Google Sued for Child Porn–Toback v. Google

By Eric Goldman

Toback v. Google, Inc., No. 06-007246 (NY Sup. Ct. complaint filed May 4, 2006)

Yet another legislator has seized the public microphone to grandstand about Internet threats. This time the lucky legislator is Jeffrey Toback, a member of the Nassau County Legislature, and the threat is that Google puts ads over third party child porn. Instead of passing an unconstitutional or ill-informed law (the typical legislative solution), this time the legislator has taken his battle to the courts, suing Google in a NY state court.

I haven’t seen the complaint, so it’s impossible to determine the cause of action (or Mr. Toback’s standing to bring the enforcement action) from the AP report. But it doesn’t matter–I’m 95% confident that any cause of action brought by Mr. Toback will be preempted by 47 USC 230–motion to dismiss, case over. For a great example of this, recall Doe v. Bates, where the court specifically rejected a civil lawsuit based on federal child porn laws when the content had been posted by third parties.

So this case seems DOA. My recommendations to Mr. Toback:

1) Enjoy your 15 minutes of AP stardom

2) Then, withdraw your complaint to avoid wasteful and futile litigation

3) Then, stick to doing what you do best, like passing unconstitutional and ill-informed laws rather than bringing ill-informed lawsuits

UPDATE: The plaintiffs’ press release.

UPDATE 2: I have now gotten a copy of the complaint. I can confirm that this lawsuit is just a publicity stunt, and a pathetic one at that. Among other evidence of cluelessness, the complaint uses a wacky definition of “child pornography” (defined as “repulsive material that is illegal to distribute to children”) that no knowledgeable lawyer would use. Further, by coopting such a baggage-laden term, the complaint (and associated press material) misdirects just about everyone who doesn’t read the complaint closely.

Further, consistent with its status as a press release rather than a serious legal document, the complaint takes numerous gratuitous shots at Google, including swipes for doing business in China and using user data to target ads.

As for the legal merits, the complaint makes an argument that Google is a mall owner and its advertisers are its tenants, and therefore Google has the same legal duties to police tenants as landlords do. I’m not making this up. It appears that the drafters don’t understand the difference between merchants and the media that distribute advertising for them. And they certainly don’t know 47 USC 230!

The complaint has 2 substantive causes of action: negligence and intentional infliction of emotional distress. I can’t figure out how the plaintiff has standing, and some of the things that the plaintiff complains about (such as the Protection of Children from Sexual Predators Act of 1998) do not, as far as I know, have any private cause of action. Otherwise, the entire complaint is predicated on liability for third party content, and thus is clearly covered by 47 USC 230.

Between the lack of standing, the lack of private causes of action, the 230 immunization, and the overall junkiness of this complaint, I think this lawsuit has zero chance of surviving a motion to dismiss. NONE. I hope the judge awards Google sanctions for wasting its time (and ours as well). I also hope Toback’s constituents remember this abuse of the legal process come re-election time. His constituents deserve better.

UPDATE 3: Alex E. awards “Dorkus Maximus” Toback his “Dork of the Month” award.