Vol 7 No 1 - Roger Williams University School of Law
Vol 7 No 1 - Roger Williams University School of Law Vol 7 No 1 - Roger Williams University School of Law
network and removed the edition of the Drudge Report from itsonline archives.75 In Blumenthal, the court held that Section 230of the CDA prevented AOL from being liable in tort as a publisheror distributor of the Drudge Report:AOL is not a passive conduit like the telephonecompany, a common carrier with no control and thereforeno responsibility for what is said over the telephonewires. Because it has the fight [sic] to exercise editorialcontrol over those with whom it contracts and whosewords it disseminates, it would seem only fair to holdAOL to the liability standards applied to a publisher or,at least, like a book store owner or library, to the liabilitystandards applied to a distributor. But Congress hasmade a different policy choice by providing immunityeven where the interactive service provider has an active,even aggressive role in making available contentprepared by others . . . Congress has conferred immunityfrom tort liability as an incentive to Internet serviceproviders to self-police the Internet for obscenity andother offensive material, even where the self-policing isunsuccessful or not even attempted.76In reaching this decision, Blumenthal embraced Zeran’sconclusion that the CDA immunizes ISPs from content-based tortliability whether or not the provider can be shown to have actualor constructive knowledge of improper content.77The blanket immunity the CDA furnishes Internet serviceproviders for third-party content is problematic. Under theholdings of Zeran and Blumenthal, an ISP can escape liability forthird-party content completely, without an evaluation of theprovider’s knowledge as to the content of the material, or an indepthanalysis of the provider’s role in transmitting the material.In Blumenthal, America Online had formally contracted withDrudge to distribute his Drudge Report and actively promoted thenewsletter as a gossip success. Rather than examining thispreexisting relationship between Drudge and AOL to determinethe extent of the ISP’s knowledge as to the content of the DrudgeReport, the court awarded complete immunity to America Online75. See id. at 47.76. See Blumenthal, 992 F. Supp. at 51-52 (footnotes omitted).77. See Blumenthal, 992 F. Supp. at 50 (quoting Zeran, 129 F.3d at 330-31).
due to its status as an Internet service provider. By establishingthat an ISP will never be considered a publisher of third-partycontent, the CDA prevents courts from fully analyzing the natureand extent of the provider’s communications to determine liability.As a result, the CDA establishes content immunity for all ISPswho host third-party postings on the Internet, regardless of howthis information is transmitted, stored, or accessed by otherusers.78 An analysis of how the ISP maintains the contentinformation on its service is potentially important in determiningthe extent of the ISP’s knowledge.The importance of these principles is illustrated by anotherdefamation case following the enactment of the CDA. In Lunneyv. Prodigy Services Co.,79 a teenage Boy Scout, Lunney, suedProdigy claiming that he had been stigmatized and defamed by athird-party user who opened a number of Prodigy accounts underLunney’s name and posted vulgar messages on Prodigy’s bulletinboards, attributing them to Lunney.80 Prodigy monitored thecontent of these bulletin boards, and did in fact close down severalof the Lunney accounts due to obscene postings and inaccurateuser profile information.81 These events took place prior toCongress’ enactment of the CDA, but the decision was renderedafter the CDA became law.82 Without retroactively applying theimmunity provisions of the CDA, the New York Court of Appealsheld that Prodigy was not the publisher of the statements at issue,but rather served the function of a conduit, transmitting thirdpartymaterial without exercising editorial control over itscontents.83 The court likened Prodigy’s role in transmitting e-mailmessages to that of a telephone company connecting individualspeakers through electronic means, and concluded that it is notexpected that either conduit will monitor the content of its78. Although immunity for third-party content is established through Section 230for ISPs, some courts are extending this statutory immunity to other providers ofInternet services, such as online department stores. See Schneider v. Amazon.com,Inc., 31 P.3d 37 (Wash. Ct. App. 2001) (affirming lower court’s holding thatAmazon.com was a protected publisher of third-party content under Section 230 as faras its customer book reviews were concerned).79. 723 N.E.2d 539 (N.Y. 1999), cert. denied, 529 U.S. 1098 (2000).80. See id. at 539-40.81. See id. at 540.82. See id. at 543.83. See id.
- Page 186 and 187: similarities as well as differences
- Page 188 and 189: as well, such as the American Bar A
- Page 190 and 191: American Law Institute refused to p
- Page 192 and 193: enactment of the draft. This led to
- Page 194 and 195: such application.35 To the extent,
- Page 196 and 197: transactions involving goods other
- Page 198 and 199: quite controversial.49 As the histo
- Page 200 and 201: provisions of Article 2 (based in p
- Page 202 and 203: form license of information.63 Alth
- Page 204 and 205: principles articulated in several i
- Page 206 and 207: to by industry groups, with the res
- Page 208 and 209: powers going well beyond the UNIDRO
- Page 210 and 211: Contracts deals with unfair terms i
- Page 212 and 213: worth a thousand words. Picture a d
- Page 214 and 215: types of provisions being sought by
- Page 216 and 217: law is a complex one.125 Although s
- Page 218 and 219: the intellectual property balance o
- Page 220 and 221: Other Substantive IssuesThere are,
- Page 222 and 223: law,153 and many of UCITA’s provi
- Page 224 and 225: nature of law-making both domestica
- Page 226 and 227: Transactions Act).
- Page 228 and 229: acts of copyright infringement.7 Un
- Page 230 and 231: these rights.I. ISP LIABILITY FOR T
- Page 232 and 233: Cubby, the court in Stratton Oakmon
- Page 234 and 235: liability for third-party content.5
- Page 238 and 239: subscribers’ conversations.84 Fur
- Page 240 and 241: holder.92 Contributory liability ap
- Page 242 and 243: and Klemesrud on the counts of dire
- Page 244 and 245: eport, the White Paper on Intellect
- Page 246 and 247: imposed ISP liability both in insta
- Page 248 and 249: any infringing material either upon
- Page 250 and 251: provider liability, the European Co
- Page 252 and 253: of a defamatory statement.While saf
- Page 254 and 255: defamation.184 One case that illust
- Page 256 and 257: material that appears questionable
- Page 258 and 259: FBI’s Carnivore: Is the Governmen
- Page 260 and 261: and the legal limits of government
- Page 262 and 263: II. CONSTITUTIONAL ANALYSISA. Const
- Page 264 and 265: application developed in Katz v. Un
- Page 266 and 267: Amendment protections.50Substantial
- Page 268 and 269: communicating over the Internet pos
- Page 270 and 271: court will likely, as it has often
- Page 272 and 273: unconstitutional.81 Although CALEA
- Page 274 and 275: data attributable to the target sus
- Page 276 and 277: FBI facility for subsequent examina
- Page 278 and 279: EPCA Section 2518 provides that upo
- Page 280 and 281: The FBI has stated that its use of
- Page 282 and 283: provision,143 but judging from the
network and removed the edition <strong>of</strong> the Drudge Report from itsonline archives.75 In Blumenthal, the court held that Section 230<strong>of</strong> the CDA prevented AOL from being liable in tort as a publisheror distributor <strong>of</strong> the Drudge Report:AOL is not a passive conduit like the telephonecompany, a common carrier with no control and thereforeno responsibility for what is said over the telephonewires. Because it has the fight [sic] to exercise editorialcontrol over those with whom it contracts and whosewords it disseminates, it would seem only fair to holdAOL to the liability standards applied to a publisher or,at least, like a book store owner or library, to the liabilitystandards applied to a distributor. But Congress hasmade a different policy choice by providing immunityeven where the interactive service provider has an active,even aggressive role in making available contentprepared by others . . . Congress has conferred immunityfrom tort liability as an incentive to Internet serviceproviders to self-police the Internet for obscenity andother <strong>of</strong>fensive material, even where the self-policing isunsuccessful or not even attempted.76In reaching this decision, Blumenthal embraced Zeran’sconclusion that the CDA immunizes ISPs from content-based tortliability whether or not the provider can be shown to have actualor constructive knowledge <strong>of</strong> improper content.77The blanket immunity the CDA furnishes Internet serviceproviders for third-party content is problematic. Under theholdings <strong>of</strong> Zeran and Blumenthal, an ISP can escape liability forthird-party content completely, without an evaluation <strong>of</strong> theprovider’s knowledge as to the content <strong>of</strong> the material, or an indepthanalysis <strong>of</strong> the provider’s role in transmitting the material.In Blumenthal, America Online had formally contracted withDrudge to distribute his Drudge Report and actively promoted thenewsletter as a gossip success. Rather than examining thispreexisting relationship between Drudge and AOL to determinethe extent <strong>of</strong> the ISP’s knowledge as to the content <strong>of</strong> the DrudgeReport, the court awarded complete immunity to America Online75. See id. at 47.76. See Blumenthal, 992 F. Supp. at 51-52 (footnotes omitted).77. See Blumenthal, 992 F. Supp. at 50 (quoting Zeran, 129 F.3d at 330-31).
Change language