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A growing concern about online predators and child pornography on the Internet has spawned a new series of legal challenges, with plaintiffs suing Internet service providers for allegedly failing to police the Net for porn. Plaintiffs’ lawyers argue that ISPs are not only failing to monitor their Web sites properly, but federal laws are also contributing to the problem by granting ISPs broad immunity from suits challenging content they carry. Frustrated by what they see as weakness in the federal laws, several states are considering legislation allowing Internet users to invoke “do not e-mail” orders to promoters of adult products. In the meantime, attorneys are forging ahead with suits seeking to hold ISPs liable for harmful material that passes through their portals. In Texas, a minor and his parents have filed a $10 million lawsuit against Yahoo! Inc. for allegedly allowing a man and others to share pornography on a site called “Candyman.” Doe v. Bates and Yahoo,No. 5:05 CV 91 (E.D. Texas). In Oregon, a woman has filed a $3 million lawsuit against Yahoo for nude pictures her ex-boyfriend allegedly placed in a Yahoo profile. Barnes v. Yahoo, No. 05-926-AA (D. Ore.). In Los Angeles, a 19-year-old woman recently settled a lawsuit against AOL LLC for an undisclosed amount, claiming that a former monitor of a “kids only” chat room seduced her online when she was a teen, and that AOL was negligent in failing to protect her. Reed-Brennan v. America Online, No. SC085091 (Los Angeles Co., Calif., Super. Ct.). “I think the ISPs have become the wild, wild West,” said attorney Thomas R. Rask of Kell Alterman & Runstein in Portland, Ore, who is handling the nude-photo lawsuit against Yahoo. “People can do whatever they want under the guise of free speech. People are allowed to peddle whatever they want on the Internet and ISPs have just turned a blind eye.” In that case, which is on appeal in the 9th Circuit, a woman sued Yahoo for $3 million, alleging that the ISP failed to fulfill a promise to remove nude pictures of her from the Web. The plaintiff, Cecilia Barnes, 48, claims that an ex-boyfriend posted pictures of her on the Internet and pretended to be her, and strangers showed up at her workplace looking for dates. The suit claims that AOL knowingly allowed the photos to remain online for 67 days, and didn’t remove them until a lawsuit was filed.
Choking off the porn money flow It’s the latest approach to fighting online child pornography: Cut off online payment mechanisms for Web sites selling the material. That’s the mission of the new Financial Coalition Against Child Pornography, a group of banks, credit card and Internet companies that have teamed up to fight what was recently described in Congress as a $20 billion industry that continues to expand in the United States and overseas. The idea behind the new group, formed last month, is to cut off the mechanisms Web sites use for receiving payment for child pornography. European banks are expected to join in the next few months. “The thought is to find ways to make it more difficult for them to move money through the system,” said attorney Carlos F. Ortiz, a partner in DLA Piper Rudnick Gray Cary’s New York office who is counseling the coalition on legal and privacy matters. “Organized crime is doing this. If you can find a way to strangle the money flow, then you take the financial incentive away, and then they’ll move onto something else.” The coalition consists of 18 companies, including AOL, Yahoo, American Express, Bank of America, Citigroup, Visa International and PayPal. The group’s goal is to eradicate child porn by 2008. While the coalition is currently trying to figure out how technically to launch its plan, here’s an example of how it could work. Some organizations already have online mechanisms so that anyone can anonymously submit links to Web sites that are selling child porn. Those groups turn that information over to authorities, which then investigate the sites to determine if what they are doing is illegal. Coalition members are hoping that authorities will share a list of the offending sites with them. Then, for example, if Visa discovers that a company running one of the child porn Web sites is a customer, Visa can stop serving that company. -Tresa Baldas

Patrick Carome, an attorney with Wilmer Cutler Pickering Hale and Dorr in Washington who is representing Yahoo in that suit, declined to comment. Yahoo officials also declined to comment on the suit, but defended the company’s role in combating pornography on the Internet. “We encourage our users to submit [turn in] content that may be in violation of our policies,” said Yahoo spokeswoman Mary Osaka, noting that “content that is unlawful or threatening” is closely scrutinized by Yahoo. “Yahoo is committed to reviewing reports and taking appropriate action. And appropriate action could include the removal of such content or the deactivation of the user’s account.” Rask noted that the suit was dismissed at the trial level under the Communications Decency Act (CDA), which holds that ISPs are not accountable for content posted by third parties. On appeal, Rask said he plans to argue that Yahoo failed to follow through on its duty to take the photos down-a claim allowed under Oregon state law. “When Yahoo said to our client, ‘We will stop this,’ and then failed to do so, they undertook an affirmative duty,” Rask said. “Yahoo’s position has been that we are covered under the CDA and you can’t sue us. We’re hoping the 9th Circuit will reconsider.” Federal shield But given the vastness of the Internet, federal laws should shield ISPs from responsibility for harmful material posted by users, argued John Morris, staff attorney at the Center for Democracy and Technology in Washington, a nonprofit public policy group that focuses on free speech and privacy matters related to the Internet. “It’s really unrealistic to expect that ISPs should be responsible for content on the Internet,” said Morris, adding that it is also impractical “to try to make ISPs be the traffic cops of the Internet. Architecturally, the Internet is not suited to have that kind of traffic cop trying to protect kids.” Morris believes the “most appropriate way” to protect kids online is to use filtering and parental-empowerment tools that allow a parent to regulate what the child is able to access. He also defended ISPs’ role in combating pornography, saying that “every mainstream ISP in the country is offering parents user employment tools to protect their kids.” Attorney Adam Voyles adamantly disagrees. “I don’t think they’re properly monitoring their Web sites,” said Voyles, a partner at Heard, Robins, Cloud & Lubel in Houston who is representing a minor and his family in a $10 million lawsuit against Yahoo. In that case, plaintiffs claim that Yahoo breached its duties by allowing a man and others to share child pornography on a site called Candyman. The site, which was up for two months, included nude pictures of their son, who, they alleged, was molested and photographed by a neighbor. “Our allegations, among others, are that Yahoo itself violated federal child pornography laws by receiving, distributing, storing and disseminating child pornography,” Voyles said. Neither Yahoo nor its lawyer would comment on the Texas suit. A magistrate judge has recommended dismissing the suit under the CDA, but another judge is currently reviewing that recommendation. Voyles is hopeful that the court will not grant broad immunity to Yahoo. “If one or more courts come down and hold ISPs liable for possessing child pornography, I think you’ll see a radical change in the way they do business. . . . They’ll have a financial incentive to clean up their Web sites,” said Voyles, adding that plaintiffs need recourse against ISPs. “If they don’t have a remedy against the ISP, they’re never going to know who is actually the one peddling the child pornography.” But convincing the courts to hold ISPs responsible for content is a tough battle, said Florida plaintiffs’ attorney Brian Smith. He should know. In 2001, the Florida Supreme Court dismissed his $8 million lawsuit against AOL, which alleged that AOL aided in the distribution of child pornography by allowing a school teacher to market videotapes and photographs of a minor in “chat rooms.” The suit also claimed that AOL failed to adequately monitor the “chat room” discussion. Jane Doe v. America Online Inc., 783 So. 2d 1010 (2001). The Florida Supreme Court held that under the CDA, Yahoo was not liable for the content. And the U.S. Supreme Court refused to hear the case. “The Supreme Court just slammed the door shut in our face,” said Smith of Smith & Vanture in West Palm Beach, Fla., who believes that the federal Communications Decency Act is being misinterpreted. “The intent of Congress was certainly not to give that broad a protection to the ISPs.” The 1997 landmark case that has shielded ISPs is Zeran v. America Online Inc., 129 F.3d 327, a 4th Circuit case in which a California man sued AOL after discovering his name and phone number were listed in an AOL advertisement for products that glorified the Oklahoma City bombing. The man said he knew nothing about the ad, and sued AOL for negligence, claiming that the ISP had a duty to prevent the reposting of the bogus messages. The court ruled that AOL was exempt from the lawsuit under the CDA. ” Zeransays there’s absolute immunity for ISPs. And unless someone tells me there’s been another circuit court opinion to the contrary, Zeranis still good law. It’s ridiculous,” Smith said. States taking action Meanwhile, the absolution of ISPs in pornography cases has prompted several states to take matters into their own hands, said attorney Matthew Prince, who teaches Internet law at The John Marshall Law School in Chicago. According to Prince, seven states are currently considering legislation that would allow Internet users to have “do not e-mail” orders to promoters of adult material. “Part of the reaction of states has been: If you’re going to absolve these ISPs of responsibility, then we’re going to turn around and go after it on the state level,” said Prince, Currently, Utah and Michigan are the only states with do-not-e-mail statutes. States considering similar legislation include Connecticut, Georgia, Illinois, Wisconsin, Minnesota, Iowa and Hawaii. Prince, who also is CEO of UnSpam Registry Services Inc., a Park City, Utah-based company that provides the do-not-e-mail service to Utah, said that “There should be someway for you as a person to say, certain material isn’t allowed in my home.” That philosophy, however, has irked the pornography industry, which has filed a lawsuit in Utah challenging the do-not-e-mail law on constitutional grounds. Free Speech Coalition v. Shurtleff, No. 2:05-CV-00949 (D. Utah). “It violates free speech because of the restraint it puts on free speech,” argued Jerome Mooney of the Mooney Law Firm in Salt Lake City, who is representing the Free Speech Coalition in the lawsuit challenging the do-not-e-mail rule. Mooney said that the e-mail restriction also is pre-empted by federal law, in this case the CanSpam Act, which leaves to Congress the issue of dealing with unwanted e-mail, or “spam.” It also violates the dormant commerce clause, which, he said, holds that states are not allowed to regulate commerce that is outside their purview. Mooney also defended the adult entertainment industry, saying that “Merchants in the adult industry don’t want their ads going to minors. It doesn’t help them to do that. That’s not where their customer base is,” he said. “The Internet is a dangerous place-but the best way to protect children is: Parents have to supervise what their kids are doing on the Internet.”

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