Why ISPs can breathe easier after a porno decision

Attorney Eric J. Sinrod says a Texas federal judge's decision means a major victory for Internet providers.

Internet service providers naturally are concerned about circumstances under which they potentially could be held liable for content posted by users. But after a recent decision by a Texas federal judge, ISPs can breathe a collective sigh of relief.

The judge dismissed an ISP as a defendant in the case of Doe v. Bates (PDF), even though the offending conduct at issue was alleged to be in violation of criminal law.

In that case, the plaintiffs alleged that the ISP knowingly hosted illegal child pornography on a particular e-group. An e-group is an Internet-based forum where users can engage in discussions and share files and the like. The e-group at issue was just one of a multitude of e-groups registered with this ISP.

While the individual defendant, by the name of Bates, had been imprisoned for his involvement as the moderator of the subject e-group, the plaintiffs claimed that the ISP had liability under a variety of legal theories, including negligence, intentional infliction of emotional distress, invasion of privacy and civil conspiracy. The plaintiffs also asserted that the offending Internet content violated criminal law against child pornography.

The legislative history, as summarized by the judge, supported immunity for ISPs precisely so that they could act with freedom in regulating "obscenity."

In turn, the ISP filed a motion to be dismissed from the case. The ISP argued that it was entitled to immunity under Section 230 of the Communications Decency Act (CDA), with respect to content provided by another. The federal judge presiding over the case in Texas agreed. This is important, as it appears to be the first instance in which a court has confirmed that Section 230 ISP immunity applies in a private civil lawsuit, even when that suit is based on alleged criminal acts.

Specifically, the judge held that an intentional violation of criminal law is not an exception to the civil immunity provided to ISPs under the CDA. In analyzing the legislative history to Section 230, the judge found that Congress was clear in immunizing ISPs.

Indeed, according to the judge, "while the facts of a child pornography case such as this one may be highly offensive, Congress has decided that the parties to be punished and deterred are not the Internet service providers but rather those who created and posted the illegal material...such as the moderator of the...e-group."

The legislative history, as summarized by the judge, supported immunity for ISPs precisely so that they could act with freedom in regulating "obscenity." With such immunity, they can react and seek to limit improper content without fear that their regulating conduct could open them up to liability for grappling with the content in more than a passive role.

Thus, according to the judge, "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."

This represents a major win for ISPs. Now they can argue that not only does Section 230 afford immunity for third-party content in the usual civil case but that immunity even extends to civil cases in which the underlying content also violates criminal laws.

Of course, this is just one decision by one federal judge, and it is not binding on other federal trial judges. It certainly is not binding on appellate courts that may consider the issue. But it still can be looked at by other courts for persuasive influence.

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