Shooting the Messenger: An Analysis of Theories of Criminal Liability Used against Adult-Themed Online Service Providers

INTRODUCTION Since the inception of the Internet, Congress has attempted to keep pace with technological developments in cyberspace, and the unique legal issues they spawn. Occasionally, lawmakers demonstrate a flash of competence, but U.S. law is infamous for its tendency to lag behind technology at a seemingly embarrassing pace. The potential criminal exposure facing of services is one of the areas that have received a startling lack of attention from legislators or the courts, despite the gargantuan stakes facing this industry, and the increasing popularity of social networking websites that allow third-party users to upload content. Intellectual property issues impacting Internet communications are being hashed out at a rapid pace, as evidenced by the recent filing of a slew of copyright infringement cases--particularly by the producers of adult-oriented content. (1) In fact, the adult entertainment industry has taken the lead in exploring the contours of user copyright infringement liability, (2) and use of fingerprinting technology designed to identify infringing material on the Internet. (3) One adult entertainment company is even suing its own members for copyright infringement, after tracking their alleged activity in illegally sharing content they had accessed as members. (4) Using these and other methods, the adult industry hopes to stamp out piracy by 2012. (5) Since the adult industry has historically taken the lead in pushing the development of new technology, (6) it is not surprising that legal disputes involving erotic material are driving the development of Internet law in general. Issues relating to the civil liability of so-called online service providers (OSPs), such as sites--based on user-generated material--are also percolating in the lower courts, with the Viacom v. YouTube case expected to be the one that reaches the U.S. Supreme Court. (7) But starkly absent from the current spate of litigation involving website operators' liability for activity is any substantial case law or legislation detailing the contours of potential criminal liability facing OSPs, based on the acts of third parties such as their customers or end users. Little has been written on the subject from an academic perspective, either. Exacerbating the lack of legal guidance on this issue are the incredibly harsh potential criminal sanctions facing any OSP targeted by state or federal law enforcement authorities under these circumstances. Criminal laws, including vague accomplice liability statutes, (8) can result in draconian legal penalties being imposed on website operators having only tangential involvement in the alleged illegal conduct. Such penalties can include years in prison for the responsible individuals, seizure of all business assets, and millions of dollars in fines. (9) Yet those companies that provide Internet-based services to third parties, such as hosts, search engines, tube sites, and dating sites, remain largely in the dark when it comes to their responsibilities and liabilities relating to compliance with criminal laws. As explained more fully below, those OSPs engaged in the controversial realm of providing access to adult-themed material fall into a 'gray' area of the law, and are potentially subject to targeting by law enforcement authorities based on the type of material uploaded by their customers--much more so than their mainstream OSP counterparts. Such disparate treatment of adult-oriented OSPs, based on the content of the speech flowing through their networks, raises substantial First Amendment concerns relating to viewpoint discrimination. (10) Irrespective of the eventual constitutional defenses that might ultimately be available to the OSP, the danger of prosecution persists. The potential for getting caught up in a criminal indictment based on the actions of third-party Internet users has historically been seen as a cost of doing business, even as the OSP industry continues to blossom in recent times with the infusion of social networking and user-generated content sites. …