Yet Another Section 230 Test Case

Section 230 strikes again. And again! As you may know, a recent court opinion involving section 230 of the Communications Decency Act found, again, in favor of the service provider; as you may also know, the case is unusual for a couple reasons. But although United States District Judge Folsom's decision was rendered in December 2006, it took an article on CNet this week to bring it to the attention of the blogospheric collective. No doubt it showed up on the screens of the legal community some time ago, but then, I suppose that's one of the benefits of membership.

In any event, it's yet another ruling that adds to the ever-increasing precedent of absence of liability for Internet service providers when their customers are using those systems for nefarious purposes. This case is particularly striking because the purpose was pornography, and child pornography to boot. The perpetrators are in prison, but the parents of the child victim believed that the ISP—Yahoo in this case—should be liable as well, which was the basis for the action. The case is unusual for another reason, too. The plaintiffs tried to use an exemption built in to section 230's language to their advantage; it didn't work out terribly well, but it was a novel approach just the same.

In January 2006, Magistrate Judge Craven had recommended granting Yahoo's motion to dismiss all claims made by the parents of the minor child who had been a victim of the pornographers. In her opinion, she outlined the logic behind those recommendations, including the now-familiar sequence of tests used to determine whether or not a service provider can be held responsible for the actions of its customer. She further recommended that the plaintiffs' claim—being, in her words, "novel [but] untenable and without merit"—be dismissed with prejudice.

The plaintiffs had, among other things, attempted to employ a section 230 exemption—230(e)(1) specifically—designed to allow law-enforcement officials the leeway to bring charges against an ISP, if the ISP is thought to have violated federal criminal law. In her opinion, she explains why this exemption isn't intended for the purpose argued by the plaintiffs.

Plaintiffs' core argument appears to be that Section 230(e)(1) must exempt civil claims under the child pornography statutes because child pornography is "not to be tolerated" and "[i]f the prospect of civil liability provides a disincentive for engaging in child pornography over and above that provided by the prospect of fines and jail time, then that is a good thing."

Child pornography obviously is intolerable, but civil immunity for interactive service providers does not constitute "tolerance" of child pornography any more than civil immunity from the numerous other forms of harmful content that third parties may create constitutes approval of that content. Section 230 does not limit anyone's ability to bring criminal or civil actions against the actual wrongdoers, the individuals who actually create and consume the child pornography. Here, both the neighbor and the moderator of the Candyman web site have been prosecuted and are serving sentences in federal prison. Further, the section 230(e)(1) exemption permits law enforcement authorities to bring criminal charges against even interactive service providers in the event that they themselves actually violate federal criminal laws.

She finishes with a review of Congress' intent regarding civil versus criminal liability in this context, and also reinforces the impracticality of mass litigation aimed at a high-volume communications provider.

Regarding civil liability, however, Congress decided not to allow private litigants to bring civil claims based on their own beliefs that a service provider's actions violated the criminal laws. As Defendant explained in its briefing, the reason is evident. If civil liability were possible, the incentive to bring a civil claim for the settlement value could be immense, even if a plaintiff's claim was without merit. Even if it ultimately prevailed, the service provider would face intense public scrutiny and substantial expense. Given the millions of communications that a service provider such as Defendant enables, the service provider could find itself a defendant in numerous such cases. Congress determined that it wanted to eliminate the resulting disincentives to the development of vibrant and diverse services involving third-party communication, while maintaining the ability of criminal prosecutions by the government for violations of federal criminal law. In sum, Congress did intend to treat civil and criminal claims differently and carefully crafted Section 230(e)(1) to achieve exactly that result.

In his decision, District Judge Folsom summarized the Magistrate Judge's findings

The Magistrate Judge found Yahoo!'s motion procedurally proper and turned to the merits. Dkt. No. 56 at 7-10. The Magistrate Judge also found that § 230(c)(1) is not merely "definitional," as Plaintiffs argued, but rather is an immunity provision. Id. at 15-17. Next, the Magistrate Judge found that Yahoo! met the elements of § 230(c)(1) immunity: (1) Yahoo! is a provider of an "interactive computer service;" (2) the pornographic photographs at issue are "information provided by another information content provider;" and (3) Plaintiffs' claims treat Yahoo! as the "publisher or speaker" of the third party content. Id. at 18-27. Finally, the Magistrate Judge found that Plaintiffs' federal claim pursuant to 18 U.S.C. § 2252A did not fit within any exception to § 230. Id. at 29-31.

and, after a relatively brief discussion of pertinent facts and definitions, adopted Magistrate Judge Craven's recommendations and granted Yahoo's motion to dismiss the action. Original emphasis retained.

For all of these reasons, the Court is of the opinion that the findings and conclusions of the Magistrate Judge are correct. Therefore, the Court hereby adopts the Report of the United States Magistrate Judge as the findings and conclusions of this Court. Accordingly, Yahoo!'s Motion to Dismiss (Dkt. No. 17) is hereby GRANTED.

This cause of action is therefore DISMISSED WITH PREJUDICE.

So, it seems we can chalk up yet another victory for the Communications Decency Act's section 230—in the context of child pornography no less—while we ponder the plaintiffs' misguided attempt to subvert its language, and the somewhat negative consequences of such an attempt. What will we learn from the next test case? The mind boggles . . .


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