Web Host Convicted of State Child Porn Crimes Despite 230–People v. Gourlay

By Eric Goldman

People v. Gourlay, 2009 WL 529216 (Mich. App. Ct. March 3, 2009)

Hot on the heels of the Cook County Sheriff’s publicity stunt filing against Craigslist, we get an interesting but complicated ruling exploring the application of 47 USC 230 to state criminal laws. The ruling tries to distinguish between ordinary web hosts and the defendant’s behavior, and in doing so finds an adequate basis to punish the defendant for his role in producing and disseminating child pornography.

This prosecution is part of the fallout from “Justinscam,” a tragic and well-documented story first told in exhaustive detail in this 2005 New York Times article (and its correction; see the NY Magazine for more about the NYT reporter’s unorthodox and controversial role in the story). According to the opinion, at age 13, Justin Berry got a webcam and eventually started broadcasting pornographic images of himself over the Internet. The defendant, Kenneth Gourlay, operated Chain Communications, the host of the Justinscam website. Gourlay then engaged in a dialogue with Berry that ultimately led to the creation of two additional websites, JFWY and mexicofriends. With respect to the crimes on appeal, I quote the relevant portion of the opinion:

“The prosecution of defendant was based on the theory that defendant, knowing that the purpose of the JFWY and mexicofriends websites was to allow Internet viewers to watch Berry engage in pornographic acts, was an active participant in the creation of the two websites. The…prosecution presented evidence (1) that defendant knew Berry hosted his own pornographic website, that Berry wished to take this website, the justinscam website, to the “next level,” and that the purpose of both the JFWY and mexicofriends websites was for others to see pornographic images of Berry, (2) that defendant hosted the two websites with Chain Communications and registered the domain names, (3) that defendant programmed the websites with the JAVA applet to create a near live streaming video image, (4) that defendant created the members-only sections for the websites, and (5) that defendant provided Berry with an advanced web camera when he visited Berry in Mexico. In addition, in online conversations, defendant told Berry that Berry should “milk the cam for all its worth,” that Berry “got the money shots right before” Berry turned the web cam off, and that some high resolution images of the “money shots” would be nice in the website’s members-only section.”

The Wikipedia entry on Justin Berry also discusses Gourlay’s repeated molestation of Berry. Based on this fact alone, Gourlay is destined for significant jailtime, and Gourlay’s involvement in Berry’s website is almost besides the point. Accordingly, personally I think the court’s discussion about the web hosting relationship is hugely colored by the criminal molestation, which makes it hard to disaggregate the court’s feelings if this was truly only a customer/vendor relationship.

Nevertheless, focusing only on the facts discussed by the court, Gourlay was more involved with Berry’s websites than a typical hosting vendor would be. Gourlay was allegedly providing custom software programming, hardware and recommendations about content decisions to Berry. In a footnote, the court says:

We note that, although defendant claims on appeal that he was merely providing standard web hosting duties to Berry for the JFWY and mexicofriends websites, there was no evidence presented at trial that many of the services defendant provided to Berry for the two websites, such as use of the applet, the creation of members-only pages, the technical assistance given to members of the two websites, and the registration of domain names, were provided for any of Berry’s other websites or to other clients of Chain Communications.

A jury ultimately convicted Gourlay of:

* two counts of child sexually abusive activity, MCL 750.145c(2)

* two counts of using a computer to communicate with another to commit child sexually abusive activity, MCL 750.145d(2)(f)

* two counts of distributing or promoting child sexually abusive material, MCL 750.145c(3)

* two counts of using a computer to communicate with another to commit distribution of child sexually abusive material, MCL 750.145d(2)(d)

* third-degree criminal sexual conduct (CSC), MCL 750.520d(1)(a), and

* soliciting a child for immoral purposes, MCL 750 .145a.

Although in this ruling the appellate court reversed the sentencing decision of the trial judge, Gourlay will be going to jail for a substantial period of time.

On appeal, Gourlay claims that the pornography-related offenses were preempted by 47 USC 230. The court says that some of the elements of a 230 defense are met; “There is no dispute that Berry was an information content provider for the JFWY and mexicofriends websites and that defendant, acting as Chain Communications, was an interactive computer service provider.”

The state argued that 230 didn’t apply because 230 covers only civil claims, not criminal claims. It’s true that 230(e)(1) excludes federal crimes from the immunity, but the plain language of the statute is clear that state criminal prosecutions are preempted. The court easily concludes that “Congress intended that no liability may be imposed under a state criminal law that is inconsistent with § 230.”

Nevertheless, the court concludes that the jury didn’t need to be instructed about 47 USC 230 (which, it sounds like, defense counsel at trial may not have been aware of). The crime of child sexually abusive activity requires the state “to prove that the defendant ‘persuade[d], induce[d], entice[d], coerce [d], cause[d], or knowingly allow[ed] a child to engage in a child sexually abusive activity for the purpose of producing any child sexually abusive material.'” The court says that a typical web host does not fulfill the scienter requirements:

An interactive computer service provider, by providing bandwidth, by publishing content that was generated by an information content provider’s use of the service’s general features and mechanisms, or by knowing of the nature of the published content, has not taken an intentional action directed toward a child to engage the child in child sexually abusive activity.

Therefore, the conviction could be consistent with 230. I didn’t exactly follow the court’s logic here, and I would be very interested to see how a jury would react in this case if told the foregoing quote. Inferentially, the court is saying that 230 does not apply because Gourlay as a vendor did more than provide bandwidth, publish content and know the contents being published.

With respect to the distribution count, the court lays out the prosecution’s burden: “(1) the defendant distributed or promoted child sexually abusive material, (2) the defendant knew the material was child sexually abusive material at the time of distribution or promotion, and (3) the defendant distributed or promoted the material with criminal intent.” The court says that some prosecutions under this statute would be preempted by 230 if the prosecution’s theory was that “an interactive computer service provider distributes child sexually abusive material with the intent that it be seen by others when, after receiving notice of the material, keeps the material available to be viewed or discovered by others.” In other words, failure to respond to a C&D/takedown notice would not convert the provider into a criminal distributor under 230.

Instead, based on the facts I quoted above, the court says that the prosecution’s theory is that “defendant, knowing that the purpose of the JFWY and mexicofriends websites was to allow Internet viewers to watch Berry engage in pornographic acts, was an active participant in the creation of the two websites.” Given that Gourlay defended on lack of knowledge grounds, not lack of involvement, the court said the conviction was consistent with 230.

This is a complicated case overlaying a tragic situation, but let me offer three implications:

* this case is a good reminder of the toxicity of child porn. As I teach in Cyberlaw class, if you run into child porn, you want to put it as far away from you as possible. Gourlay did not do that. Gourlay’s behavior would be more understandable if Gourlay didn’t know there was child porn taking place and thought Berry was over 18 (he claimed both). I suspect the jury found those assertions hard to believe. If Gourlay had any doubts about his beliefs, he should have done more–a lot more–to investigate them.

* Although I think it’s a close call, I think that on these facts and based on the precise wording of these statutes, I think the appellate court got it right that 230 doesn’t protect Gourlay for the creation and dissemination of child porn. I would be very troubled by that conclusion if Gourlay was purely a technology provider, but the court was clear to distinguish 230’s application to the provision of technology. What put Gourlay over the edge for me is the alleged facts that Gourlay appeared to become a co-venturer with Berry and took on a quasi-producer role, and apparently encouraged Berry to increase the pornographic content of the sites–all in the face of Berry being a young teen.

* While I think the court got it right, I’m also disappointed that the jury didn’t learn about 47 USC 230. I’m not sure it would have produced a different result, but I imagine a jury would find the fact that Congress provided strong immunities for some of Gourlay’s behavior potentially important. All of this reinforces the importance of finding lawyers who know the technology and the applicable law. I suspect many criminal defense lawyers have never heard of 47 USC 230, so it’s not surprising if the trial lawyer didn’t raise it, but a lawyer who knew that law might have been able to tilt the odds a little more in Gourlay’s favor.

Tom O’Toole is similarly unsure what to make of the case.