Porn and the Liability of Internet Providers

by Jonathan Wallace and Mark Mangan

In late 1995, Bentley Ives, a manager for the U.S. Postal Service, had a great new idea for an Internet business: a service specializing in finding free smut. By December he had incorporated WebbWorld and, employing the help of two associates to handle the technical and administrative duties, set up the Netpics website. The three created no original content, but rather trolled the open channels of Internet newsgroups looking for pornographic pictures--pulling down nearly 6 thousand a day--and making them available to subscribers for $12 a month.

In June 1996 a California man tipped off the Fort Worth police and about debased porn peddlers in their midst who were distributing obscenity to the world. Perhaps a smut competitor himself or maybe just a worried citizen who didn't like the service he had subscribed to, the man gave the authorities the web address,, and a password to access it.

In mid February of 1997, the Fort Worth Vice Squad came looking for Ives. They searched his office seized his computer and arrested him for distributing obscenity and child pornography. After an eight month investigation the police found its fill of sexual images depicting groups, gays, lesbians, boys, girls, porn stars and senior citizens. They were looking for obscenity; however, among the nearly 1.5 million pictures that passed through the Netpics servers during this time, they also found some child pornography. After consulting a doctor at Cook Children's Medical Center they deemed four images to involve children under 15 and another of a girl under 11.

Looking around the sparse office, the Police demanded to know where the big computer equipment was. Ives led them to the new office in Dallas, where he had recently moved to share space with the Internet service which provided Webbworld with access to the Net through its fat T3 feed. With the cooperation of the Dallas police, they arrived at the second office and cleaned out the place--seizing all 16 servers and more than a thousand pieces of computer equipment. According to the Netpics principals in an exclusive interview with Gene Crick of the Texas Telecommunications Journal, the police showed no discretion, taking "routers, monitors, software, data records and everything... desk, chair... they even took the pencils...."

Ives was released on $52,500 bail after being arraigned on obscenity and child pornography charges. Between the two charges, one a midemeanor, the other a third degree felony, he faces up to 12 years in a state penitentary and up to $20,000 in fines. A couple months later the police caught up with the other two Netpics principals: Benjamin Brian Ellis and James Lewis Gurkin, III.

Gurkin is a 31 year old owner of a security guard business and handled the payroll, bookkeeping, and other administrative duties, receiving 25% of the profits. Ellis, a 27 year old computer consultant, was the technical genius behind the company and received 50% of the profits. Ellis set up the servers, configured the systems and developed what Lieutenant Reflogal of the Fort Worth Police called an "outstanding program"--a piece of code that trolled the Usenet groups that carried pornographic images, downloaded the pictures, then uploaded them to their webservers, placing them in particular categories depending where they were found.

Usenet is the name of a portion of the Internet which is essentially a conglomeration of electronic bulletin boards, most of which are unmoderated. Allowing users to anonymously post content, it represents a free-wheeling global discussion, broken up into thousands of different subjects. For those that want to discuss programming languages there are groups like comp.lang; for those that want to talk about cars there are groups like and; and for those that like to look at porn pictures, there's, rec.nude, etc.

There is no centralized control of Usenet. A message that is posted to, for instance, is sent from server to server around the world and copied to all those which subscribe to this newsgroup. Anyone with an Internet connection and a newsgroup reader can freely sift through any and all newsgroups to which his Internet provider subscribes.

With about 14 thousand newsgroups out there passing around terabytes of information daily, Ives decided to make a service that made finding porn in this global soup of information easy. Netpics also offered other services, such as email, web development and secure transaction services; however, the bread and butter for the company was smut. Plugging into an existing Internet Access Provider and configuring servers to subscribe to about 175 newsgroups devoted to porn, the tits, ass, penis, and vagina images started pouring in.

Evidently aware that there were laws against obscenity and child pornography, the Netpics people announced on the site that "we do make an effort to keep illegal pictures out of our selection." But with over ten thousand new pictures floating through these groups every day and as many as 6,000 being added to the site, they were clearly not able to see every porn picture that passed through their servers, hard as they may have tried. At any one time Netpics had about 70,000 pictures on its site, with images being sloughed off the servers every 3 to 4 days.

The charges of obscenity and child pornography require that the offender "knowingly and willingly" possesses or distributes the material. In contrast, the Netpics principals argue that they never created any of the images that existed on the newsgroups, that they did not subscribe to the groups that were known to carry child porn, and that they actively sifted through pictures 3-4 hours a day looking for potentially illegal material. In the interview with Gene Crick the Netpics collective said, "we offered only the same Usenet lists and contents available on thousands of Internet servers around the world. And while we featured adult-oriented newsgroups, we took exhaustive measures to eliminate any content we felt might even resemble child pornography."

Lieutenant Reflogal, formerly of the vice squad that conducted the investigation, says there was no doubt about what was on the newsgroups from which they were downloading, pointing out that one in particular had the words "teen fuck" in its address. "To me," he said, "'teen fuck' is pretty evident of what kind of pictures you're going to be getting." He added that the fact that they found child porn changed the nature of the charges brought, but not the vigor of the investigation: they were looking for obscenity.

Netpics trafficked in obscenity, by almost any local community standard. The kinds of images which course through the more hardcore Usenet forums involve extreme sexual situations, portraying anal sex, oral sex, explicit penetration, dildos, orgies, and all kinds of deviant sexual activity.

In 1973 the U.S. Supreme Court defined the term obscenity with a simple, subjective three-prong test, which said that the material must appeal to the prurient interest (turn you on), be patently offensive (gross you out), and be devoid of any scientific, artistic, literary, or political value--all this according to local community standards. Barring the local communities of 42nd Street, Manhattan and the neon-lit Las Vegas strips, it is a fair assumption to say that the more hardcore newsgroups on the Internet are obscene. So, in a sense, Sprint, MCI, AT&T, and all access providers which carry these newsgroups and allow these pictures to pass through their servers are as guilty as Ives.

The fundamental question arising from this case is, what is the liability of Internet Service Providers? In the distributed world of the Internet, who is responsible for illegal material that is anonymously posted and passed around from computer to computer in massive streams of neverending data? Obscenity and child pornography are not the only kinds of material that present such problems. If chapter after chapter of Grisham's latest novel started appearing on newsgroups, could each and every ISP which which carried these newsgroups be held liable for copyright infringement?

The Texas events must be viewed against a backdrop of current legal actions, threatened and real, against Internet service providers. Though Netpics was an attractive legal target for the prosecutor because it specialized in sex-related newsgroups, the acts its principals are accused of committing consist merely of having made these newsgroups available to users--the same "crime" committed by numerous other service providers, including large commercial ventures, small local companies, and universities.

The responsibility of an online information provider for illegal information transmitted across its service by a third party is still heavily debated, though it appeared to be pretty well settled by a 1980's case, Cubby v. Compuserve. The plaintiff claimed that he had been libelled by false statements posted to a Compuserve forum by an anonymous user and sued Compuserve. In dismissing the case against Compuserve, a federal judge reached back more than thirty years to a Supreme Court case involving a bookstore owner. In that case, Smith v. California, the high court had ruled that the owner of a bookstore could not be held responsible for knowing the contents of every book in the store. Thus, he could not be convicted for selling illegal material unless there was actual proof he knew it was there in his store. Similarly, the plaintiff could not hold Compuserve responsible for the libel without first putting them on notice that the offending statement was there.

Though now an ancient case in terms of the fast-moving world of the Internet, Cubby has been cited approvingly by most courts and commentators that have dealt with similar issues since, and there is little doubt that it has been generally adopted as the right rule for the Internet. All it actually requires is that a party--whether a prosecutor or a private plaintiff--complaining about material made available via an ISP put the service on notice of the objectionable material. If the service fails to act, the Cubby rule has been satisfied, and the complaining party is free to take action. If the complaining party fails to issue a warning, in any lawsuit or prosecution it later brings it will have the very tough--in many cases, insurmountable--task of showing that the defendant was personally aware of the objectionable material.

The Texas prosecutor may possibly make use of an exception to Cubby, which derives from another online case called Stratton Oakmont v. Prodigy. This much-criticized case also involved a lawsuit for libel as a result of remarks posted on the Prodigy service. While endorsing the Cubby case, the Prodigy judge came to a different conclusion. Though the plaintiff here had failed to put Prodigy on notice before bringing the lawsuit, the judge let the case continue anyway because Prodigy had advertised itself as a family-freindly service in which user messages were carefully screened for illegal content. The Prodigy decision has been criticized for an illogical, even anti-social conclusion: if you attempt to keep your service clean and fail, you are in a worse legal position than if you do absolutely nothing. Most commentators agree that Prodigy is bad law--but the prosecutor may argue that the Netpics defendants should be convicted because they claimed to screen out all child porn from their service and failed to do so.

Similar events involving ISP's are taking place on the international stage which are related to the Netpics case. Germany has just indicted a local Compuserve manager for distributing obscene material because Compuserve, as an ISP, grants access to the newsgroups. Here, the facts more clearly support the defendants than in the Netpics case, as the German government cannot even make the claim that Compuserve pushed this material or encouraged users to concentrate on it.

Gene Crick, who also sits on the board of Electronic Frontiers Austin, has been watching the Netpics case carefully. "Conviction in this case could shut down the Usenet; the images being prosecuted were also stored on other feed servers around the world. This means every Usenet provider could become an appealing target for political grandstanders and hungry tort lawyers," Crick says.

Shutting down porn operations are very visible, politically popular cases for righteous minded law enforcement agencies. In shutting down Netpics, the Fort Worth police acted with broad strokes that may have violated certain Fourth Amendment protections concerning proper search and seizure; they also seemed to have created some jurisdictional entanglements as they stepped into Dallas to make the arrest. As of now, the members of Netpics have not yet been indicted and the police have said they would not seek action against any of the subscribers. If they do decide to carry through and prosecute, this could become a seminal case. If not, the police have still achieved their real goal--shutting down the Netpics servers.