Doe v. GTE Corp. – 7th Cir. 2003 Comprehensive Notes

Case Overview

• Parties involved

  • Plaintiffs–Appellants: John Doe (pseudonym) & other collegiate athletes (football, wrestling, varsity teams from multiple universities).

  • Defendants–Appellees:

  • Content creators/sellers: “Franco Productions,” “Rodco,” “Hidvidco—Atlas Video Release,” etc.

  • College officials (public-university employees).

  • Internet intermediaries: GTE Corp., Genuity Inc. (subsidiaries of Verizon), and PSINet (later liquidated).

• Citation & Court: Doe\;v.\;GTE\;Corp.,\;347\;F.3d\;655\;(7^{th}\;Cir.\;2003), Opinion by Circuit Judge Easterbrook.

• Key Holding: An ISP that merely hosts or transmits user content is not liable under the Electronic Communications Privacy Act (ECPA) or state-law theories for harmful material posted by a customer; §230(c) of the Communications Decency Act (CDA) shields the ISP.

Factual Background

• Secret video cameras installed in locker rooms, bathrooms & showers of several college teams.

• Resulting tapes compiled into titles such as “Voyeur Time” & “Between the Lockers.”

• Athletes were filmed while unclothed without knowledge or consent.

• Tapes marketed online/phone/mail by entities using aliases to obscure identities (collectively "Franco").

• GTE/Genuity supplied web-hosting package:

  • Static IP or domain name

  • High-speed physical connection (bandwidth)

  • Server storage with 24/7 access

  • Possible technical/artistic assistance

• Franco signed contracts promising not to engage in illegal or obscene activity; GTE allegedly never enforced those provisions (“policy of not censoring”).

Procedural History

• Suit began in state court; removed to federal court by three university employees relying on 28\;U.S.C.\;§1441(b) (federal-question via 42\;U.S.C.\;§1983).

• Removal defect (lack of unanimous consent) waived after 30-day deadline (§1447(c)).

• District Court (N.D. Ill., Chief Judge Charles P. Kocoras):

  • Dismissed Franco (unserved/default) – later default judgment >\$500\;million (little chance of collection).

  • College-official defendants won qualified immunity.

  • PSINet discharged in bankruptcy; plaintiffs filed no claim.

  • GTE/Genuity obtained Rule 12(b)(6) dismissal premised on CDA §230(c).

• Appeal limited to GTE/Genuity.

Statutory & Doctrinal Framework

• Electronic Communications Privacy Act (ECPA)

  • 18\;U.S.C.\;§2511 – prohibits intentional interception or use of a device to intercept oral/wire/electronic communications.

  • 18\;U.S.C.\;§2520 – private civil remedy for victims of such interception/disclosure.

• Communications Decency Act §230

  • Full §230(c) text quoted in opinion. Key pieces:

  • §230(c)(1) – ISP “shall not be treated as the publisher or speaker of content provided by another.”

  • §230(c)(2) – “Good-Samaritan” immunity for voluntary filtering.

  • Pre-emption clause §230(e)(3): State laws inconsistent with §230 are barred.

  • Savings clause §230(e)(4): Nothing limits application of ECPA or similar state law.

• Federal Civil Procedure principle: Affirmative defenses (like §230) normally cannot support a Rule 12(b)(6) dismissal; would require Rule 12(c) judgment on the pleadings (citing Gomez\;v.\;Toledo). Parties did not object to posture.

Issues on Appeal

1. Does ECPA impose aiding-and-abetting liability on a web host for a customer’s illegal interception?

2. Does CDA §230(c) foreclose state-law liability against an ISP that chooses not to filter or monitor customer content?

3. Do state-law doctrines (negligent entrustment, nuisance, contributory infringement, etc.) impose a duty on ISPs to protect third parties?

Court’s Analysis

1. ECPA Liability

• Statutory language is explicit: liability attaches to those who intercept, disclose, or use intercepted communications.

• No textual basis for secondary liability (aiding/abetting).

  • Analogy: Central\;Bank\;of\;Denver\;v.\;First\;Interstate (courts hesitant to create implied secondary liability).

• Even assuming ISP’s network is a “device,” plaintiffs did not plead that theory, and it would equally apply to phone companies.

• Mens rea problem: aiding-and-abetting requires intent to further wrongdoing; ISP is neutral intermediary, akin to a phone or delivery service.

• Conclusion: No ECPA claim against GTE.

2. CDA §230 Interpretation

• District court followed 4 circuits (4th, 10th, 3d, 9th) in reading §230(c)(1) as broad immunity even when the ISP does nothing to filter.

• Judge Easterbrook flags tension with the caption (“Good Samaritan”)—why incentivize doing nothing?

• Presents three interpretive possibilities:

  1. Broad-immunity view (district court): Subsection (c)(1) protects inaction; subsection (c)(2) protects good-faith filtering. Outcome: ISPs rationally choose cheapest path—no filtering.

  2. Definitional reading: (c)(1) merely clarifies who counts as “provider/user,” leaving liability questions to (c)(2). Would allow state laws to impose duties consistent with (c)(2).

  3. Publisher-only limitation: (c)(1) blocks claims that hinge on “publisher” status (e.g., defamation) but allows other state-law duties (e.g., negligent entrustment) that regulate ISPs qua intermediaries.

• Court does not resolve which reading is right because, under any view, plaintiffs lack an underlying state-law duty.

3. State-Law Theories

• Negligent Entrustment of a Chattel (§§308, 318 Rest. 2d Torts)

  • Requires entrusting a thing; GTE provided a service, not a chattel.

  • No authority extending doctrine to ISPs.

• Contributory Infringement (Hard Rock Café, Sony, Aimster)

  • Applies when product/service has “no or only slight” lawful use. Web hosting has vast lawful use ⇒ doctrine inapplicable.

• Public Nuisance

  • Service’s positive social utility defeats nuisance characterization.

• Comparative analogies employed by the Court:

  • Newspaper accepting escort-service ads ≠ accomplice to prostitution.

  • Verizon selling pagers/phones to drug dealers ≠ liable for drug crimes.

  • Postal Service shipping contraband ≠ liable for content of packages.

  • Seller of sugar to bootlegger hypo: only when product’s sole foreseeable use is illegal.

• No Dram-Shop-like statute or other special duty identified for web hosts.

Key Precedents & Citations Mentioned

• Zeran\;v.\;AOL,\;129\;F.3d\;327 (4th Cir. 1997)

• Ben\;Ezra\;Weinstein\;v.\;AOL,\;206\;F.3d\;980 (10th Cir. 2000)

• Green\;v.\;AOL,\;318\;F.3d\;465 (3d Cir. 2003)

• Batzel\;v.\;Smith,\;333\;F.3d\;1018 (9th Cir. 2003)

• Central\;Bank\;of\;Denver, Gomez\;v.\;Toledo, Bartnicki\;v.\;Vopper, Hard\;Rock\;Cafe, Sony, Aimster, Braun\;v.\;Soldier\;of\;Fortune.

Numerical & Procedural Details

• Default judgment against Franco entities: >500\,000\,000 dollars.

• Case No. on appeal: 02\text{–}4323; argued Sept.\;24,\;2003, decided Oct.\;21,\;2003.

• Removal defect: unanimous-consent rule ignored; waived after 30 days.

Policy, Ethical & Practical Implications

• Incentive Structure: If §230(c)(1) grants blanket immunity, ISPs bear 0 expected liability whether they filter or not ⇒ likely to “do nothing.”

• Free-speech tension: Mandating proactive monitoring may clash with First Amendment & technological feasibility.

• Reliance on “deep pockets”: Plaintiffs pursue solvent intermediaries when direct wrongdoers are judgment-proof or unlocatable.

• Judicial restraint: Courts avoid expanding liability absent explicit statutory command—preserves innovation & open architecture of Internet.

Court’s Final Disposition

• Judgment of the district court: AFFIRMED.

• No remand; no live claims remain against GTE/Genuity.

Study Takeaways

• §230 remains a formidable shield for ISPs even in non-speech, privacy-invasion contexts.

• Absence of explicit secondary-liability language in federal statutes usually forecloses aiding-and-abetting theories.

• Traditional tort doctrines are ill-suited to Internet intermediary scenarios unless legislatures craft specific duties.

• Procedural posture matters (Rule 12(b)(6) vs. 12(c)), but parties can waive objections, allowing courts to reach substantive statutes rapidly.

• Easterbrook’s dicta question breadth of §230 and foreshadow later circuit splits / legislative debates (e.g., FOSTA\text{/}SESTA amendments, 2018).