Internet Law - Fall 2007

Shurgard Case

I believe that Shurgard is decided incorrectly on the issue of authorization.   I feel that the court should have found that there was still authorization at the time that the emails were sent.  For the court to deem the authorization void once the employees sent the emails opens a floodgate of uncertainty with regard to when authorization ends.  What if the employee had just used the email to send dirty pictures?  Would that have ended the agency?  It would be very difficult to figure out when loyalty to the agency had been breached and the standard would be constantly changing.  What if the company had a somewhat lenient policy with regard to their secrets and usually gave employees a second chance if caught.

The court should have found that there was still agency and therefore authorization atleast until the employees were notified otherwise or their employment was terminated.  I dont believe that this statute was written to target diliberate intentional knowingly unauthorized access to computers such as when viruses and worms are used.  I cant imagine that the employees contemplated whether or not their use of the email addresses was authorized or not.

Another issue to look at is that fact that the email addresses can be accessed from other computers not just the ones at the company.  What would be the result if the files were sent from personal computers on the Shurgard email accounts.  What if they were sent from personal accounts on business computers.  Under that scenario it would not have been unauthorized access but the results and damages are clearly the same.

Beware of the box.

If cert. was granted for the Schmeran case and section 230 is brought up in front of the Supreme Court, I think it would stand and Zeran would be followed. First, the Legislature made it very clear in what the interpretation of this statue would be and the intent behind its drafting. Secondly, I think the court should follow Zeran. If the outcome of Prodigy was the fate of all other ISPs, I am almost positive the internet would not be what it is today. The nature of the internet makes it impossible for ISPs to "babysit" its users, which creates shouldering them with liability an undue burden. This burden would have proven to be a disastrous effect on the progression of the internet expansion and the speed at which it does so. Most services that we enjoy today would have proved impossible, as no ISP would want to give the ability of verbal freedom, with the risk of taking responsibility for this freedom. Also, it would rid the industry of its large investment base. On the other hand, I do agree that with all the good Section 230 provided, some bad did come along with it. Unfortunately, this is true with all societal and technological advancements since the dawn of mankind. Hopefully, people don't lose sight and destroy personal freedoms and liberties in an attempt to prevent all imaginable harm from ever occurring.

A box we build to surround ourselves in is as much a trap as it is a protection.

Ken SS03

Section 230 was a welcome change from the harsh result of Prodigy.  230(c)’s ‘Good Samaritan’ provisions encourage proactivity, but by no means make it mandatory.  The fact that intermediaries now enjoy almost total immunity is troubling.  Intermediaries like AOL in Zeran are generally seen as deep pockets, but in many situations they will be the only pockets for plaintiffs to reach into.  Obviously this can’t be the justification for holding AOL liable but maybe there needs to be some middle ground -- in the interest of justice.  Section 230 is comprehensive and very broad and it is a nice bright line rule for the courts to follow, but when plaintiffs have no other recourse and the ISP’s have knowledge, the result just does not seem right.  Ken Zeran pleaded with AOL to remove the postings in question and AOL was not helpful; maybe they knew they were immune or maybe 230 was a nice safety net surprise.  In Schmeran, the court should construe 230 as containing some type of liability for knowledge (or receiving notice) of potentially defamatory material, and subsequent inaction by the ISP.  The other option would be requiring the ISP to give up the name/location of the defamer, or at least requiring a good faith inquiry by the ISP as to where the defamed could find the defamer. 

Long live Zeran

The court in Zeran refused to pave a new road in internet law, and decided that it would hold the statute to its strictest standard: that ISP's are not to be treated as publishers or authors of any material posted or desseminated using its service. It also acknowledged that distributors (which it explains an ISP is a distributor) is only liable if he knew or should have known of the content.

This ruling from Zeran protects internet service providers from having to meet an impossible, debilitating rule which would essentially require them to quit acting as ISP's, as it would be impossible for them to monitor and check the truth of any postings or content distributed by users using its service. If the Supreme Court were to hear a section 230 case, in the spirit of internet freedom, civil liberties, and a concern for placing impossible obstacles on ISP's, the court should follow the Zeran ruling. It protects one of the modes of information sharing that is both essential to our social world and needed to ensure the free spread of ideas and information. The Zeran court took these considerations into account in their ruling, and set a precedent that should be followed if we wish to maintain the free spirit of the internet.

Assignment 5

If Schmeran goes to the Supreme Court, they will likely follow the current thoughts on Section 230 immunity for internet service providers. The case would be one of statutory interpretation and the current Supreme Court has shown incredible deference to legislative intent in such cases.  Congress enacted the Communications Decency Act to protect children from harmful pornography while encouraging legal free speech and communication. The Court would examine the congressional record and find a clear intent to protect the service provider from liability for speech they did not themselves create. There is an argument to be made that Congress only intended to give protection for obscene and “harmful-to-minors” information created by others, not defamatory speech. This argument would fail and the Zeran rule would be cemented as the law of the land.

Zeran vs. Schmeran

Yes, it should follow Zeran. Congress enacted the statute to “maintain the robust nature of Internet communication” and offer “a forum for a true diversity” of speech. To allow the internet to flourish the statute gives ISP’s immunity from information provided by another content provider. The court interpreted the statute correctly in the Zeran case and should follow the same here in the Schmeran case. If a change should be made then it is for Congress to change the statute. I think blanket immunity for ISP’s is too much and the statute needs to place some liability on ISP’s especially when they have notice or actual knowledge of such defamation to make a reasonable effort to try and remedy the situation. 

If it ain't broke....

I believe that the Supreme Court should follow the Zeran reasoning in the Schmeran case.  Section 230 states that “No provider or user of an interactive computer service shall be treated as the publisher…” and that “No provider or user of an interactive computer service shall be liable…”  I believe that the legislative intent is pretty clear here.  Congress wants to protect the people’s right to speak freely, in whatever medium.  If Schmeran overturned Zeran, the “chilling effect” would be astronomical.  Everything blog and webpage on the internet would then be carefully scrutinized and lawsuits would grow exponentially.  Hmmmm….maybe that wouldn’t be so bad for us future internet lawyers!

I think that this is a policy argument and that the Zeran court had it right.  If this problem is getting out of hand, it is for Congress to amend the Communications Decency Act. 

No better rule than Zeran

As much as I don't agree with the logic in Zeran that all distributors are publishers, and I think that the general WTFness of that statement seriously undermines the credibility of the opinion, I believe the court correctly construed the intentions of Congress in § 230 to foreclose liability for ALL intermediaries. Without some clear and affirmative language in § 230 demonstrating exceptions to this blanket immunity, it is reasonable to assume that Congress would prefer that intermediaries not be punished for transmitting some “potentially injurious messages” when the alternative would undoubtedly result in some “chilling” of free speech and rewarding intermediaries not to review or filter the content available on their networks.

It is also important to note that the economic logic behind holding intermediaries responsible is based on the difficulty posed by tracking down the actual posters of defamatory statements. Just as new technology has allowed the RIAA to track down users who have violated copyrights by downloading and distributing protected music, the ability of defamed parties to track down defamers using I.P. addresses and investigatory services will only grow. It would be unwise to set out a rule which makes intermediary liability more likely, where the technology is becoming more and more capable of enabling a harmed plaintiff to find the original defamer.

Zeran: the unwilling martyr

It may not have happened yet, but I believe the Supreme Court will eventually review Section 230 or its progeny. And if we are lucky enough to have a case such as Zeran serve as the basis for that review, the public debate around it would help bring to light all the pros and cons that come with granting ISPs such a broad immunity.

I believe the Court will have no problem with Section 230 itself; it will not be subject to strict or intermediate scrutiny because, neither ‘on its face’ nor ‘as applied’ does it attempt to restrict free speech, quite the opposite, it was Congress' desire to protect free speech. So because they approve of section 230, but want to avoid the result of Zeran: the unwilling martyr as a dangerous precedent to set, they will reach the “just” result by balancing.

On one side: the need "to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer", and what better example than Zeran of how computers can be used to cause real (not merely financial) damage. And on the other side: the need to " keep government regulation of the Internet to a minimum".

Continue with §230

Even if the Schmeran case has an identical fact pattern to the Zeran case, the court should still follow §230 the way it had been used in Zeran. Even with §230 immunity for ISPs, the actual creator and original publisher of defamatory content could still be held liable.

 In Zeran, the original creator of the allegedly defamatory content was not pursued. Ten years later, technology has evolved making it much easier to identify an anonymous poster on the Internet. Adding the ECPA, the ISP would have to divulge the identity of the tortfeasor under court orders or by a warrant.

 The original policy concerns for creating §230, while slightly outdated, still have application in the present day. In the 10 years since Zeran, the internet has grown rapidly, with the amount of information growing exponentially as more people gain access.  Also, with the ever increasing amount of information exchange on the internet, other theories of ISP liability would be too burdensome. If notice liability was considered an “impossible burden” in 1997, it most certainly would be today as well.

 It seems as though with all the identifying technology, finding the original creator of allegedly defamatory comments would not be as difficult as in years past. Maintaining immunity for ISPs would not leave the tort victim without recourse, as they could still pursue the original publisher of the content.