CYBERSPACE — Internet Service Providers are increasingly finding themselves on the receiving end of lawsuits demanding that they work filtering and content removal miracles. Plaintiffs and their attorneys contend that ISPs are not doing what they can to protect users from online predators and child molesters and that federal laws make the matters ever worse.According to pending lawsuits, ISPs have failed to keep an eye on websites and are only encouraged in their lack of policing by laws that grant them wide ranging impunity from legal challenges to the content that can be accessed via their services.

Some states, hoping to make an end run around spammers that promote adult products, are considering “do-not-email” lists that would require ISPs to disallow certain kinds of mail to specific addresses. While these plans are being developed, some legal eagles are pushing suits through the courts in the hopes of holding ISPs responsible for any material considered “harmful” that moves through their pipes.

Examples of cases currently winding their ways through the halls of justice include an Oregon woman who is suing Yahoo! because she claims the company promised to remove nude photos that she alleges were uploaded to profile by her ex-boyfriend who she says was pretending to be her. Cecilia Barnes, the 48-year-old plaintiff, is demanding $3 million as part of the settlement in the Barnes v. Yahoo case, which is currently on appeal in the 9th U.S. Circuit Court of Appeals. According to Barnes, the profile and photos led to strangers dropping in to her workplace in the hopes of hooking up for dates. When she complained to Yahoo!, she says that the company promised to intervene and remove the images – but did not do so until it learned of her suit.

Mary Osaka, a representative for Yahoo! says that “We encourage our users to submit content that may be in violation of our policies,” and that “content that is unlawful or threatening” is evaluated by the company. “Yahoo is committed to reviewing reports and taking appropriate action. And appropriate action could include the removal of such content or the deactivation of the user’s account.”

Attorney Thomas R. Rask, who is representing Barnes in her fight, is not convinced. “I think the ISPs have become the wild, wild West. People can do whatever they want under the guise of free speech. People are allowed to peddle whatever they want on the internet and ISPs just turned a blind eye.”

The Barnes v. Yahoo case was dismissed at the trial level because the Communications Decency Act states that ISPs are not accountable for contented posted by third parties. Rask’s strategy upon appeal is to argue liability, given that Yahoo! promised to remove the content but did not follow through, a line of argumentation allowed in Oregon courts. As far as Rask is concerned, “When Yahoo said to our client ‘We will stop this,’ and then failed to do so, they undertook an affirmative duty.”

Other legal complaints being directed toward ISPs relate to the criminal sexualization of minors, either related to predators inhabiting chat rooms designed for youths or by adults storing child porn images on websites, such as in the case of the infamous Candyman.

Unsurprisingly, attorneys disagree about the ultimate merit of the cases. Some, like John Morris of the Center for Democracy and Technology, believe that the very nature of the internet makes it impossible for ISPs to engage in the kind of exhaustive surveillance that would be required in order to satisfy the plaintiff’s complaints. “Architecturally,” he argues, “the internet is not suited to have that kind of traffic cop trying to protect kids.”

Like many others, Morris strongly supports what he feels to be the “most appropriate” method of protecting youths who get online: readily accessible filtering and other parental tools that permit adults to determine where children using their computers can surf. Further, Morris points out that ISPs are already providing these and other effective devices.

Naturally, not everyone agrees, and that includes attorney Adam Vovles, who represents the family of a young boy who was molested by a neighbor and whose photos were found on the infamous Candyman website. As Vovles sees it, ISPs such as Yahoo “violated federal child pornography laws by receiving, distributing, storing, and disseminating child pornography.”

Vovles supports stringent laws that hold ISPs accountable, insisting that “If one or more courts come down and hold ISPs liable for possessing child pornography, I think you’ll see a radical change in the way they do business… They’ll have a financial incentive to clean up their web sites.”

Currently, convincing courts to hold ISPs liable is not a winning battle. Along with lower court defeats, the U.S. Supreme Court has refused to hear a Florida case that had been dismissed by the state Supreme Court and hoped to find AOL guilty of aiding in the distribution of child pornography sold online by a school teacher.

While attorneys including Vovles may insist that the CDA does not mean what it says, others point to the 1997 Zeran v. American Online Inc as a landmark case establishing precisely that. In that case, a California man sued AOL after learning that his name and phone number were included in an advertisement listed on AOL that praised the Oklahoma City bombing. His contentions that AOL was negligent for not stopping the ad, the court ruled against him, citing the CDA for support of its decision.

Ironically, the “do-not-email” legislation currently under development in seven states would do nothing to protect minors from exploitation from molesters, since child pornography is already illegal in the United States, whereas adult pornography, which is legal, would be exclusively affected by the laws.

The Free Speech Coalition has filed suit in Utah to challenge the “do-not-email” list being proposed in that state. Jerome Mooney, a Salt Lake City attorney who represents the Free Speech Coalition in the lawsuit points out that the CanSpam Act already covers the issue of dealing with unwanted email.

Ultimately, Mooney echoes what many others have long said; that adults need to accept that “The internet is a dangerous place – but the best way to protect children is: Parents have to supervise what their kids are doing on the internet.”