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Tuesday, March 17, 2009

Web Host/Kiddie Porn Impresario Isn't Entitled to CDA 230 Immunity

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A very interesting case involving online publisher immunity under Section 230 of the Communications Decency Act came out of Michigan earlier this month in the case of People v. Gourlay, No. 271214 (Mich. Ct. App. March 3, 2009)(unpublished). The CDA 230 issue arose in the context of a criminal prosecution for child pornography tucked inside an ineffective assistance of counsel claim. But even at that procedural distance the court's exploration of how CDA Section 230 might apply to hosting unlawful content is worth reading.

It's a weird case, involving an underage boy who was "self-publishing" over the Internet videos of himself engaged in sexual acts. This was before he came to the attention of defendant Gourlay. After the defendant saw the videos on the Internet, he contacted the boy and together they hatched a plan to take the boy's Web site to "the next level." The defendant involved himself in the boy's activities by registering a new domain name, hosting the site, supplying some computer programming to permit the Web site to supply video streaming of the boy's activities via a premium, members-only portion of the site. The defendant also allegedly advised the boy how to use the camera and "act" for maximum effect. Together, they developed two Web sites.

The defendant was tried and convicted of three state-law child pornography offenses. On appeal, he argued that he was entitled to a new trial because his attorney had failed to request a jury instruction advising the jury that, under CDA Section 230, "an Internet service provider does not create pornography by providing bandwidth or by providing technical or artistic assistance."

The appellate court accepted the defendant's arguments that he was an interactive computer service provider for CDA Section 230 purposes, and that CDA Section 230 potentially immunized him from state-law criminal prosecution. At this point, the court could have -- but didn't -- simply ruled that the defendant was an "information content provider" not entitled to immunity because he had involved himself in the creation of the child pornography being streamed via the boy's Web site. CDA Section 230(f)(3) defines an "information content provider" as "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet ...."

Instead, the court looked at the elements of the criminal offenses that the defendant was convicted of and compared them to the activities of a hypothetical interactive computer service provider. At least that's what I think the court was doing here. The charged offenses required proof that the defendant actively and intentionally directed the child to engage in sexual activity for the purpose of producing child pornography. Other charges for distributing or promoting child porn required proof that the defendant promoted or distributed child pornography with criminal intent. In other words, the court said, the prosecution alleged and proved that the defendant was a knowing, active participant in the creation of the two Web sites. These activities do not fit the definition of an interactive computer service provider, the court reasoned, so the defendant was not entitled to a jury instruction on CDA Section 230.

Along the way the court remarked that it could imagine a child porn prosecution in which a Web host was entitled to a CDA Section 230 defense, such as might be the case if a Web host continued to make available child porn even after it had received notice that the material was available on its network. "However," it said, "the prosecution of defendant for distributing or promoting child sexually abusive material was not based on such a theory."

Who knows what to make of this case? I don't think it stands for the proposition that a Web host distributing user-generated pornography is in danger of losing its CDA Section 230 immunity. The defendant recruited the boy to go into business with him, so he was actively involved in the creation of the unlawful material. The court made no mention of whether the defendant was making money off the site other than a hosting fee (unfortunately, though the statute seems indifferent to this fact). And, as for his claim that the programming, domain name registration, and other hosting services he offered to the boy were standard Web hosting services, the court noted that the defendant failed to present any evidence at trial that he provided similar services to other customers.

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