Doe v. Sexsearch.com: Placing Real-life Liability Back Where it Belongs in a Virtual World

• Publication year: 2007

Jon Burns⁰

This Recent Development examines the implications of Doe v. SexSearch.com, a case decided by the U.S. District Court for the Northern District of Ohio in August 2007, on jurisprudence surrounding website immunity from liability as provided by the Communications Decency Act of 1996. Specifically, this Recent Development compares the reasoning used in SexSearch.com with that used in Fair Housing Council v. Roommates.com, a May 2007 case decided by the Ninth Circuit Court of Appeals. The author asserts that the Roommates.com decision broke with the will of Congress as expressed in the Communications Decency Act and with federal court precedent, as it opened up a more narrow view of immunity under the Act. SexSearch.com is a step back towards clarity and a more equitable distribution of liability for user-supplied online content.

I. Introduction

While cruising SexSearch.com, an online dating site that encourages members to meet up and have sex,¹ John Doe came across the profile of a girl claiming to be eighteen years old. Doe chatted with the girl through the website and later met her to engage in consensual sexual relations.² Shortly after this encounter, Doe was "arrested and charged with three separate counts of engaging in unlawful sexual conduct with a minor, all felonies of the third degree."³ He now faces up to fifteen years in prison because the girl he believed to be a consenting adult was really a fourteen-year-old girl.⁴ These disturbing facts led to Doe v. SexSearch.com, a federal court case which examines the website's role in these events for the purpose of real-life liability.

Freedom of expression facilitated by the Internet, which now sustains more than one billion users,⁵ has led to a simplification of everyday life that is unparalleled in world history. With several clicks of the mouse, Web users can visit search engines and encyclopedias to find answers; online auctions, classifieds, and e-commerce websites to make purchases; blogs, video-sharing, and social networking sites to express themselves; and online dating services to find love, both next door and half the world away. Sites such as Google, Yahoo!, eBay, and Amazon.com have become household names, encouraging the exchange of ideas between users.⁶

User freedom, however, has also led to acts of horror and abuse.⁷ The dissemination of libelous, obscene, hateful, false, and morally reprehensible information is an everyday occurrence on the Internet, a place where everyone with access has a voice. As these signals whiz through cyberspace to appear on a user's computer screen, their consequences are very real and often lead to actual abuse, discrimination, identity theft, sexual assault, and exploitation.⁸ This double-edged nature of the free exchange of ideas on the Internet has presented Congress and the nation's courts with a difficult legal problem. In a world driven by benefits, our legislators and judges must decide who should be held accountable for the noted abuses.

As online intermediaries, many websites structure user input by building profiles with the information, and then deliver the user input using searching and sorting techniques to allow other users to access it. When the input turns out to be false or illegal, should liability lie with the website that structured and delivered the information or with the user that provided the harmful information in the first place? Congress provided an answer to this problem with the Communications Decency Act ("CDA") in 1996,⁹ legislation that limits the liability of online intermediaries in order to foster a freer exchange of ideas.¹⁰ Since that time, it has been the job of the federal courts to interpret the statute and decide how far this limit on liability for online service providers extends. Despite its somewhat disturbing facts, SexSearch.com sends a signal that the courts are heading back in the right direction towards allowing the free exchange of ideas intended by the CDA.¹¹

Immediately following passage of the CDA, case law was "near-unanimous"¹² in holding that § 230(c) of the CDA gives an interactive computer service ("ICS")¹³ immunity in suits that are designed to hold it liable for third-party-provided content. Contrary to this precedent, in May of 2007 the Ninth Circuit Court of Appeals struck a rather considerable, if somewhat disjointed, blow to the conventional immunity offered to Internet intermediaries by the CDA in Fair Housing Council v. Roommates.com.¹⁴ Thus, the importance of SexSearch.com is that, as one of the first rulings on § 230 following Roommates.com, it did not continue down the same path. That is to say, the court in Sexsearch.com did not recognize the broad exception to § 230's protection that was opened up by the Ninth Circuit in Roommates.com. SexSearch.com is a step back in the right direction, a move that will help restrict extraneous litigation and foster an open Internet where responsibility lies with the user.

This Recent Development examines how SexSearch.com clarifies the scope of immunity given to online service providers by the CDA, which has been brought into question by the recent Roommates.com ruling. Part II reviews the relevant background law, including the CDA and prior case law construing CDA provisions. Part III discusses the SexSearch.com case itself, and Part IV analyzes the different ways the court construed the CDA provision in both SexSearch.com and Roommates.com. This Recent Development concludes that the SexSearch.com court has correctly interpreted the CDA, returning to a line of reasoning that other courts should follow.

II. Statement on the Law

A. The Communications Decency Act

Congress addressed liability for online intermediaries with the CDA, which "granted most Internet services immunity from liability for publishing false or defamatory material so long as the information was provided by another party."¹⁵ Congress also recognized that "the Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation."¹⁶ one of its expressed policy goals in the CDA was "to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by state regulation."¹⁷

Section 230(c) expressly states that "no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."¹⁸ Accordingly, when a piece of information shows up on an Internet website or networking service and the ICS is not the producer, that service will not be held liable for the information because it is not considered the "publisher."¹⁹

In the Act's definitions section, § 230(f), "interactive computer service" is defined as "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet."²⁰ Practically speaking, most websites and Internet service providers ("ISPs") fit into this category and courts do not deliberate on this part of the test in their analyses.²¹ "Information content provider" is defined as "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service."²²

The central issue that courts confront when applying the CDA for purposes of immunity is the breadth of the definitions of "information content provider" and "publisher"²³ as two key terms within the CDA.²⁴ The greater extent to which an interactive computer service—which could be an ISP such as America Online ("AOL") or a website such as Craigslist—is seen to be merely a publisher of information from a third-party information content provider ("ICP"), the greater the immunity from liability.²⁵ A website that does nothing but allow users to input information that is displayed without any sorting or editing by the website would be completely protected under this statute because it cannot be said to be responsible either "in whole or in part" for the information, and is thus not the ICP.²⁶ Such a website would not be treated as the publisher and would not be liable for any injuries that result from the information.

The term "in whole or in part"²⁷ is a term which courts must clarify to determine the breadth of immunity that the statute provides. For purposes of application, there are two extremes in reading this part of the statute:

Reading #1: So long as the ICS is responsible in part (any part, even 0.1%) for the development of the content, then the ICS is an ICP and [immunity under] 230 isn't available. This reading isn't very useful because it would apply whenever an ICS edited any third party content, which is exactly what 230 routinely has been held to protect.

Reading #2: So long as any third party ICP was responsible in part for the content's development (even 0.1%), the ICS isn't liable for it. This means that the ICS could have a great deal of involvement in the content but still avoid liability. This is by far the dominant interpretation of the statute.²⁸

Where on the continuum between these extremes any given court chooses to read the statute is directed by its view of how far ICS immunity should be extended.

B. Existing Case Law

Case law surrounding the CDA has generally been consistent since the first test of its authority shortly after the Act was passed.²⁹ In Carafano v. Metrosplash.com, Inc.,³⁰ a Ninth Circuit case upon which both SexSearch.com and Roommates.com relied, the court stated that "courts have treated § 230(c) immunity as quite robust, adopting a relatively expansive definition of 'interactive computer service' and a relatively restrictive definition of 'information content provider.' "³¹ The facts of Carafano involved a "cruel and sadistic...