested that the Florida Supreme Court hear
attorneys' arguments.

The fact that the state Supreme Court agreed "opens up the
possibility" of different interpretations of the laws, says Lyrissa
Barnett Lidsky, who teaches media law at the University of Florida in
Gainesville. If the Supreme Court dismisses the suit, she says, "it's
just going to be another in the line of cases that give broad immunity
to Internet service providers." But, she adds: "If they don't, it
will be a landmark case."

Perhaps the most crucial question is whether or not the federal law
providing immunity to providers preempts the state law that holds
them liable. The state Computer Pornography and Child Exploitation
Prevention Act of 1986, established well before the federal
Communications Decency Act, states that "it is unlawful for any owner
or operator of a computer online service, Internet service or local
bulletin board service knowingly to permit a subscriber to utilize
the service" to distribute child pornography. Ms. Doe's attorney, Mr.
Smith, says the statute should apply to AOL in this case.

But some lawyers say the state law won't hold up against the federal
Communications Decency Act, section 230 of which states: "No provider
or user of an interactive computer service shall be treated as the
publisher or speaker of information provided by another information
content provider."

Fred Cate, professor of law at Indiana University in Bloomington,
says Congress wrote that section expressly to reverse a 1995 case in
which White Plains, N.Y.-based Internet service provider Prodigy
Communications Corp. was held liable for a defamatory message posted
on one of its bulletin boards. (Ironically, Prodigy was held liable
because its policy of screening and editing messages led the court to
decide that the company was assuming responsibility for the content on
its service.) With the Communications Decency Act, Mr. Cate explains,
"Congress said, 'It shouldn't be that way. You will not be liable if
you accidentally miss something.'" The Prodigy ruling has since been
overturned.

Another case testing the Communications Decency Act arose in 1997,
when a subscriber sued AOL for not removing a defamatory message even
after he alerted the company to its existence. But, citing Section 230
of the Communications Decency Act, the court found in favor of AOL.
The "clear legislative intent" of that law, says Mr. Cate, "was to
make Internet providers immune for the content that they did not
originate."

However, the West Palm Beach case "is the first of which I'm aware
that involves something other than defamation," says Mr. Cate. The
fact that a pornographic videotape of Jane Doe's son was "distributed
on AOL further contributed to the already tremendous harm to this
child."

Mr. Smith says he plans to present that argument to the state Supreme
Court. "Ours is a criminal-conduct case that Section 230 was never
intended to provide" immunity for, he says. "I think it was intended
to be limited to certain situations like defamation, not criminal
conduct." If the state Supreme Court agrees, Florida's statue holding
service providers responsible for child pornography on their services
may be applied to AOL.

Ms. Lidski at University of Florida says Mr. Smith's argument may
have merit. She says she was initially "surprised with the vehemence"
of the courts that in the past few years have granted "almost total
immunity to Internet service providers' based on the Communications
Decency Act. "I don't think that reading was mandated by the statute
itself," she says. "I think it could have been interpreted more
narrowly."

But David Wasserman, a Winter Park attorney who has handled a number
of Internet pornography cases, disagrees. "If you impose
responsibility on" AOL, he says, "how about the telephone company? How
about the U.S. Postal Service?" Internet service providers can't be
held responsible for their millions of subscribers and perhaps
billions of messages, says Mr. Wasserman. "To police them, they'd
need millions of police."

Mr. Cate suggests that if the state Supreme Court decides that
Florida law supersedes federal law in this case, the question for AOL
will be, "What did AOL know and how did it know it? And how did it
behave? What AOL is going to be hoping for is that it didn't know
much."

Mr. Cate says it's more than likely that the state Supreme Court will
rule that state law prevails. "It would not surprise me if, throughout
the chain of Florida courts, the statute is upheld," he says, though
he adds that a federal court is just as likely to strike the statute
down.

Mr. Smith says other arguments are available to him. For one, he
says, even if the Communications Decency Act does hold AOL immune
from liability for its content, the law did not go into effect until
after the man who molested Jane Doe's son began discussing the
videotape via AOL. "At the time this guy was doing the marketing of
the videotape, Section 230 wasn't in existence," says Mr. Smith. "I'm
saying [the Communications Decency Act] shouldn't even apply to us,
because it's not a retroactive statute."

Mr. Cate says the most important question is whether the Florida
Supreme Court will allow Mr. Smith's suit to go to trial and raise
the question of how the state interprets the federal Communications
Decency Act. It "doesn't seem right," he says, "that AOL should be
able to profit from delivering content yet enjoy immunity for that
content." But, he adds, "If there's no immunity, then they're out of
business. There's not a lot of middle ground here."

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