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As a result of the Web’s unprecedented traffic volume, Internet service providers (ISPs) have attempted to speed up their service via a technology known as proxy caching. This has resulted in their servers’ temporary storage of heavily frequented child pornography Web sites — something that has exposed the ISPs to liability for the possession and knowing distribution of child pornography. Such liability is inconsistent with American jurisprudence. In addition, there are more efficient ways to combat the proliferation of child pornography on the Internet. PROXY CACHING Proxy caching occurs when an ISP stores frequently requested Web pages on its server to facilitate quicker browsing. Web pages are selected for caching by an automatic request monitoring process conducted by the ISP. When multiple requests for the same Web page are sent to the ISP, the ISP proxy caches the requested Web page onto its server. Then, when subsequent requests for the same Web page are sent to the ISP, the ISP delivers the cached copy of the Web page from its server rather than passing the request on to the Web. This process reduces network traffic and improves the browsing speed for individuals. FEDERAL STATUTORY LAW When analyzing whether an ISP should be liable for cached child pornography, it is important to consider ISP liability under federal statutes. Recent litigation has focused on whether ISPs should be considered the publishers of defamatory statements written by third parties but cached on the ISPs’ servers. Publishers traditionally have been liable for defamatory statements in the materials they distribute only if they know or have reason to know about the defamatory content. See, e.g., Herbert v. Lando, 441 U.S. 153 (1979) (holding that to sue for defamation, the plaintiff must prove knowing or reckless falsehood in order to establish liability); New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (barring liability for publication of defamatory statements unless the plaintiff can prove the defendant acted knowingly or recklessly). The first two courts dealing with the issue of ISP liability for defamatory statements produced opposite results. Compare Cubby v. Compuserve, 776 F. Supp. 135 (S.D.N.Y. 1991) (holding that an ISP was not a publisher or distributor of defamatory statements on its system because they lacked the requisite control) with Stratton Oakmont Inc. v. Prodigy Servs. Co.,23 Media L. Rep 1794 (N.Y. Sup. Ct. 1995) (finding that an ISP was the publisher of defamatory statements because it exercised sufficient editorial control by using an automatic screening program, and because it held itself out as having editorial capabilities). To resolve the confusion in the law, and expressly to overrule Stratton Oakmont, the New York Supreme Court’s decision holding an ISP liable for defamatory statements contained on its server, the U.S. Congress enacted the Communications Decency Act (CDA), 47 U.S.C. � 230 (1994). Although various provisions of the CDA were struck down as unconstitutional, the provision related to ISP liability for publishing remains intact. Section 230 of the CDA provides 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 � No provider or user of an interactive computer service shall be liable on account of any action voluntarily taken in good faith to restrict access to or availability of objectionable material … No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section. … Although the CDA does not discuss whether an ISP would be liable for defamatory material of which it had actual knowledge, several courts have extended the CDA to bar all claims against ISPs for information originating with a third party. See, e.g., Zeran v. America Online, 129 F.3d 327 (4th Cir. 1997), cert. denied 118 S. Ct. 2341 (1998) (holding that the CDA “creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service. � “); Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998) (holding that the CDA precludes all causes of action against an ISP including situations where the ISP has an “active, even aggressive role in making available content prepared by others”). Similarly, the U.S. Congress enacted the Digital Millennium Copyright Act (DMCA), 17 U.S.C. � 512 (1994), which shields ISPs from liability for infringing material unless the ISP has notice of the infringing material and fails to remove it in a timely fashion. To provide consistent legal rules for ISPs, the logic underlying the CDA and DMCA should be extended to cached child pornography. Child pornography automatically cached on an ISP server is analogous to defamatory statements and copyrighted material. In each instance, the material is created and transmitted by a third person and in no way edited or controlled by the ISP. U.S. SUPREME COURT PRECEDENT In a situation analogous to that of an ISP, the U.S. Supreme Court rejected the imposition of strict liability for possession and distribution of obscene materials. In Smith v. California,361 U.S. 147 (1959), the U.S. Supreme Court struck down an ordinance imposing strict liability on book sellers for possession of obscene books. The ordinance at issue imposed liability on the bookseller regardless of whether the book seller had knowledge that the book contained obscene material. The Court reasoned that: Every bookseller would be placed under an obligation to make himself aware of the contents of every book in his shop. It would be altogether unreasonable to demand so near an approach to omniscience. And the bookseller’s burden would become the public’s burden, for by restricting him the public’s access to reading material would be restricted. If the contents of the bookshops and periodical stands were restricted to material of which their proprietors had made an inspection, they might be depleted indeed. Id. at 153 (internal citation and footnote omitted). ISPs are analogous to bookstore owners in that, while they know their servers contain cached information, they do not know the substance of that information. “Computers do not differentiate between �innocuous’ pictures and pictures that are pornographic. A piece of child pornography can be scanned and distributed by file server, bulletin board, on a web page or through e-mail just like any other computer file.” David J. Loundy, E-Law 4: “Computer Information Systems Law & System Operator Liability,” 21 Seattle U. L. Rev. 1075, 1127 (1998). In fact, ISPs present a stronger argument against liability than bookstore owners. While pictures of child pornography stand out when surrounded by books primarily containing text, pictures of child pornography stored on servers are coded numerically just like all other data. SeeDavid J. Abraham, Committee 703 Report, 80 J. Pat. & Trademark Off. Soc’y 631, 635 (1998) (describing how computers store data in numerical combinations). INEFFICIENT AND IMPRACTICAL Some argue that regardless of the amorphous form data takes when cached on an ISP’s server, ISPs remain in the best position to screen for content and stop the proliferation of child pornography on the Web. See“Emerging Markets Data File,” Nation, Sept. 16, 1998 (noting the existence of lobbies advocating ISP responsibility based on the fact that ISPs store third-party data prior to transmission to users). Regardless of who is in the best position to screen content on the Web, ISPs are not to blame for the proliferation of child pornography sites. Moreover, it is not the ISPs’ fault that their users frequently access these child pornography sites. While finding a party accountable for this unfortunate situation would assist in rectifying the child pornography problem, imposing liability on ISPs for the possession and distribution of child pornography in an attempt to regulate content on the Web is patently unfair and, as described above, not consistent with other areas of law. It would be nearly impossible, and presumably cost prohibitive, for ISPs to develop software to identify accurately and remove child pornography cached on their Web servers. SeeDawn A. Edick, “Regulation of Pornography on the Internet in the United States and the United Kingdom: A Comparative Analysis,” 21 B.C. Int’l & Comp. L. Rev. 437, 449 (1998). Further, if an ISP were under a legal duty to create expensive database search or filtering mechanisms, such costs would be passed on to the Web users in the form of increased-access prices. As a consequence, fewer people would be able to access the Web, thereby frustrating a fundamental goal: easy access for all. ISPs, though in the business of providing access to the Web, are not in nearly as good a position to deal with the problem as Internet regulatory groups such as the Internet Watch Foundation and Childnet International, which are dedicated specifically to locating and eliminating child pornography either independently or by notifying ISPs that child pornography exists on their servers. These regulatory groups usually can afford to spend considerable resources searching the Web for child pornography sites. Upon discovering these sites, the regulatory groups can pass the information to the ISP, which then can block access to the offending URLs. As a consequence, while the sites will not be removed from the Web, access to them will become exceedingly difficult. While this approach might not be ideal, it would be more reasonable, fair and efficient than imposing liability on ISPs. CONCLUSION Imposing liability on ISPs for the possession and distribution of child pornography cached on their Web servers is patently unfair, inconsistent with American jurisprudence and not an efficient method of addressing the widespread proliferation of child pornography on the Web. This is not to say that ISPs should be shielded from liability for child pornography that they know exists on their servers. The remaining issue is defining notice sufficient to assume knowledge on behalf of the ISP. Historically, courts have held that personal conversations, letters, e-mails or telephone calls are enough to put entities on notice of content that exists on their premises. See, e.g., Hellar v. Bianco, 244 P.2d 757, 759 (Cal. Ct. App. 1952) (indicating that a telephone call may be sufficient to put a bar owner on notice that a defamatory statement is on the premises). Regardless of how notice is defined, of paramount importance is that ISPs remove the child pornography. Once given adequate notice, ISPs should be obligated to remove the offensive material as quickly as possible. Craig S. Warkol is an attorney in New York. Aryeh H. Zarchan is an attorney at Sidley Austin, www.sidley.com, in New York. E-mail: [email protected]; [email protected].

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