ISP Liability

[filteringfacts]

The following letter from Bruce Taylor of the National Law Center to Paul Cardin clarifies the situation regarding ISP liability:



National Law Center for Children and Families
                                  4103 Chain Bridge Road, Suite 410
                                     Fairfax, Virginia 22030-4105
                                   (703) 691-4626 (703) 691-4669 Fax


                                           July 16, 1997

Just after the Communications Decency Act of 1996 was enacted into law,
I outlined the various
            criminal liabilities attached to the knowing and illegal
traffic and transmissions of obscenity, child
            pornography; and indecency. See the attached NLC Memo on
Criminal Liability Under Federal
            Laws for Obscenity, Child Pornography, and Indecency.

            The CDA did not change Federal law regarding child porn and
hard-core obscenity violations, it
            merely clarified that use of a common carrier or any
facility or means of interstate or foreign
            commerce to transmit obscenity was prohibited under 18
U.S.C. ?? 1462, 1465, et al, including by
            use of computers and interactive computer services, as it is
for child pornography under 18 U.S.C.
            ?? 2252, 2252A et al.

            The CDA did grant ISPs the same immunity due to
telecommunications common carriers for
            indecency that was sent or displayed to minors, but this
special privilege for ISPs as to indecency is
            not part of prior or present obscenity or child pornography
statutes. There are no exceptions for
            child pornography, even for common carriers. However,
Congress in the CDA also extended

            'Good Samaritan" immunity from civil liability for
defamatory statements of others, by providing that  the ISP is not the
'Speaker" of the statement and providing civil immunity for voluntary
efforts to   restrict offensive materials, legal or not. See 47 U.S.C. ?
230(c), 110 Stat. 133, at 138. These civil    protections are still in
effect to protect ISPs and online services which take good faith steps
to block  pornography, even if those steps are not perfectly effective,
as recognized in Congress's  "Committee Report on the CDA" found at 1996
U.S.C.C.A.N. Leg. Hist.. 110 Stat. 200, at  201and 204.

            Thus, present federal law, including under the obscenity
provisions of the CDA that were not
            challenged and are still in effect, an ISP is not liable for
the defamatory statements of others that
            have not been adopted by the ISP in other newsgroups or web
sites, even though an ISP is
            criminally liable for the knowing transmission of obscenity
and child pornography on Usenet
            newsgroups or web sites over which the ISP has control. If
the ISPs remove, block or restrict
            availability of certain pornographic newsgroups or web
sites, they will be protected for their "Good
            Samaritan" efforts and this won't affect their protection
from civil liability for otherwise slanderous
            material by others in other newsgroups or sites.

            Bruce A. Taylor
            President & Chief Counsel