Doe v. Gte Corp.

• Decision Date: 21 October 2003
• Docket Number: No. 02-4323.,02-4323.
• Citation: 347 F.3d 655
• Parties: John DOE and other members of the football team at Illinois State University, et al., Plaintiffs-Appellants, v. GTE CORPORATION and Genuity Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

347 F.3d 655

John DOE and other members of the football team at Illinois State University, et al., Plaintiffs-Appellants, v. GTE CORPORATION and Genuity Inc., Defendants-Appellees.

No. 02-4323.

United States Court of Appeals, Seventh Circuit.

Argued September 24, 2003.

Decided October 21, 2003.

James R. Branit (argued), Bullaro, Carton & Stone, Chicago, IL, for Plaintiff-Appellant.

Steven G. Bradbury (argued), Kirlland & Ellis, Washington, DC, Timothy D. Elliott, Kirkland & Ellis, Washington, DC, for Defendants-Appellees.

Before BAUER, EASTERBROOK, and DIANE P. WOOD, Circuit Judges.

EASTERBROOK, Circuit Judge.

Someone secreted video cameras in the locker rooms, bathrooms, and showers of several sports teams. Tapes showing undressed players were compiled, given titles such as "Voyeur Time" and "Between the Lockers," and sold by entities calling themselves "Franco Productions," "Rodco," "Hidvidco—Atlas Video Release," and other names designed to conceal the persons actually responsible. All of this happened without the knowledge or consent of the people depicted. This suit, filed by football players at Illinois State University, wrestlers at Northwestern University, and varsity athletes from several other universities, named as defendants not only the persons and organizations that offered the tapes for sale (to which we refer collectively as "Franco"), plus college officials who had failed to detect the cameras (or prevent their installation), but also three corporations that provided Internet access and web hosting services to the sellers. The sellers either defaulted or were dismissed when they could not be located or served. The college officials prevailed on grounds of qualified immunity. The only remaining defendants are the informational intermediaries—large corporations, two-thirds of them solvent. The solvent defendants are GTE Corp. and Genuity Inc. (formerly known as GTE Internetworking), both of which are subsidiaries of Verizon Communications. (The third, PSInet, has been liquidated in bankruptcy. As plaintiffs did not file claims in that proceeding, PSInet has been discharged from any liability.) The district court dismissed all claims against them in reliance on 47 U.S.C. § 230(c). See 2000 U.S. Dist. LEXIS 8645, 2000 WL 816779 (N.D.Ill. June 22, 2000) (reiterating an earlier opinion dated April 20, 2000). After the judgment became final with the resolution or dismissal of all claims against all other defendants—the defaulting defendants were ordered to pay more than $500 million, see 2002 U.S. Dist. LEXIS 24032 (N.D.Ill. Nov. 25, 2002), though there is little prospect of collection—plaintiffs filed this appeal in order to continue their pursuit of the deep pockets.

Plaintiffs commenced this litigation in state court. Three defendants employed by public universities removed it to federal court under 28 U.S.C. § 1441(b), observing that the claim against them rests on 42 U.S.C. § 1983. Neither the parties nor the district judge noticed that removal requires the consent of all defendants. See Hanrick v. Hanrick, 153 U.S. 192, 14 S.Ct. 835, 38 L.Ed. 685 (1894); Torrence v. Shedd, 144 U.S. 527, 12 S.Ct. 726, 36 L.Ed.528 (1892); Phoenix Container, L.P. v. Sokoloff, 235 F.3d 352 (7th Cir.2000). This defect in the removal process could have justified a remand, but because 30 days passed without protest—and the problem does not imperil subject-matter jurisdiction—the case is in federal court to stay. See 28 U.S.C. § 1447(c).

What GTE and Genuity (collectively GTE) sought, and what the district court granted, is dismissal under Fed.R.Civ.P. 12(b)(6) for failure to state a claim on which relief may be granted. Yet the reason behind the district court's ruling is not failure to state a claim, but an affirmative defense provided by § 230(c). Affirmative defenses do not justify dismissal under Rule 12(b)(6); litigants need not try to plead around defenses. See Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980). Plaintiffs do not protest the district court's use of Rule 12(b)(6), however, perhaps because the decision could have been recast as a judgment on the pleadings under Rule 12(c). Nor do they seek better notice or a crack at discovery. Their only argument is that § 230(c) does not assist GTE. We turn to that question without fussing over procedural niceties to which the parties are indifferent.

According to the complaint, GTE provided web hosting services to sites such as "youngstuds.com" at which the hidden-camera videos were offered for sale. GTE did not create or distribute the tapes, which were sold by phone and through the mail as well as over the Internet. Although the complaint is not specific about just what GTE did, we may assume that GTE provided the usual package of services that enables someone to publish a web site over the Internet. This package has three principal components: (1) static IP (Internet protocol) addresses through which the web sites may be reached (a web host sometimes registers a domain name that corresponds to the IP address); (2) a high-speed physical connection through which communications pass between the Internet's transmission lines and the web sites; and (3) storage space on a server (a computer and hard disk that are always on) so that the content of the web sites can be accessed reliably. Advertisements about, and nude images from, the videos thus passed over GTE's network between Franco and its customers, and the data constituting the web site were stored on GTE's servers. Franco rather than GTE determined the contents of the site, though the complaint raises the possibility that GTE's staff gave Franco technical or artistic assistance in the creation and maintenance of its web site. Sales occurred directly between Franco and customers; communications may have been encrypted (most commercial transactions over the Internet are); and GTE did not earn revenues from sales of the tapes. Franco signed contracts with GTE promising not to use the web site to conduct illegal activities, infringe the rights of others, or distribute obscenity (a promise Franco broke). GTE thus had a contractual right to inspect each site and cut off any customer engaged in improper activity. We must assume that GTE did not exercise this right. Some domain administrators and other personnel maintaining GTE's servers and communications network may have realized the character of Franco's wares, but if so they did not alert anyone within GTE who had the authority to withdraw services. Managers were passive, and the complaint alleges that GTE has a policy of not censoring any hosted web site (that is, that GTE does not enforce the contractual commitments that Franco and other customers make).

The district court's order dismissing the complaint rests on 47 U.S.C. § 230(c), a part of the Communications Decency Act of 1996. This subsection provides:

(c) Protection for "Good Samaritan" blocking and screening of offensive material.

(1) Treatment of publisher or speaker. No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

(2) Civil liability. No provider or user of an interactive computer service shall be held liable on account of—(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

These provisions preempt contrary state law. "No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." 47 U.S.C. § 230(e)(3). But "[n]othing in this section shall be construed to limit the application of the Electronic Communications Privacy Act of 1986 or any of the amendments made by such Act, or any similar State law." 47 U.S.C. § 230(e)(4). We therefore start with the question whether plaintiffs have a claim under the Electronic Communications Privacy Act.

Plaintiffs rely on 18 U.S.C. § 2511 and § 2520, two provisions of that statute. Under § 2511(1), "any person who—(a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication; (b) intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication" faces civil liability. Section 2520(a) creates a damages remedy in favor of a person "whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter". Franco and confederates intercepted and disclosed oral communications (the tapes have audio as well as video tracks) and thus are liable under § 2511 and § 2520. But what could be the source of liability for a web host?

GTE did not intercept or disclose any communication; and though one could say that its network was a "device" to do so, plaintiffs do not make such an argument (which would be equally applicable to a phone company whose lines were used to spread gossip). Instead plaintiffs say that GTE is liable for aiding and abetting Franco. Yet nothing in the statute condemns assistants, as opposed to those who directly perpetrate the act. Normally federal courts refrain from creating secondary liability that is not specified by statute. See Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 114 S.Ct. 1439, 128 L.Ed.2d 119 (1994). Although a statute's structure may show that secondary liability has been established implicitly, see Boim...