Web Hosting

When it comes to illegal websites or illegal activity on a website, who’s to blame—the website owner, the web host, or the non-site owners who are posting that content? That was the question in the unique case of People vs. Gourlay, which was resolved in Michigan back in 2009. It set the precedent for such a conundrum, although it’s still a struggle today along with other hurdles like making the most of free hosting, conversions, and battling hackers. In this case, it centered on childhood pornography and it was decided that such instances weren’t safeguarded under the Communications Decency Act (CDA) 230 for immunity.

Protecting children from sexual abuse

The court looked closely at CDA 230 to see how the web hosting of illegal content might come into play. It’s not uncommon for hosting and server conundrums to play a role in lawsuits. However, in People vs. Gourlay, an underage male was publishing his own pornography (“starring” himself) in a variety of online videos. That caused little rumbling until the Defendant, Gourlary, happened upon the videos and came up with a plan. Gourlay contacted “The Minor” and told him he had a plan to take this kiddie porn “to the next level.”

 

The Plan 

Gourlay, seemingly more tech savvy than the Minor, registered a domain, set up hosting, and took care of the programming aspect. He made it possible for the Minor to live stream via a member’s only section (which of course cost more). Allegedly, Gourlay also coached the Minor on how to perform better for the camera—by the time charges were pressed, the duo had two popular sites. Ultimately, Gourlay was convicted for child pornography with three offenses, which he appealed by claiming he deserved a new trial since “an Internet service provider does not create pornography by providing bandwidth or by providing technical or artistic assistance.”

The court agreed, stating that Gourlay was perhaps an “interactive computer service provider” as defined by CDA 230. Had CDA 230 been properly carried out from the start, the court may have decided Gourlay was nothing but an “information content provider”. This would have made him undeserving of any immunity, since he was technically involved in the child porn creation. According to CDA 230, information content providers are someone “that is responsible, in whole or in part, for the creation or development of information provided through the internet.”

 

Gourlay’s Role 

Instead of strictly treating Gourlay like an information content provider, the court required Gourlay to demand the Minor conduct sexual acts, and actively/intentionally play a role of director. However, while he was convicted of participating in creating two kiddie porn websites, that didn’t fall into the CDA’s definition of computer service provider. However, what’s interesting is the court also discussed web hosting and child pornography prosecution along the way—wondering (on record) if such a case would allow for a CDA 230 defense.

What if a certain web host allowed child porn to be accessible even after it was brought to their attention? This doesn’t necessarily mean a web host that’s found to host user-generated porn won’t be allowed CDA 230 immunity. After all, Gourlay actively recruited the Minor for an illegal business, which is what led to conviction for “creating” the material. The activities Gourlay participated in from a tech perspective were standard for a host, as outlined by PC World, such as registering the domain. However, there was no evidence that Gourlay provided such hosting services to anyone else.

Unfortunately, only time will tell how hosting and illegal website activities will work under the CDA.

Category : Web Hosting, Web Security

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