5th Circuit Holds MySpace Not Responsible for User Misuse

Social Networking Web Site Sued over Sexual Assaults, Suicides

The 5th Circuit U.S. Court of Appeals ruled May 16, 2008 that a federal law shielded the Web site MySpace from liability for the sexual assault of a Texas girl who met the man who assaulted her via the popular social networking site.

According to the 5th Circuit’s opinion in Doe v. MySpace, 528 F.3d 413 (5th Circ. 2008) then 13-year-old “Julie Doe” lied about her age when registering for a MySpace account in summer 2005, saying she was 18, which enabled her to circumvent safety features the Web site has in place to protect underage users. MySpace requires users to be at least 14, and has automatic privacy settings for 14 and 15-year-old users which makes their full MySpace profile viewable only to users who are in their selected group of “friends.”

Nineteen-year-old Pete Solis contacted Doe via MySpace, the two exchanged personal information including their phone numbers, and when the two later met in person, Solis sexually assaulted Doe, the court opinion said. According to the Hays Free Press of Hays County, Texas, Solis was sentenced April 18, 2008 to 90 days in jail and a seven-year probation, during which time he must register as a sex offender.

Doe and her mother sued MySpace and its parent company News Corporation for $30 million in Texas state court in June 2006 for negligence, gross negligence, fraud, and misrepresentation, claiming that the Web site ignored concerns about sexual predators and, despite MySpace’s claims that the Web site was safe for underage users, it in fact “had no meaningful security measures or policies in place to effectively safeguard young underage MySpace users from being contacted by dangerous adult MySpace users.” After some jurisdictional wrangling, the suit was heard in federal district court for the District of Western Texas, which granted MySpace’s motion to dismiss on Feb. 13, 2007.

The 5th Circuit affirmed the district court’s ruling that MySpace is protected by the “Good Samaritan” provision of the federal Communications Decency Act (CDA), 47 U.S.C. section 230, a law which, according to the 5th Circuit’s opinion “provided broad immunity … to Web-based service providers for all claims stemming from their publication of information created by third parties.” Section 230(c)(1) of the CDA states: “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.”

According to the 5th Circuit opinion, the plaintiffs argued that section 230(c)(1) was inapplicable in their case because their claims were based on MySpace’s lack of safety and security measures, and thus “d[id] not implicate MySpace as a ‘publisher’ protected by the act.”

The Circuit court agreed with the reasoning of the lower court, which called Doe’s argument that the CDA should not apply “disingenuous,” because the basis for the argument was that if Doe and Solis had not been allowed to communicate and exchange personal information via MySpace, the sexual assault would never have occurred.

“No matter how artfully Plaintiffs seek to plead their claims, the Court views Plaintiffs’ claims as directed toward MySpace in its publishing, editorial, and/or screening capacities,” Judge Sam Sparks wrote for the district court in Doe v. MySpace, Inc., 474 F.Supp. 2d 843 (W.D. Tex. 2007).

The plaintiffs also argued that because MySpace “facilitates its members’ creation of personal profiles and chooses the information they will share with the public through an online questionnaire,” it does not qualify for immunity under the CDA because it is partially responsible for creating its users’ content.

In April 2008, the 9th Circuit cited similar reasoning when it denied immunity under the CDA to Roommates.com, a Web site that allows users to search for roommates while indicating preferences based on gender, sexual orientation, and familial status. According to the 9th Circuit in Fair Housing Council v. Roommates.com, 521 F.3d 1157 (9th Cir. 2008), Roommates.com had become an information content provider and thus responsible in part for creating discriminatory information on its Web site by actively soliciting specific types of discriminatory information in a questionnaire. (See “Federal Court Decisions Add Uncertainty to Internet Law” in the Spring 2008 issue of the Silha Bulletin for more on that decision.)

Ultimately, the 5th Circuit said that the plaintiffs were barred from making the argument that MySpace removed itself from CDA immunity by facilitating Julie Doe’s creation of her profile because they had not raised that argument in the lower court. However, the court said that the record did not support the Does’ claim because Julie Doe had admitted that she lied about her age when creating her MySpace profile and because she was personally responsible for exchanging personal information with Solis.

Teen Suicides Draw Lawsuits for MySpace, Scrutiny for Online Harassment

MySpace has also been targeted with lawsuits and scrutiny following teen suicides in California and Missouri.

On December 12, 2007, The Dallas Morning News reported on a lawsuit filed by the family of a 14-year-old Southern California girl who committed suicide after being sexually assaulted by a Texas man.

The Dallas Morning News reported that the lawsuit, filed in Texas, said online conversations between the 30-year-old man and the girl led to a face-to-face meeting and the sexual assault near her home in California.

According to the lawsuit, the man ended the relationship several months later, causing the girl to fall into “a deep depression as a result of the failed, despicable relationship fostered over MySpace.” The girl killed herself in July 2006, The Dallas Morning News reported.

According The Dallas Morning News, the man later pleaded guilty to traveling across state lines to have sex with a minor and was sentenced to nine years in federal prison. The lawsuit filed by the girl’s family, which claims that MySpace does not do enough to ensure the safety of underage users, seeks reimbursement for the parents’ medical and psychological counseling expenses, as well as punitive damages for mental anguish and emotional distress, The Dallas Morning News reported.

Missouri Suicide Leads to Federal Indictment in California

The high-profile suicide of a 13-year-old girl in Missouri led state lawmakers there to update laws against harassment, while the mother accused of taunting the girl, a neighbor, was indicted by a federal grand jury in California.

According to the indictment, which was issued in the U.S. District Court for the Central District of California on May 15, 2008, Lori Drew of O’Fallon, Mo., along with “co-conspirators,” created a MySpace account under the fictitious identity Josh Evans in fall 2006, which Drew used to contact, flirt with, and later reject and insult a young girl, identified in the indictment as M.T.M.

According to New York Times on May 16, 2008, M.T.M. was identified by her mother as Megan Meier, a former friend of Drew’s daughter who hanged herself in her home in October 2006. According to the indictment, after a few weeks of chatting, “Josh” announced in mid-October that he was moving away and told Meier that the world would be a better place without her in it.

The federal indictment, filed in California because MySpace is based in Hollywood, charges Drew with one count of conspiracy and three counts of accessing a computer without authorization and via interstate commerce to obtain information to inflict emotional distress. The indictment relies in part on 18 U.S.C. section 1030, a federal law against “fraud and related activity in connection with computers” which, according to the Los Angeles Times on May 16, is a federal statute “commonly used to go after computer hackers or crooked government employees.”

According to The New York Times, some experts were skeptical about whether the federal law could be used under the circumstances of Drew’s indictment.

Nancy Willard, executive director of the Center for Safe and Responsible Internet Use and Rebecca Lonergan, a law professor at the University of Southern California and a former federal prosecutor, both expressed doubts. “… I am not sure this statute technically covers the essence of the harm,” Lonergan said.

The Washington Post reported July 23 that in a motion to dismiss Drew filed with the U.S. District Court, she argued that if she is guilty as charged for violating the MySpace policy for “the wayward or misuse of a social network website,” then so are millions of Internet users every day.

The Associated Press (AP) reported May 19, 2008 that authorities in Missouri did not file charges against Drew following the suicide because there was no applicable state law.

On May 16, however, the Missouri State legislature passed a bill that updated a state law criminalizing harassment by removing a requirement that the communication be written or over the telephone.

The AP reported May 19 that under the bill, repeat offenders and anyone who is at least 21 years old could be charged with a felony and face up to four years in prison if they harass a minor. Other instances of harassment would remain a misdemeanor with penalties of up to a year in jail.

The bill also requires school officials to tell police about harassment and stalking on school grounds. And it expands state laws against stalking to cover “credible threats” not only against the victim, but also against family and household members and animals.

The AP reported that stalking is currently a misdemeanor in Missouri, but the bill would let someone be charged with a felony and face up to four years in prison for stalking more than once, making “credible threats,” violating a court protection order, or violating probation or parole by stalking.

According to the AP, Missouri Gov. Matt Blunt praised lawmakers’ efforts in a statement, saying “Social networking sites and technology have opened a new door for criminals and bullies to prey on their victims. These protections ensure that our laws now have the protections and penalties needed to safeguard Missourians from Internet harassment.”

– Patrick File
Silha Fellow and Bulletin Editor

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This page contains a single entry by cla published on October 14, 2009 1:13 PM.

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