Shaking the Section 230 Tree

Who knows what's hiding in thereThe trouble with nutshells is a lack of space; there's just enough room for the bare necessities, but sometimes that isn't enough. When it comes to legal cases, especially, the entire tree may be required before the facts become clear. And sometimes it's interesting to shake the tree just to see what else might fall out. Yesterday's nutshell summary of a recent California appellate court case that found Communications Decency Act protections appropriate in a corporate environment didn't explore the details surrounding the decision. Some of those details were brought out in the comments section yesterday, so there's no need to regurgitate those here.

As it turns out, the court found absolutely no evidence that the company at which the culpability suit was aimed had any reason to suspect the employee was sending threatening messages while at work. This, combined with the utter impracticality of monitoring the communications of every employee in an environment that specifically relies on computers—and their connection to the Internet—to accomplish this communication made the court's decision relatively easy. One paragraph in particular from their opinion discusses the changes to our workplaces that now make all the difference when it comes to defining a company as a service provider. Colorful emphasis is mine.

We are aware of no case that has held that a corporate employer is a provider of interactive computer services under circumstances such as those presented here. But several commentators have opined that an employer that provides its employees with Internet access through the company's internal computer system is among the class of parties potentially immune under the CDA. (See, e.g., Zion, Protecting the E-Marketplace of Ideas by Protecting Employers: Immunity for Employers Under Section 230 of the Communications Decency Act (2002) 54 Fed. Comm. L.J. 493, 496 ["it is evident from the language and legislative history of the [CDA] that Congress intended employers to be covered under § 230," (fn. omitted)]; Garvey, The New Corporate Dilemma: Avoiding Liability in the Age of Internet Technology (1999) 25 U. Dayton L.Rev. 133, 139 ["corporations with direct Internet connections are indeed [Internet service providers] and, therefore, should receive [CDA] immunity from employee computer abuse"(fn. omitted)].) Certainly, it is beyond question todaycertainly more so than 10 years agothat "Internet resources and access are sufficiently important to many corporations and other employers that those employers link their office computer networks to the Internet and provide employees with direct or modem access to the office network (and thus to the Internet)." (American Civil Liberties Union v. Reno (E.D.Pa. 1996) 929 F.Supp. 824, 832-833, affd. sub. nom. Reno v. American Civil Liberties Union (1997) 521 U.S. 844.) And Agilent clearly meets the definition of that term under section 230(f)(2) (see fn. 20, ante), in that it "provides or enables computer access by multiple users [i.e., Agilent's employees] to a computer server." As noted in Rolfe's declaration, Agilent's proxy servers are the primary means by which thousands of its employees in the United States access the Internet. In light of the term's broad definition under the CDA, we conclude that Agilent was a provider of interactive computer services. (See, e.g., Kathleen R. v. City of Livermore, supra, 87 Cal.App.4th at pp. 692-693 [rejecting contention that library was not immune because of its governmental entity status]; Donato v. Moldow (2005) 374 N.J.Super. 475, 486-488; 865 A.2d 711, 718 [Web site's noncommercial status and limited use irrelevant to CDA immunity analysis].)

There are a number of additional reasons for the court's decision in this case, but I'll leave it to the reader to explore the opinion in its entirety online, if that seems interesting. Personally, I think it's worthwhile for the insight it affords, particularly with future cases in mind.


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