Patterico's Pontifications

3/31/2008

Fifth Circuit Hears MySpace Case

Filed under: Blogging Matters,Law — DRJ @ 1:42 pm

[Guest post by DRJ]

The Fifth Circuit Court of Appeals in New Orleans heard an appellate case today that pits internet freedom against protection of minors:

“The family of a teenage girl who says she was sexually assaulted by a 19-year-old man she met on MySpace.com asked a federal appeals court Monday to revive their lawsuit against the social networking Web site.

A federal judge dismissed the $30 million suit in February 2007, rejecting the family’s claim that MySpace has a legal duty to protect its young users from sexual predators.

U.S. District Judge Sam Sparks in Austin, Texas, also ruled that interactive computer services like MySpace are immune from such lawsuits under the Communications Decency Act of 1996.

On Monday, a three-judge panel of the 5th U.S. Circuit Court of Appeals in New Orleans heard arguments on the family’s bid to overturn Sparks’ rulings.”

The unidentified girl created a MySpace page when she was 13 but claimed she was 18. MySpace requires that users be at least 14. After corresponding for several weeks with a 19-year-old man she met through MySpace, they met in Travis County where he sexually assaulted her.

The parties’ positions were clear and succinct:

“A lawyer for MySpace and parent company News Corp., Harry Reasoner, told the 5th Circuit panel Monday that Congress enacted the 1996 law to promote the growth of the Internet and protect online companies from tort litigation.

Gregory Coleman, a lawyer for the girl’s family, said the law only gives MySpace a “limited shield” from liability. “It has a responsibility to (protect) children,” he said.

MySpace denies any wrongdoing, and says it warns members that its safety protections are not foolproof.”

I think Judge Sparks decided this case correctly but I’m sure it’s hard for the parents of this girl to accept.

— DRJ

27 Responses to “Fifth Circuit Hears MySpace Case”

  1. It is clear that MySpace should have checked this child’s age using that child’s unforgable proof of age identity card.

    Oh, wait. There’s no way for MySpace to know her actual age? There’s nothing MySpace could do about this incident at all?

    SPQR (26be8b)

  2. Enh. If they hadn’t sued for the amount that they had, I’d have more sympathy (for the parents… I have sympathy for the girl.) What is this country coming to when the parents of child victimized by a brutal predator can’t immediately turn around and sue an innocent third party for thirty mil or so? Think of all the good that money would do to their consciences for the guilt they (hopefully) feel about their own lapses in responsibility!

    jdub (ca6e17)

  3. Incidentally, not being a lawyer:
    Does anyone know of any pre-internet precedent for such an action? Specifically in the telecom context?
    Has anyone ever sued (and were they successful) the phone company, say, for allowing people to communicate in a fashion leading to a like outcome?
    Or the Postal Service?

    jdub (ca6e17)

  4. any parent that doesn’t actively track their kids’ internet activities (all sorts of “snooping” software out there) or has the computer in a shared area of the house (like the kitchen or family room) then that person is failing at basic parenting.

    But then again, with this lawsuit, it looks like these this set of egg-sperm donors are beyond feeling embarrassed by exposing themselves to well-deserved public humiliation.

    Darleen (187edc)

  5. oops … should be “or doesn’t have the computer”

    Darleen (187edc)

  6. I do feel badly for the parents but on the other hand, it is absolutely foolishness for parents to not continually track their kids’ internet usage – and especially myspace and facebook.

    One can’t plead ignorance. Its a pain in the neck to have one more thing to be responsible for, like monitoring internet histories, but, uh, I think that sort’ve comes with the territory of this job called parenting.

    …and someone explain exactly how $30 mil would undue the heartbreaking damage already done?

    Dana (fba430)

  7. The opinion is here. There were telephone conversations after the MySpace “introduction”. That’s how they arranged their date.

    This case is not all that bad, even if the sperm donors thought they won the lottery. I have defended a case where the sperm donors actually pimped out their thirteen-year old daughter to my client.

    nk (34c5da)

  8. It’s an excessive dollar amount and the ruling makes sense… I guess. But it’s really hard to regulate kids’ interests even if the family computer is placed in a common area.

    MySpace caters to children. Congress enacted a law to protect business interests at a time when this particular venture wasn’t even a blip on anyone’s radar. MySpace just isn’t safe.

    Vermont Neighbor (e7ed47)

  9. “But it’s really hard to regulate kids’ interests even if the family computer is placed in a common area.”

    Everything about parenting is really hard. But you do what you have to. And in this day and age, parents really have to do this. The wrath of an incensed teenager pales so much in comparison to the potentially tragic outcomes of a pervert getting ahold of one’s chid, or a teenager rondeveauxing with an unknown character.

    Too many parents are afraid of the hard work and only look at the short term (incensed teenagers) consequences instead of the long term (their teenagers remain safely unscathed).

    Dana (fba430)

  10. if the so called parents had put a fraction of this effort into monitoring their child and raising her right, they wouldn’t be in this situation now.

    redc1c4 (a877b7)

  11. Dana, no doubt. I was thinking that while supervising and implementing every precaution, you still have to let kids go out, visit friends, hit the library. Maybe libraries are set up so MySpace isn’t accessible.

    I’m pro-business but things have changed since ’96 when that law was enacted (specifically to ‘promote the growth of the Internet and protect online companies from tort litigation’).

    Vermont Neighbor (e7ed47)

  12. It’s hard for parents who work to supervise their kids when the older ones are often home alone after school. I think that’s when a lot of this happens.

    DRJ (a431ca)

  13. Vermont Neighbor – you are so right, parents cannot be with them 24/7. Every parent has a judgement call to make as when they believe their children are responsible with regard to this. I know far more who assumed they were, when they really weren’t.

    This link provides further information on the Delteting Online Predators Act of 2006 which addresses the public libraries and myspace questions. (Although, in reading through some other sites, it would appear some libraries do have filtering devices, some don’t, and the ALA is ardently against any sort of, what they perceive anyway, censorship. Its a tad confusing).

    http://thomas.loc.gov/cgi-bin/query/D?c109:3./temp/~c109bmH8Gg::

    #12, if parents are uneasy, modems easily unplug and can be put away until a parent is home.

    Dana (fba430)

  14. Vermont

    It may be difficult, but what is more difficult for a lot of adults with children is that fact they may have to do something that makes the kids “mad.”

    The mark of a parent is a responsible adult who can listen to their child scream “I hate you, I wish I had never been born!” without dissolving into a big puddle of goo.

    Darleen (187edc)

  15. Where I grew up (Concord MA) they closed down the video-game and pinball parlor in the early 1980s. I understood that that was because this location was where innocent young people met up with the bad element and were corrupted. I don’t believe anyone thought of suing the establishment for letting in bad people, however, or for allowing 13-year-olds and 19-year-olds to mingle.

    DWPittelli (2e1b8e)

  16. Unfortunately, kids lie and get themselves into trouble. It doesn’t take a MyFace. It can happen anytime and anywhere, for instance—the local mall.

    Are shopping malls held responsible?

    Miss Havisham (970c40)

  17. #12, if parents are uneasy, modems easily unplug and can be put away until a parent is home.

    Or be really sneaky and edit the hosts file to direct myspace etc. to 127.0.0.1

    Taltos (4dc0e8)

  18. Dana,

    It’s true that modems can be disconnected, but the internet is more important to kids today for legitimate reasons like homework assignments, joint projects, and research. Much of our kids’ middle and high school homework was based on reading assignments only available through the school’s website.

    Taltos,

    I’m not that smart.

    DRJ (a431ca)

  19. If you think blocking is the answer, consider blocking Miss Bimbo. It’s designed for 9 and up.

    DRJ (a431ca)

  20. I think I’m a little bit younger than most folks here, so I can report from the other side….

    The internet was my social group. I grew up in an area where my sister’s grade was the biggest in ages– all 65 people.

    I had a slight habit of stuttering when my brain goes faster than my mouth, I was heavy-set and I was light-years smarter than anyone else in my grade. (Not bragging—based off of standardized tests.)

    Geek to the major, in other words.

    So when I went home after school and after I did my chores, I found folks who I could have intelligent conversations with, or do other things that got my brain going.

    Ended up joining a Star Trek text-based RPG.

    I can still remember my mom or dad popping over to the computer, regularly, and checking what I was up to.
    They learned FAR more about Cardassian culture than any person should be forced to put up with. ;^)

    They also made dang sure that I never told where exactly I was– “Washington” was the most exact– and that I used my nickname only. Most of the time, I went by my character’s name anyways.

    When I have kids, if I let them onto a MySpace equivalent, they will ONLY use nicknames and only give state-level locations, or they WILL get the fear of God– and also have me shadow their every move for the next six months.

    Foxfier (74f1c8)

  21. Parents may not be able to track everything their kid does, but they can teach their children to be skeptical of what comes done the intertubez, just like they teach children not to get into the car of a stranger driving down the street. And when that lesson fails, no one thinks of suing the municipality for letting a molester drive down the street. Or at least, no one used to think of suing. Nowadays, who knows?

    kishnevi (8731ef)

  22. They didn’t sue because that wasn’t done then, but doesn’t each generation distrust new-fangled contraptions? I’m sure my grandparents thought cars were inherently dangerous and unnecessary until they got used to them.

    DRJ (a431ca)

  23. The case was first filed in New York City but then tranferred to Texas. The rule of decision was Texas law. It might have come out differently had it stayed in New York.

    nk (34c5da)

  24. DRJ, I don’t disagree re the homework situation but I do think too many parents are clueless about what seriously hardcore crap is available to typically curious kids. Its a gamble, some or willing to take a risk, some are not.

    Dana (fba430)

  25. NK – Why do you think it might be different? I picture Texas law as more parochial than New York law.

    Dana – There are so many variables. Some parents may be clueless, others permissive, some trust their kids and some don’t. To me, this is similar to the obscenity cases. There’s a certain amount of stuff that goes with living in society but we draw the line at obscenity. The problem is finding where to draw the line. My feeling is the internet will someday have to deal with similar limits, and I’m just glad I won’t be the one to decide what they are.

    DRJ (a431ca)

  26. DRJ – I’ve spoken with a number of parents whose children attend the the school where I work and I’m always surprised at how clueless they are regarding the plethora of not good internet sites their kids can get to. Some just want to remain willfully ignorant, some are simply naive or haven’t taken the time to find out for themselves. As far as drawing the line, I always felt that was part and parcel of being an attentive parent.

    I do believe the internet will eventual have to rebalance periodically. Interestingly, I was reading about a public library in Denver where a patron was looking at some hardcore pornography. The other patrons on either side of him complained to the clerks. The clerks then offered the one viewing the pornography a privacy screen to insert on the monitor which would then prevent anyone not directly in front the monitor from viewing the material.

    Dana (fba430)

  27. I dunno, guys. While no lawyer, and not American to boot, it seems to me that there may be two conflicting areas here. When they said the man ‘allegedly’ (allegedly! that means it was not yet proven in court, right?) sexually assaulted her, well, what the heck did she think was gonna happen? Or was it they had a great deal of fun boiking each other, and then someone got wind of it, and he’s in trouble for statutory rape?

    I’m doing research on identity management. The enterprise version, but the principles remain the same. How do you authenticate and verify a user? It would seem to me that government has to be involved in it at some level, but libertarians would go ape-crazy over the idea of government ID for everyone. If it was voluntary, then would children be enrolled in it? The building of a national federated ID management system would oviously go a long way towards easing authentication headaches, but how about privacy issues? It’s a big and complex morass to wade through, especially when users aren’t paying for it.

    Exactly how is MySpace supposed to authenticate, anyways? OpenID? As if nobody ever lied to get a GMail account. Passport number? Social Security? Driver’s licence? If you’re between 13 and 18, in the absence of a national ID system, you’re SOL, right? (Not being in the USA, I’m not sure)

    Parental guidance and supervision in the end is the only safeguard possible, I think.

    Gregory (f7735e)


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