Shooting the messenger: an analysis of theories of criminal liability used against adult-themed online service providers.

AuthorWalters, Lawrence G.


Since the inception of the Internet, Congress has attempted to keep pace with technological developments in cyberspace, and the unique legal issues they spawn. Occasionally, lawmakers demonstrate a flash of competence, but U.S. law is infamous for its tendency to lag behind technology at a seemingly embarrassing pace. The potential criminal exposure facing providers of online services is one of the areas that have received a startling lack of attention from legislators or the courts, despite the gargantuan stakes facing this industry, and the increasing popularity of social networking websites that allow third-party users to upload content. Intellectual property issues impacting Internet communications are being hashed out at a rapid pace, as evidenced by the recent filing of a slew of copyright infringement cases--particularly by the producers of adult-oriented content. (1) In fact, the adult entertainment industry has taken the lead in exploring the contours of "end user" copyright infringement liability, (2) and use of fingerprinting technology designed to identify infringing material on the Internet. (3) One online adult entertainment company is even suing its own members for copyright infringement, after tracking their alleged activity in illegally sharing content they had accessed as members. (4) Using these and other methods, the adult industry hopes to stamp out online piracy by 2012. (5) Since the adult industry has historically taken the lead in pushing the development of new technology, (6) it is not surprising that legal disputes involving erotic material are driving the development of Internet law in general.

Issues relating to the civil liability of so-called "online service providers" (OSPs), such as "tube sites"--based on user-generated material--are also percolating in the lower courts, with the Viacom v. YouTube case expected to be the one that reaches the U.S. Supreme Court. (7) But starkly absent from the current spate of litigation involving website operators' liability for online activity is any substantial case law or legislation detailing the contours of potential criminal liability facing OSPs, based on the acts of third parties such as their customers or end users. Little has been written on the subject from an academic perspective, either. Exacerbating the lack of legal guidance on this issue are the incredibly harsh potential criminal sanctions facing any OSP targeted by state or federal law enforcement authorities under these circumstances. Criminal laws, including vague accomplice liability statutes, (8) can result in draconian legal penalties being imposed on website operators having only tangential involvement in the alleged illegal conduct. Such penalties can include years in prison for the responsible individuals, seizure of all business assets, and millions of dollars in fines. (9) Yet those companies that provide Internet-based services to third parties, such as hosts, search engines, tube sites, and online dating sites, remain largely in the dark when it comes to their responsibilities and liabilities relating to compliance with criminal laws.

As explained more fully below, those OSPs engaged in the controversial realm of providing access to adult-themed material fall into a 'gray' area of the law, and are potentially subject to targeting by law enforcement authorities based on the type of material uploaded by their customers--much more so than their mainstream OSP counterparts. Such disparate treatment of adult-oriented OSPs, based on the content of the speech flowing through their networks, raises substantial First Amendment concerns relating to viewpoint discrimination. (10) Irrespective of the eventual constitutional defenses that might ultimately be available to the OSP, the danger of prosecution persists. The potential for getting caught up in a criminal indictment based on the actions of third-party Internet users has historically been seen as a cost of doing business, even as the OSP industry continues to blossom in recent times with the infusion of social networking and user-generated content sites. Nevertheless, today the line between legal protection and serious criminal liability for OSPs is difficult to discern, especially for operators who invite, or focus on, adult-themed materials originating from their subscribers. While some support for a claim of immunity can be found in federal statutes--at least with respect to the application of state criminal laws--the contours of such protection have not been well defined, and prosecution for federal criminal offenses remains a substantial concern. As a result, the affected businesses remain wholly uncertain of both their exposure and the compliance obligations expected of them by law enforcement authorities.

This article seeks to explore the relatively unmapped territory of potential criminal liability for OSPs providing online access to adult content submitted by their third-party users. Part I examines the evolution of service provider liability beginning with the first criminal prosecution against an OSP and the subsequent proliferation of user-generated content websites. Part II details the recent criminal actions against OSPs by state and federal authorities, and illustrates the legal challenges facing these companies. Part III discusses the existing legislative protections provided to OSPs, primarily in the context of civil liability. Part IV addresses potential criminal charges facing OSPs under various state and federal statutes. Finally, Part V looks at the existing state of affairs and explores the need for new federal legislation clarifying the status of service provider liability in the criminal context for the future.


    The Internet, if not by choice then most certainly by default, has become the preferred venue for disseminating speech. Megaphones and telephones have given way to keyboards and forum boards--the World Wide Web has changed the flavor of public discourse forever. Because of the web's popular perception as the ultimate public forum for free expression, it may be easy to overlook the fact that private entities are responsible for enabling such a forum. From website hosts to forum board operators to social networking sites, the free flow of end-user communication online depends on the willingness of a private entity to enable these services. Any such business must evaluate and manage its potential legal exposure--from both civil and criminal perspectives. Utilizing a simple cost-benefit analysis, OSPs will be inclined to cease offering a forum for communication if the risks are too high to justify the anticipated profit. The forum of communication will then cease to exist. While no cognizable First Amendment claims can be asserted against an OSP based on a pure business decision to cease operating based on liability concerns, given the lack of governmental attention to this problem, free speech interests are implicated if this popular venue for modern speech begins to disappear as a direct result of uncertain or intolerable legal exposure. (11) Where certain risks cannot be reasonably quantified, responsible business entrepreneurs simply pass on the opportunity to provide the service, or find another jurisdiction in which to operate where the risks are more manageable. Online services can be provided from just about any location that has reliable, established bandwidth resources. Numerous developing countries are increasingly capable of serving the bandwidth needs of OSPs. (12) Accordingly, OSPs are not hesitant to relocate to foreign jurisdictions if the legal risks in the United States become untenable.

    1. BuffNET--The First Service Provider Prosecution

      In 1998, the New York State Attorney General's Office began what appears to be the first reported criminal investigation of an OSP based on user-generated material. The initial target was an online newsgroup ("Pedo University"), which accessed the Internet utilizing a regional Internet service provider,, to exchange child pornography among members. (13) Law enforcement, as well as several customers, notified BuffNET about the illegal content sharing, but the Internet service provider apparently took no action on the matter. (14) After the successful prosecutions of several of Pedo University's members, law enforcement turned its focus from the users of the group to BuffNET itself, based on its role in making the illegal images available online. (15) Ultimately BuffNET pied guilty to knowingly providing access to child pornography, essentially acknowledging an obligation to eliminate illegal content appearing on its network. (16) Prior to this case, prosecutions of this nature typically only involved the user actually possessing and distributing the illegal materials, as opposed to the OSP that provided the technological means of publication. In effect, BuffNET opened the door to imposing liability on an OSP under the theory that it merely provided the electronic method and/or opportunity for a third-party to commit a criminal act. Law enforcement would call this "facilitating" or "aiding and abetting" illegal activity. Following the BuffNET approach, if an OSP has knowledge of any illegal behavior by its customers but declines to take swift action against the users after notification, the provider could face criminal liability. And although BuffNET remains the earliest example of criminal prosecution against an OSP, its theory of liability--i.e., knowledge coupled with the failure to act after notification--remains the presumptive, customary standard for imposing criminal liability on OSPs even today.

    2. The Emergence of User-Generated Content Sites

      In recent years, user-generated content sites like,, and have fueled the development of "Web 2.0." These sites have captured the imagination of a new generation of web...

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