Sex On The Net: Recent Cases Addressing Criminal Liability For Internet Providers

Co-written by Shelley Hall

"Is this legal? Can I get in trouble by downloading this stuff? What is your policy?"1

These three questions, posed by an undercover police officer to an Internet provider about on-line child pornography, have sparked the most recent controversy involving Internet crime related to sexual content. The questions highlight current legal confusion over whether Internet service providers (ISPs) can face criminal and civil liability for illegal content developed by third parties-specifically, child pornography and obscenity that violate state and federal criminal statutes.

ISPs serve as gateways to the Internet, providing access to materials produced by third parties around the world. ISPs generally do not monitor the third-party content that their subscribers access or post, in part because the effort would require enormous resources. One writer discussing the Internet traffic on BuffNET, a New York ISP, compared such a task to reading Shakespeare's complete works 3,200 times every day.2 Because ISPs do not actively screen sites, they do not know whether users are viewing websites, newsgroups, or bulletin boards that contain potentially illegal materials. Two recent cases depict how this action-or inaction-can lead to different results and different liability.

The Dreamscape Complaint

No law enforcement authority in the United States has filed criminal charges against an ISP for illegal content developed by third parties,3 and it is unclear whether federal or state laws would allow authorities to bring such charges. Section 230 of the Communications Decency Act might extend immunity from criminal charges to ISPs, although that protection is far from certain. Also, criminal charges raise possible constitutional concerns regarding scienter, or whether the ISP had knowledge of the illegal material.

This uncertainty, however, did not deter the New York Attorney General's office from launching a raid that could have far-reaching effects on the way ISPs monitor third-party content. On October 26, 1998, a New York state police officer allegedly asked for a tour of Dreamscape Online, an ISP in upstate New York. Authorities arrived the next day, but they skipped the tour and instead served a search warrant. Police seized Dreamscape's news server-the equipment that allows an ISP to provide Usenet access-and also served a subpoena ordering Dreamscape to produce any complaints it had received about Internet content.4

Prior to the search, Dreamscape had received one complaint from a supposed college student who posed the three questions above. The student had allegedly accessed a newsgroup involving child pornography. Dreamscape responded to the complaint by stating that it did not screen particular newsgroups for legality but that child pornography is illegal. Dreamscape also said it would cooperate with authorities if they brought illegal material to the ISP's attention. The "college student" turned out to be an undercover police officer who was testing Dreamscape to see...