Doubting the Communications Decency Act

Yup. It's section 230 againAnother day, another Section 230 test case. In a nutshell, an employee of Agilent Technologies had already admitted using company computers to send threatening messages over the Net, but the recipients of those messages thought Agilent ought to be at least partially responsible as well. If you've been following similar cases, you can probably guess how it turned out.

Right. In deciding Delfino v. Agilent Technologies, Inc., a California appellate court found no responsibility on Agilent's part; it was merely providing Internet access, and also had no part, directly or indirectly, in those threats. Had Agilent taken an active role in monitoring its employees' e-mail, and Internet usage in general, this case might have taken a very different turn. But the company's hands-off approach shielded it from legal harm; it's difficult to establish culpability if the employer is unaware of the employee's online transgressions.

While this outcome is undoubtedly vexing for the plaintiffs, a company the size of Agilent would require a battalion of full-time monitors to keep an eye on the communications of every employee. But in that situation, any unobserved—or ignored—wrongdoing would expose the company to potential litigation. Similarly unrealistic expectations could be applied to any venue that provides Internet access, whether it's a small coffee shop or a library. Considering the already ubiquitous character of Net-based communication, it's no longer practical—nor desirable, in the context of censorship—to make the medium's provider responsible for the message.



  1. Anonymous2:02 AM UTC

    I read the opinion and I come away with the impression that the very instant the FBI contacted Agilent Technologies about Moore that Agilent should have immediately put him on leave with pay pending a further enquiry. The fact that Agilent closed its eyes and allowed Moore to continue terrorizing these poor people because Agilent "did not know he was a terorist" is inexcusable. Time to change the law imo.

  2. Anonymous4:55 AM UTC

    I come away with a different impression. Quoting from the opinion itself:

    "As we have noted (see pt. III sec. D.2., ante), Agilent had no knowledge of the content of any of Moore’s threatening e-mails or postings before receiving the arrest affidavit on April 7, 2003. Most important, it was not until the day Moore was placed on administrative leave (leading to his ultimate termination a few days later) that Agilent learned that Moore had used its computer systems to access his personal Internet account to send threatening messages through the Internet more than eight months earlier. Moreover, Agilent’s internal investigations—one conducted in August prompted by the FBI’s initial inquiry, and the second conducted after Moore’s February 2003 arrest—did not yield any information that Moore had used Agilent’s computer system to send inappropriate messages over the Internet. Buffington was unable to discover any Internet postings that may have been attributable to Moore. Indeed, plaintiffs—through Delfino’s deposition testimony—admitted the impossibility of tracing an anonymous posting to a particular individual. There were thus no facts presented suggesting that Agilent knew or had reason to suspect that Moore was engaged in improper on-the-job conduct."

    In fact, Moore was put on administrative leave on April 22, 2003, the very day that Agilent's representatives were first informed of the actual nature of the investigation. Up to that point, the FBI agent working the case hadn't fully informed Agilent of the details to avoid jeopardizing the investigation, and Agilent's own interviews with Moore gave them no reason to administer anything beyond a "stern warning" against using company systems for personal matters. Quoting from the opinion again:

    "In February 2003, Special Agent Wells contacted Buffington to advise him that the FBI planned to arrest Moore for conduct relating to Delfino. Buffington specifically asked if the planned arrest involved conduct by Moore in using Agilent computers, and Special Agent Wells said that it did not involve such conduct. In or about mid-February 2003, the FBI arrested Moore. In late February 2003, Buffington contacted the FBI to request a copy of the affidavit signed by Special Agent Wells pertaining to Moore’s arrest (arrest affidavit). Although Buffington was told at the time that the FBI 'would be faxing it,' he did not receive the faxed copy of the arrest affidavit until April 7, 2003. That arrest affidavit contained a number of details about the substance of Moore’s threatening e-mails and postings, none of which had been provided previously by the FBI to Agilent."

    So Agilent had no reason to put Moore on leave until April 2003, even though the FBI had initially contacted them in July 2002. The reference to Delfino, as you know, was completely unrelated to any case involving Agilent. The way I read it, they were neither closing their eyes nor allowing Moore to continue terrorizing the plaintiffs, at least according to the opinion to which you refer.

    In a way, I think it's unfortunate that the Communications Decency Act was even invoked, because as the opinion also makes clear, the case didn't really turn on section 230 protections anyway. In the words of the court again:

    "On information and belief, plaintiffs alleged that Agilent knew (1) Moore was sending threatening messages, and (2) that he was using Agilent’s computer system to send them. Agilent rebutted this allegation in its summary judgment motion, and plaintiffs presented no evidence in opposition that Agilent had such knowledge. This failing notwithstanding, it is apparent that plaintiffs, in alleging that Moore’s employer was liable for his cyberthreats, sought to treat Agilent 'as a publisher or speaker' of those messages. (§ 230(c)(1).)"
    "We have concluded, ante, that summary judgment was properly granted because Agilent was entitled to CDA immunity. But even if plaintiffs’ claims were not barred under section 230(c)(1), the granting of Agilent’s summary judgment motion was nonetheless proper, because plaintiffs failed to make a prima facie showing on their intentional infliction claim against Agilent."

    Whether there ought to be changes to the CDA is obviously the subject of much debate, but I don't think this particular case makes a point in favor of doing so. To me, it's a matter of interest to see this law applied in a variety of situations, even when the application seems a bit peripheral, as it does here.

  3. Anonymous7:48 PM UTC

    Jeff wrote: "a battalion of full-time monitors to keep an eye on the communications of every employee. "

    I hardly think so. How often does the FBI call a company to tell them that they are investigating one of their employees? Maybe Agilent has lots of bad employees but I think most companies don't have such problems.

    The CDA was intended to protect speech--not to harbor criminals.

  4. Anonymous8:09 PM UTC