Vol 7 No 1 - Roger Williams University School of Law

subscribers’ conversations.84 Further, the court held thatProdigy’s independent acts of monitoring bulletin board postingsdid not alter its passive character in providing Internet service.85Thus, the court held that Prodigy, as a mere conduit fortransmitting third-party data, was not a publisher or distributorof the material for the purposes of tort law, and found no liabilityfor the ISP.86While Lunney’s holding is similar to Zeran and Blumenthal inthat the court found that an ISP was not liable as the publisher ordistributor of third-party data, Lunney differs in its analysis.Rather than regarding Prodigy’s actions in transmitting thirdpartye-mail messages to its bulletin board as a publication andthen resorting to the congressional safe harbor extinguishing ISPliability for third-party content, Lunney looked instead to theactual function performed by Prodigy in transmitting thesemessages. In concluding that Prodigy acted as a mere conduittransmitting the independent content of its third-party users, theLunney court evaluated the function performed by the ISP in thatcase. It then used this finding to determine both the ISP’s role aseither a publisher or distributor of the third-party content and theprovider’s knowledge of the material’s content. By regarding theISP as a medium for transmitting data rather than a form ofpublishing or distribution, the Lunney court came closer to fullyevaluating the role of an ISP as a medium for communication.Lunney’s holding suggests that the blanket immunityprovisions of the CDA are not necessary for a court to hold that anISP is not liable as the publisher or distributor of third-partycontent posted to its Internet service. Rather than resorting tocomplete immunity under the CDA, a more appropriate schemefor a court determining ISP content liability would constitutemaking a factual finding as to the role of the ISP in presenting thematerial to the public and then using this finding to determine theextent of the provider’s knowledge and control of the third-partycontent. This line of analysis would provide a technique for courtsto evaluate the extent of ISP liability in cases like Blumenthal,where the role of the ISP more resembles a publisher, withoutresorting to a blanket foreclosure on provider liability.84. See id. at 541-42.85. See Lunney, 723 N.E.2d at 542.86. See id.