Section 230 Immunity -- Revisited

A while back, I did a post in which I explained that a federal statute 47 U.S. Code § 230(c)(1) – immunizes certain parties from liability based upon content they publish online.

This post is about a Michigan case in which a criminal defendant claimed his defense attorney was ineffective because he did not raise this statute at trial: People v. Gourlay, 2009 WL 519216 (Michigan Court of Appeals 2009). The defendant said his attorney essentially committed malpractice by not raising the statute, his theory being that the statute would have barred his conviction.

As I noted in my earlier post § 230(c)(1) says that ““[n]o 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.” An “information content provider” is a “person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet.” 47 U.S. Code § 230(f)(3). An “interactive computer service” is “any information service . . .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”. 47 U.S. Code § 230(f)(2).

The defendant – Kenneth Gourlay – was convicted of various crimes under Michigan law, including distributing child pornography. People v. Gourlay, supra. Here are the facts that led to the charges against him:

Justin Berry, at the age of 13, obtained a web camera, which he soon used to broadcast pornographic images of himself over the Internet. . . .

Defendant, who owned Chain Communications, a web hosting company, contacted Berry, informing Berry he was watching Berry over the Internet. Defendant and Berry began to communicate. . . . Berry [said] he wanted . . . . place his website with a web hosting company and wanted the website to have a members-only section. Defendant and Berry discussed different ideas for the new website. In 2002,

the new website . . .was created. . . . to allow Internet viewers to watch Berry engage in pornographic acts. Chain Communications hosted the site. Defendant registered the domain name, created a members-only section, and programmed the website with a JAVA applet, which provided a near live streaming image. According to Berry, defendant watched the images broadcasted over the website.

In . . . 2003 Berry moved into an apartment . . . with web cameras so his Internet viewers could watch him day and night. Berry discussed the apartment and the cameras with defendant. He [said] he was going to create a new website, the `mexicofriends’ website. The purpose . . . was to allow Internet viewers to watch Berry engage in pornographic acts. Chain Communications hosted the website, and defendant registered the domain name, created a members-only section, and programmed the website. . . .

People v. Gourlay, supra.

At trial, Gourlay’s attorney seems to have based his defense on Gourlay’s claims that he did not know Berry was broadcasting pornographic images of himself via the two sites and/or that he thought Berry was over 18. People v. Gourlay, supra. As I noted earlier, Gourlay appealed his conviction, arguing that the defense attorney should have raised the § 230(c)(1) immunity as a defense.

[Gourlay] argues that the jury should have been instructed that he could not be convicted of the pornography offenses unless it found he actually contributed to the creation of the child pornography. The jury also should have been instructed, defendant claims, that an Internet service provider does not create pornography by providing bandwidth or by providing technical or artistic assistance.

People v. Gourlay, supra.

In analyzing his argument, the Court of Appeals noted there was “no dispute” that Berry “was an information content provider” for the two sites and that Gourlay, “acting as Chain Communications, was an interactive computer service provider.” People v. Gourlay, supra. It then addressed the prosecution’s argument, which was that § 230(c)(1) “only provides immunity from civil liability.” People v. Gourlay, supra. The court held this argument failed because 47 U.S. Code § 230(e)(3) specifically says “no liability may be imposed under any State . . . law that is inconsistent with” 47 U.S. § 230. The court cited a dictionary which defines “any” as meansing “every; all” and therefore held that “the phrase `any State . . . law” includes civil and criminal laws.” People v. Gourlay. Since the Court of Appeals found Congress “intended that no liability may be imposed under a state criminal law that is inconsistent with § 230,” it rejected the prosecution’s argument and proceeded to consider the merits of Gourlay’s § 230(c)(1) claim.

The court noted that to convict a defendant of distributing child pornography in violation of Michigan law, the prosecution has to prove “(1) the defendant distributed . . . child sexually abusive material, (2) the defendant knew the material was child sexually abusive material at the time of distribution . . ., and (3) the defendant distributed . . . the material with criminal intent.” People v. Gourlay, supra (citing Michigan Compiled Laws § 750.145c(3)). The Court of Appeals noted that it could

imagine a prosecution for . . . § 750.145c(3) that would be inconsistent with § 230. Such a prosecution would be based on the theory that an interactive computer service provider distributes child sexually abusive material with the intent that it be seen by others when, after receiving notice of the material, keeps the material available to be viewed or discovered by others.

People v. Gourlay, supra. The court also noted, though, that the prosecution of Gourlay for distributing child pornography was not based on this theory. It was, instead, based

on the theory that defendant, knowing the purpose of the JFWY and mexicofriends websites was to allow Internet viewers to watch Berry engage in pornographic acts, was an active participant in the creation of the two websites. The prosecution produced substantial evidence. . . . (1) that defendant knew Berry hosted his own pornographic website, that Berry wished to take this website, the justinscam website, to the `next level,’ and that the purpose of both the JFWY and mexicofriends websites was for others to see pornographic images of Berry, (2) that defendant hosted the two websites with Chain Communications and registered the domain names, (3) that defendant programmed the websites . . . to create a near live streaming video image, (4) that defendant created the members-only sections for the websites, and (5) that defendant provided Berry with an advanced web camera . . . . In . . . online conversations, defendant told Berry that Berry . . . `got the money shots right before’ Berry turned the web cam off, and that some high resolution images of the `money shots’ would be nice in the website's members-only section. . . . Because the prosecution of defendant for distributing . . . child sexually abusive material. . . was based on defendant's active involvement in the creation of the JFWY and mexicofriends websites, . . . an instruction that [he] could not be convicted of [violating §] 750.145c(3) for providing bandwidth or for publishing material Berry created using the general services and mechanisms provided by Chain Communications was not to avoid a conviction that was inconsistent with § 230. Thus, counsel was not ineffective for failing to request a jury instruction on § 230. . . .

People v. Gourlay, supra. The court also noted that although Gourlay claimed on appeal that

he was merely providing standard web hosting duties to Berry for the JFWY and mexicofriends websites, there was no evidence presented at trial that many of the services defendant provided to Berry for the two websites, such as use of the applet, the creation of members-only pages, the technical assistance given to members of the two websites, and the registration of domain names, were provided for any of Berry's other websites or to other clients of Chain Communications.

People v. Gourlay, supra.

I think the Michigan Court of Appeals got it right when it held that § 230(c)(1) immunity applies to criminal as well as civil liability. It’s the only criminal case I can find in which § 230(c)(1) was even raised as a defense to criminal charges, but that might change, now.

I think the court was right for the reasons it gave – parsing the statute and finding that the language of § 230(e)(3) specifically says NO liability can be imposed under state law unless it’s consistent with the provisions of § 230. I also think the court’s conclusion in that regard is supported by the fact that another provision of § 230(e) -- § 230(e)(1) – says that nothing in § 230 “shall be construed to impair the enforcement of . . . any . . . Federal criminal statute.” It seems to me that if Congress had meant the same result to apply to prosecutions under state law, it would have said so.