September 8, 2006 2:18 PM PDT

Police blotter: Cops raid Usenet provider over porn

"Police blotter" is a weekly CNET News.com report on the intersection of technology and the law.

What: An Internet service provider files a civil rights lawsuit after being raided by Pennsylvania police in January 2004.

When: U.S. District Judge Mary McLaughlin in the eastern district of Pennsylvania rules on August 30.

Outcome: A partial victory for both sides, with the lawsuit proceeding but some of the company's claims rejected.

What happened, according to court documents and news reports:

Voicenet Communications and subsidiary Omni Telecom were raided in January 2004 as part of an Bucks County, Pa., investigation into child pornography. During the raid, servers and other computer hardware were, according to the companies, "illegally seized" and business operations were substantially impaired.

The servers included data distributed through Usenet, a sprawling and decentralized collection of discussion groups called newsgroups. Discussion topics include everything from soc.history to rec.aviation, sci.nanotech, and alt.sex.exhibitionism.

Some newsgroups feature sexual discussions and a few include erotic photographs and videos. Because the volume of daily Usenet posts is far too vast for any human to read, ISPs are almost never aware of the contents of individual messages.

Voicenet and Omni Telecom claim that the raid went too far--akin to the police raiding a phone company and hauling away its switches and networks as part of an investigation into prank phone calls. Their civil rights lawsuit claimed violations of federal law, state law, and--because their customers were precluded from continuing in discussions--the First Amendment.

The raid was closely watched by other Internet and Usenet providers at the time, because of the nature of Usenet: A post by any user is automatically distributed to thousands of servers at corporations, ISPs, and universities. That means, in other words, if one Usenet provider is liable for illegal content on its servers that it doesn't even know exists, any provider could be potentially liable as well.

In her order last week, U.S. District Judge Mary McLaughlin permitted the case to go forward but with some caveats. She sided with Voicenet on some points and the Bucks County district attorney on others.

Excerpt from Judge McLaughlin's opinion:

The plaintiffs, Usenet newsreader and Internet service providers, have sued several Commonwealth and local law enforcement officials under (federal civil rights laws) for violations of their constitutional and statutory rights in connection with the execution of a search warrant on the plaintiffs' premises on January 21, 2004.

The defendants have moved to dismiss counts II through VI of the complaint, which allege deprivations of rights under the Communications Decency Act, the Electronic Communications Privacy Act, Pennsylvania's Internet Child Pornography Law, the Commonwealth Attorneys Act, and the Fourth and Fourteenth Amendments...The defendants have not moved to dismiss count I, for deprivation of freedom of speech under the First and Fourteenth Amendments, or count VIII, for violation of the Commerce Clause. These claims go forward...

The Court will grant the defendants' motion in part, and deny it in part. Specifically, the Court will dismiss the plaintiffs' due process claims based on alleged violations of the ICPL and the Commonwealth Attorneys Act. The Court will also dismiss the plaintiffs' ECPA claim. The CDA claim may go forward, but only to the extent that the plaintiffs seek declaratory or injunctive relief; the defendants are entitled to qualified immunity from damages because the plaintiffs' rights under the CDA were not clearly established at the time of the alleged violation. The Fourth Amendment claim may go forward because it is too early for the Court to determine whether all of the defendants reasonably relied on the search warrant in question.

The CDA provides, in relevant part: "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." The CDA further provides: "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."

In count II of the complaint, the plaintiffs allege that the defendants violated their rights under the CDA by enforcing against them...a state statute that criminalizes the knowing distribution and possession of child pornography. The defendants have moved to dismiss count II on the grounds that: 1) the CDA does not confer an enforceable right, privilege, or immunity...and 2) to the extent that the CDA does confer an enforceable right, it provides immunity from only civil, not criminal, liability.

Despite the defendants' arguments, the Court is persuaded that the plaintiffs have stated a...claim based on a violation of their rights under the CDA. The Court finds that all of the defendants are entitled to qualified immunity from money damages, however, because the plaintiffs' rights were not clearly established at the time of the actions giving rise to this litigation.

See more CNET content tagged:
Usenet, plaintiff, Pennsylvania, Police Blotter, defendant

 

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