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TechnologyDaily Mobile
Online Services: Out Of Line, On Trial?
It isn't often that you can have the best of both worlds. But legally, Internet Service Providers have just that -– at least for now.
When it comes to shielding themselves from liability, online service providers have reason to be satisfied. Like telephone companies, they benefit from common carrier provisions that shield them from certain responsibilities for data traveling over the network. Like magazine and newspaper publishers, they benefit from being able to edit and select content they publish. And in 1996, Congress extended an immunity provision that covers much of the remaining ground.
In short, it is hard to sue the service itself for any information users get through it. Congress may be frustrated by copyright pirates or pedophiles operating online, but there is little ground for going after ISPs for contributing to the problem. And while that has complicated the job of lawmakers trying to craft measures keeping explicit online material out of the hands of children, it may also play a factor in ongoing intellectual property debates and attempts to make sure the Child Online Protection Act is not ruled unconstitutional.
This best-of-both-worlds scenario was demonstrated by two recent controversies involving America Online, the country’s largest provider of online content and Internet access. In December, the company exercised its prerogative as publisher and shut down an Irish-heritage related message board that had turned into verbal battleground over the politics of the Irish Republican Army. Citing repeated violations of the company’s "terms of service" agreement -– which forbid profanity, vulgarity and personal threats -– AOL enforced a two-week cooling down period before wiping the slate clean and reopening the bulletin board on Dec. 28. And in January, with the company named as a party to a privacy-infringement lawsuit brought by an abortion clinic, the argument was slightly different. AOL subsidiary Compuserve, which permitted subscribers to track down names and addresses from license plate tags, was sued when abortion protestors used the service to harass clinic visitors.
AOL’s reaction? "We are not the author or publisher, just a conduit," said company spokeswoman Anne Bentley.
Some observers argue ISPs should not venture lightly into publishing, lest they be slammed with lawsuits for causes ranging from for sexual harassment to libel and terrorism. "It is easier for AOL to say, 'we are a common carrier, we provide bandwidth, and sunshine is the best disinfectant' of hate speech," said Thomas H. Lipscomb, chairman of the Center for the Digital Future, a New York-based public policy institute. "The common carrier mantle is the best thing to have, and they threw it on the ground."
But AOL hasn't exactly been suffering. In fact, it was greatly strengthened by a section of the 1996 Telecommunications Act that granted immunity to ISPs for defamatory statements by third parties over their services. Although broad enough to ensure a string of legal victories for the company, AOL attorneys argue that the legislation was necessary to ensure that online services continue to do what they do best.
"There is no way that you can screen content in advance and still maintain the interactive part of being an interactive service provider," said Randall Boe, general counsel for AOL. "Congress recognizes this and wants ISPs to act responsibly, but they don’t want to saddle them with the burden of being responsible for each and every post."
The roots of the law, Section 230 of the Telecommunications Act, date to a 1995 decision. In that case, the Prodigy online service was held liable for derogatory comments about a brokerage firm posted on a financial bulletin board. Prodigy, which promoted itself as family-oriented by using human monitors and employing software that automatically deleted words the service considered inappropriate, became the victim of its own supervisory tactics. The New York Supreme Court held them to the higher standard expected of an editor, rather than a mere distributor, in the physical world.
Section 230 reversed this equation in the online world. In addition to offering protections for third-party statements, the act created a "good faith" exemption from liability for actions interactive computer service providers took in to shield users from defamatory or otherwise objectionable material.
Those provisions have contributed to making cyberspeech more protected than any other type. Among the cases already decided under the new law include Zeran vs. AOL, in which an AOL subscriber, using a pseudonym, posted Kenneth Zeran’s name and home telephone number on a bulletin board, purporting to advertise T-shirts celebrating Oklahoma City bomber Timothy McVeigh just days after the April 1995 explosion. AOL won that suit, along with the subsequent Doe vs. AOL, which charged the company with negligence in a chat room solicitation of, and subsequent sexual abuse of, an 11-year-old.
But just because the online service isn’t liable does not mean that the author of potentially defamatory material is off the hook. AOL’s Boe cites White House aide Sidney Blumenthal’s $30 million libel lawsuit against Internet columnist Matt Drudge. Relying upon the Zeran decision, a federal judge dropped AOL as a co-defendant, a move Boe applauded because "there was no evidence that AOL had played any role in publication or editing of Drudge’s content." But if Blumenthal’s libel case were to be proven, AOL might be more culpable than in the other cases; the company paid Drudge to make his Web site available on AOL.
"The criticism I have of Zeran is that Congress did not intentionally immunize individuals who take no action to restrict defamatory content," said Ian Ballon, an attorney and author of the forthcoming Internet law treatise E-commerce And Internet Law. While AOL might have won the cases based on the law's "good faith" provisions alone, Ballon said that the company "argued for a broad interpretation that at its extreme, allows a service provider to argue for immunity. It was excellent lawyering on their part."
Other Internet experts agreed that ISPs have marshaled an impressive array of legal defenses over the past three years. "There is nothing inherent wrong with them having it both ways," said UCLA Law School professor Eugene Volokh. "On the one hand, you don’t want them to be held liable because there is no way we can prescreen for substantive content. On the other hand, we would like them to screen either patently defamatory, profane, or sexually explicit" content. Forcing them to rigidly adopt one model or the other could have negative consequences, he said.
But the pressure from different sides may eventually force ISPs to choose sides. Roy Lucas, attorney for the Florida abortion clinic suing AOL, argues that while other parties are culpable as well, Compuserve is to be blamed for not screening out illegitimate usage of the service. Information that led to the 1993 murder of Florida abortion provider John Britton came from the computerized service, Lucas said.
"Where you draw the line isn’t obvious," said Manny Klausner, a Los Angeles-based attorney representing Drudge in his libel suit. He noted that the defining libel case, New York Times vs. Sullivan, was not over content from the Times but from an advertisement run in the newspaper. "There were a few details that were off, but the Supreme Court ruled there was not liability unless malice is shown."
 | - by Drew Clark |
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