Seventh Circuit Rejects ISP Liability in Video Voyeurism Case

The plaintiffs in this case were members of several collegiate sports teams who, without their knowledge or consent, were taped by cameras hidden in locker rooms and other facilities. The footage was packaged and sold on video tapes over the web by unknown individuals and organizations, under such titles as “Voyeur Time” and “Between the Lockers.”Plaintiffs’ claims against the sellers failed after these persons could not be located or served; the plaintiffs proceeded, however, with claims against the entities that had provided the sellers with internet access and web-hosting services. Citing two provisions of the Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. §§ 2511 and 2520, providing civil liability for any person who intentionally intercepts any oral communication, the plaintiffs claimed that the defendants had aided and abetted the sellers in their illegal interception of the audio tracks on the tapes. The plaintiffs also raised several other related claims against the defendants.

The Seventh Circuit affirmed the trial court’s 12(b)(6) dismissal on alternate grounds, holding that the ECPA neither expressly nor implicitly created secondary liability for internet service providers (“ISPs”).

The plaintiffs’ claim of “culpable assistance to a wrongdoer” also failed because there was no evidence that the defendants had either reason to suspect the sellers’ illegal activities or a “desire to promote the wrongful venture’s success.” An ISP, the court held, “like a delivery service or phone company, is an intermediary and normally is indifferent to the content of what it transmits.”

Describing server space and bandwidth as “legal commodities” with overwhelmingly “socially productive” uses, the court further rejected the plaintiffs’ invocation of “public nuisance” doctrine. In addition, the court denied plaintiffs’ claim that the defendants had “negligently entrusted a chattel” to the sellers, finding that only services and not chattels were provided by the ISPs, who in any case had no duty to protect third parties under relevant state and common law.

In dicta, the court weighed in on the ongoing debate over the proper reading of 47 U.S.C. § 230(c)—the “Good Samaritan” clause of the Communications Decency Act of 1996, which the defendants had raised as an affirmative defense. (For a history of § 230(c) and its dominant interpretation, see Zeran v. AOL, 129 F.3d 327 (4th Cir. 1997)). The court argued that the clause should be read as “a definitional clause rather than as an immunity from liability.” According to the court, this reading would prevent the preemption by § 230(c) of state or common law doctrines—where they existed—that regulated ISPs as intermediaries or required them to protect third-party interests.

Doe v. GTE, No. 02-4323 (7th Cir. Oct. 21, 2003).

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