Thursday, February 15, 2007

What do we want from MySpace?

Judge says MySpace isn't liable for alleged sexual assault on girl - Los Angeles Times

This is not the first time individuals have sued service providers. In fact, long before the Communications Decency Act was made effective in early 1997, there were two lines of cases. One that held the service providers liable for things that their users did and the one that said they weren't responsible for what their users did. The two most significant cases involved Compuserve and Prodigy.

The issue of liability tipped on the level of control the service provider had over the users. I often explain this using publisher liability law examples (which is where the cases first were developed). When an author writes a defamatory statement for which he or she can be sued, they are not the only ones who may be liable. Their publisher also can be sued (and often is, as the only deep pocket defendant the plaintiff can find). The can be sued and held liable because they have extensive control over the final published product. They often have editorial control, fact check statements and decide what is included or trashed from the book.

Holding them liable in this case makes sense. The book is equally theirs. The liability is too.

Now, look at others who have been sued in the past in under the publisher theories. Often these include booksellers, the local book store. (Lawyers sue everyone they can find in many cases to make sure that the person who is legally liable is included.)

But what kind of control does the local book store owner have over the published work? Do they edit it? Do they review it before ordering it to sell, checking for accuracy? Do they have their teams of lawyers review the work for libelous statements? No. Of course not. They are lucky if they read the cover notes. They have no power over the book,other than to decide whether to order it or not.

So the courts have looked to this and held that those in the chain of a libelous act cannot be held liable unless they have notice or control over the libelous act. It makes sense.

One of the early cases cited this as the line of reasoning they applied in holding the service provider not liable for what their users did. But the other case said that because the service provider reserved the right to delete inappropriate posts and had a terms of service policy, that they had the power to control the content, and could be held liable.

Had this line of reasoning continued, no service provider would ever monitor their channels, channles or site, since trying ot make it safer or more appropriate could be grounds for holding them liable. That conflicted with the public interest of making sites more responsible and having them implement safer practices. Punishing the ones who tried to do something didn't make sense.

The CDA included a limitation of liability section to make sure that the service providers who took actions to try to police their site would not be penalized. It provided that a service provider, unless it was in true control of the content (such as being the editor for the content, or sponsoring it), had no liability for what their users did.

When the US Supreme Ct struck down the CDA sections on censorship grounds later that year, this provision survived.

And it should.

We can't expect an service provider to be responsible for what their millions of users do.

Now, in this case, the issues are a bit broader. A young teen girl accessed MySpace. She was under their required minimum age. MySpace initially set the minimum age for their users at 16, and then educed it to fourteen. But this young teen was 13. MySpace has no age verification. There is no technology that would permit a site to verify the age of a minor, for a free site, that would work and be reasonable. (There are strict laws regarding preteens (under 13) having to get verifiable parental consent for any interactive use, but not for teens and older.)

I understand that she put down her age (and birthdate) claiming to be 18. At that time, MySpace had a technology in place to lock out underage preteens and young teens who put in their real age, and when they were denied the ability to register with MySpace, clicked the back button, becoming older in the next screen. That means she had to put 18 in the first time she tried to register.

At that time, also, MySpace had extensive safety tips available from each page on the site. I know. I wrote them for, the Internet safety charity. This warned everyone about the risks of offline meetings, people not being who they said they were and protecting yourself online. It linked back to our charity's website, as well. I also suspect that it is unlikely that this young teen didn't know that there were risks in meeting people from the Internet in real life. (I work with thousands of teens each month. They know the rules, but sadly tend to ignore them when the promise of a soul mate or cute 16-year-old boy is involved.)

She then agreed to meet someone offline that she first met on MySpace (based on reports). They went to a movie, had something to eat, and he molested her in a parking lot. (Also based on reports.)

This is unforgiveable, horrible and painful for me to hear. I gave up my law practice to help keep kids safe online. I donate my time running a charity of all unpaid volunteers devoted to this mission. I awaken every morning to this and fall asleep at night in front of my computer doing this.

I am so sorry for this young girl and her family. I understand their pain. I have held many young people in my arms after they were victimized by people the met from the Internet. Our new site, is devoted to helping.

But, bottomline, it's not a website's fault when a teen lies about their age (after being advised of the rules of the site and safety). It's not their fault when the teen arranges to meet someone in real life. It is certainly not their fault when an adult rapes a teen.

It's so easy to lash out, looking for the one entity to blame. It's easy to blame MySpace, or any other site where this could have happened. (I suspect that she also used an instant messaging program, and perhaps the phone to set up this meeting...but I wasn't aware that other tech companies or the phone company was sued.)

MySpace has become everyone's punching bag. For the first time parents can see the stupid things many of their kids are doing and posting online. For the first time future employers, college recruiters and law school deans can access information posted by their applicants after a drunken binge on a Saturday night. Or police can see which kids are hosting a beer party when their parents are out of town. And it's easy to make friends online, to meet people with similar interests (or at least those who say they do).

We are all who we want to be online.

And it's not all bad. It's also valuable. These new technologies allow teens to raise awareness and organize support for important issues, share expertise, learn about what others are doing, be creative, network with kids from their old camp, school or town.

So, when parents are looking for someone to blame, they need to look more closely in the mirror. Not bringing lawsuits against a website. But, if we can't make parents responsibel for their teens, what hope do we have?

I always get parents to raise their right hand at my presentations and repeat after me "I am the parent!" "Because I said so" "While you live under my roof..." (See a trend here?)

Attentive and involved parents can still face the pain of their teens and preteens acting out, being hurt and in some cases being killed or taking their own lives. But, they don't want MySpace raising their kids. That's their job.

The judge in this case realized this. The holding was good law and right.

Now, let's focus on the pain this young teen is facing. We need ot find ways ot support her and her family. We also need to find ways to stop thirteen year olds from lying about their age and meeting people offline.

That doesn't come from a comes from education, supervision and common sense.

So, what do I want from MySpace?

More help in spreading education and awareness, and their law enforcement cooperation, school cooperation and finding ways of helping parents understand how to keep their kids safe.

Since I first met the people at the top of MySpace, I realized that they sincerely care. That's what I want. I can't ask for more.

My 2 cents.


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