Legal Report February 2004
U.S. JUDICIAL DECISIONS
Cyberspace law. In a recent appellate decision, a case against an Internet service provider (ISP) was dismissed because, although a client of the ISP was involved in illegal activity over the Internet, the ISP did not participate in or profit from the activity, and the court ruled that the ISP was not negligent for failing to detect and prevent the illegal actions of that client.
Someone secretly videotaped the members of several sports teams in the locker room, bathrooms, and showers of the Illinois State University’s sports facility. The tapes were compiled and sold over the Internet under titles such as Voyeur Time and Between the Lockers. The video sellers operated under several names including Franco Productions.
Members of the Illinois State University football team, wrestlers from Northwestern University, and athletes from several other universities filed a joint lawsuit. The group sued Franco Productions, school officials who had failed to detect the cameras in the school facility, and the three corporations that provided Internet access and Web hosting to Franco. The lawsuit against Franco was dismissed when members of the organization could not be located. The action against the school was dismissed on grounds of qualified immunity. The only lawsuit remaining was against the ISP—GTE Corporation. (The other two corporations had gone bankrupt.)
According to the lawsuit, filed in the U.S. District Court for the Northern District of Illinois, GTE provided Web hosting services to sites such as “youngstuds.com” where the hidden camera videos were sold. GTE did not create or distribute the tapes. (The tapes were sold by phone and through the mail as well as over the Internet.) Advertisements about and images from the videos passed through GTE’s network between Franco and its customers. Also, Franco’s Web site was stored on GTE servers. However, GTE did not earn any revenue from the sale of the tapes.
Franco signed a contract with GTE promising not to use its Web site to conduct illegal activities, infringe on the rights of others, or distribute obscene materials. GTE had the right, according to the contract, to inspect each site it hosted and refuse service to anyone engaged in prohibited activity. However, the ISP did not exercise this right or withdraw its services. This lack of oversight, alleged the plaintiffs, should be viewed as negligence on the part of GTE.
The district court dismissed the plaintiffs’ complaint based on the Communications Decency Act of 1996. According to the act, no provider of an interactive computer service can be treated as the publisher or speaker of any information provided by another content provider. Thus, the act prevents ISPs from being held liable for such content. The plaintiffs appealed the decision.
The U.S. Court of Appeals for the Seventh Circuit upheld the lower court’s decision. In the written opinion of the case, the judges compared GTE’s role to that of the telephone company, whose wires were used to place orders with Franco, the lessor of Franco’s office space, or the shipper of the tapes to customers. “Landlord, phone company, delivery service, and Web host all could learn, at some cost, what Franco was doing with the services and who was potentially injured as a result; but state law does not require these providers to learn, or to act as Good Samaritans if they do.” (John Doe v. GTE Corporation and Genuity Inc., U.S. Court of Appeals for the Seventh Circuit, No. 02-4323, 2003)
Negligence. An appellate court has ruled that a college cannot be held responsible for an assault against a visitor on college grounds. The court also ruled that the person accused of committing the assault, an off-duty campus security officer, was not acting as a college employee when the incident occurred.
Carolyn Freeman, a high school student, attended a party at the invitation of her then-boyfriend, Scott Busch, at his dorm room at Simpson College. Freeman became inebriated, passed out, and was allegedly sexually assaulted by Busch and several of his friends. Freeman sued Simpson College and Busch claiming that the college owed her a duty of protection and that Busch, who was a student campus security officer, was acting as employee of the college when he assaulted her.
Both the college and Busch filed a motion for summary judgment—a ruling based on the facts of a case without a trial. The U.S. District Court for the Southern District of Iowa granted summary judgment for both parties. Freeman appealed the decision.
The U.S. Court of Appeals for the Eighth Circuit upheld the summary judgment. The court ruled that Freeman had no legal basis in asking the court to recognize a special relationship between a college and the guest of a student. In fact, the court noted that since the late 1970s, the courts have consistently ruled that there is no special relationship between a college and its students because a college is not an insurer of the safety of the students.
In addressing the argument that Busch should be held liable as an employee of the college, the court ruled that Busch was not on duty as a security officer that night. As a result, ruled the court, Busch did not owe her a legal duty as a university employee. Nor could the college be held responsible for negligent acts performed by employees while off duty. (Freeman v. Busch, U.S. Court of Appeals for the Eighth Circuit, No. 02-2650, 2003)
U.S. REGULATORY ISSUES
Aviation security. According to a recent report by the General Accounting Office (GAO), the Transportation Security Administration (TSA) has implemented numerous initiatives to enhance aviation security but has failed to collect information on the effectiveness of these initiatives. For example, the GAO found a paucity of testing or other data that measures the performance of screeners in detecting threat objects in passenger luggage.
However, the report notes that the TSA does have a plan to collect data on its programs. For example, the agency is developing a five-year performance plan to track several measures. In addition, the plan would provide for field testing of the Threat Image Projection System, which trains screeners to detect potentially dangerous items in luggage, and increased testing of screeners.
Border protection. The Department of Homeland Security (DHS) has implemented a program to check the visas of visitors entering the United States. In addition to reviewing travel documents, representatives of the Customs and Border Protection Office will also use an inkless scanner to read the fingerprints of each visitor holding a visa. The biographic and fingerprint data will be used to verify the identity of the visitor and will be compared against known watch lists.
U.S. CONGRESSIONAL LEGISLATION
First responders. Two bills (S. 930 and H.R. 3266), introduced by Sen. Jim Inhofe (R-OK) and Rep. Christopher Cox (R-CA) respectively, would provide funds and training to first responders.
S. 930 would establish a government program charged with helping states and localities to purchase equipment, conduct training, and develop exercises for first responders. The bill would also help develop, construct, or upgrade training facilities, develop response plans, and provide communications systems. The bill has been approved by the Senate Environment and Public Works Committee. To proceed, the bill must be taken up by the full Senate.
H.R. 3266 would authorize the DHS to make grants to first responders to purchase or upgrade equipment and conduct training exercises. The grants would be disseminated based on the severity or nature of the threat to the state or locality. The bill has 10 cosponsors and has been referred to the House Homeland Security Committee’s Subcommittee on Emergency Preparedness and Response; the House Transportation and Infrastructure Committee’s Subcommittee on Economic Development, Public Buildings, and Emergency Management; the House Judiciary Committee’s Subcommittee on Crime, Terrorism, and Homeland Security; and the House Energy and Commerce Committee’s Subcommittee on Health.
Security officers. A bill (S. 1743) that would allow employers to search the FBI database when doing background checks on security officer applicants has been approved by the Senate. The bill has been referred to the House Education and Workforce Committee’s Subcommittee on Employer-Employee Relations and the House Judiciary Committee.
S. 1743 would allow employers to get a background check on an individual applying for work as, or currently serving as, a private security officer. For existing employees, the check could be annual. Additional background checks could be obtained if the employer presented evidence that another check was warranted.
Under the bill, “security officer” is defined narrowly and does not include employees whose duties are primarily internal audit or credit functions; it also excludes employees of electronic monitoring companies who act as technicians and employees whose duties primarily involve the secure movement of prisoners.
Firearms. Two identical bills (H.R. 3614 and S. 1882), introduced by Rep. Peter King (D-FL) and Sen. Frank Lautenberg (D-NJ) respectively, would require that gun sellers notify the FBI if a prospective customer is listed on a terrorist watch list. This notification would be required regardless of whether the customer was eligible to purchase a firearm.
The FBI would be required to provide local law enforcement and the Department of Homeland Security with certain information about the customer such as name, date of birth, and other identifying information; the time and place of the attempted firearm purchase; and the type of weapon that the person attempted to buy.
H.R. 3614 has no cosponsors and has been referred to the House Judiciary Committee. S. 1882 has six cosponsors and has been referred to the Senate Judiciary Committee.
Security equipment. A bill (H.R. 3562) introduced by Rep. Bill Shuster (R-PA) would allow companies to obtain a tax credit for up to 30 percent of security-related expenses each year.
Under the bill, businesses could receive a tax credit of 20 percent for each qualified security device brought into service during the tax year. Qualified security devices would include access control systems, biometrics, CCTV, locks, computers and software to combat cyberterrorism, electronic alarm systems, asset tracking devices, air filtering systems, vehicle barricades, metal detectors, and any related components needed for installation.
The bill would also allow companies to claim a tax credit of up to 30 percent for each qualified security assessment conducted during the tax year. Security assessments would include any analysis designed to determine a company’s susceptibility to security threats, disaster response readiness, and continuity capabilities in case of a security emergency.
H.R. 3562 has no cosponsors and has been referred to the House Ways and Means Committee.
Terrorism. A bill (H.R. 3262) introduced by Rep. Richard Baker (R-LA) would allow cargo pilots and flight deck crew members to carry firearms and tasers to ward off a terrorist attack during flight.
H.R. 3262 has no cosponsors and has been referred to the House Transportation and Infrastructure Committee’s Subcommittee on Aviation.
Domestic violence. A bill (S. 1801) introduced by Sen. Patty Murray (D-WA) would allow businesses to claim a tax credit for expenses incurred in ensuring the safety of employees from domestic or sexual violence. The bill, which includes other government programs to combat domestic violence, would provide businesses with tax credits for providing assistance to employees victimized by domestic violence, providing legal or medical services, educating employees, or implementing human resource or personnel policies to protect employees from domestic violence.
The specific types of costs covered would include hiring new security personnel to address domestic violence issues, creating escort systems to help employees to their cars, or purchasing or installing new security equipment such as CCTV, lighting, access control, or ID systems.
S. 1801 has four cosponsors and has been referred to the Senate Finance Committee.
Bomb detection. A bill (S. 1927) introduced by Hillary Rodham Clinton (D-NY) would establish an award program to encourage the development of bomb scanning and detection technology. The bill would provide $20 million in federal grants to develop bomb detection technology that can examine the contents of a closed piece of luggage. To be eligible for the program, participants would have to demonstrate that their technology has a false positive rate of less than 10 percent and has a false negative rate of less than 2 percent. Installment of the technology could not be cost prohibitive.
S. 1927 has no cosponsors and has been referred to the Senate Commerce, Science, and Transportation Committee.
U.S. STATE LEGISLATION
Defamation. A new law in Idaho (formerly H.B. 269) protects those who report potentially dangerous events in schools from liability. Under the law, anyone who reported that a specific person has made a threat to commit violence on school grounds using a firearm, explosive, or deadly weapon could not be held liable if that threat turned out to be false. Exceptions are made for those who intentionally report such threats with knowledge that it is false or with reckless disregard for the truth.
This column should not be construed as legal or legislative advice.