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Is There Statutory Immunity?
Although there are no cases directly on point it is probable that schools will enjoy statutory immunity for harm if a student accesses material placed by a third party. This immunity was established through a section of the Computer Decency Act of 1996. 47 U.S.C. §230(c). Other sections of the Computer Decency Act were ruled unconstitutional, however, this section remains in force and has been upheld in a number of court cases.
"(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."
As to whether an education institution offering Internet access to its students is an "interactive computer service", the question is directly addressed by §230(e)(2):
"The term 'interactive computer service' means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions."
"(3) STATE LAW- Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. 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."
In sum, §230(c)(1) provides that an "interactive computer service" is not to be treated the same as a content provider; §230(e)(2) provides that an education institution offering Internet access is an interactive computer service; and §230(d)(3) provides that inconsistent state laws may not be used as a basis of liability.
The word "immunity" is not in the statute itself. But in Zeran v. America Online, Inc. (4th Cir. 1997) 129 F.3d 327, cert. denied June 22, 1998, __U.S. __, the Fourth Circuit Court of Appeals expressly held that "[b]y its plain language, §230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service." (Id. at 330.)
In a recent case, Kathleen R. v City of Livermore (Alamedia County Superior Court, 1999), a mother of a teenage boy sued the library because her son had accessed sexually explicit pictures through the library's Internet service. The City made two arguments based on §230. The first argument was that §230 provides federal immunity from liability to service providers for the speech of third-party content providers. The second argument was that in enacting §230, Congress preempted any state law that may be to the contrary. The action was dismissed.
What remains in question is whether a parent could successfully establish a negligence action against a school for harm caused to students due to access to material through the district system. Clearly, a school has a higher duty of care to protect children than does a public library. This question has not been addressed.
Negligence Cause of Action
The elements of a cause of action for negligence are determined by state law, which varies from state to state. The common elements are:
Duty of care
A district that is providing Internet access will have a duty of care. If the district provides dial-up access and makes it clear that parents are responsible for monitoring home use would likely not be considered to have a duty of care for activities that occur from home.
Foreseeable risk of harm
Depending on the facts of a case, it is possible that it could successfully be argued that there was a foreseeable risk that students might access material that would be considered inappropriate. However, whether accessing inappropriate material would constitute a risk of "harm" would be a question.
Negligence is the failure to take reasonable precautions against a foreseeable risk. If there is a foreseeable risk of harm, then a district has an obligation to take reasonable precautions against it. As will be discussed below, this is the area where a district can take affirmative actions to avoid liability.
This element inquires into whether the district's actions or failure to take actions causes the harm to occur? Frequently the question is phrased, "But for the district's actions, would this harm have occurred?" In many cases relating to student use of the Internet there will likely be student action as a causative factor.
Injury or harm
A compensible injury must be a direct consequence of the district's negligence. It would likely be difficult for a parent to prove that his or her 14 year old son suffered a compensible injury when he violated the school's Internet policy and downloaded pornography. On the other hand, a first grader who inadvertently wanders into a violence site could suffer compensible emotional distress. A student who gets involved with an online predator or who downloads recipes for bombs could also sustain a compensible injury.
The critical legal question in the event of problems arising from the use of the Internet will be whether the district had exercised reasonable precautions against a foreseeable risk. The steps that a district can take to reduce the potential of liability are those that relate to the exercise of reasonable precautions. These are activities that a conscientious district would do regardless of concern about liability.
Reasonable precautions could include:
Restrictions in the district's Internet policy addressing personal safety and downloading harmful material.
The provision of information to the parents about the potential dangers prior to their approval of their child's access.
Ongoing provision of safety information to parents.
Ongoing instruction to students about personal safety and responsible use issues.
Professional development for teachers around potential dangers.
Adequate monitoring of student use of the Internet.
Affirmative action taken by district staff, if questions or concerns arise.
Is Filtering Software a Required
Filtering software may act to prevent access to dangerous information. Filtering software may also be somewhat effective in dealing with on-line predators if the software is used to block access to chat rooms, which are a primary location for predators.
Under federal law 47 U.S.C. § 230 (c)(2), an Internet service provider cannot be held liable on account of "(A) any action voluntarily taken in good faith to restrict access to or the 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)."
This provision has not been tested in a case involving student access to inappropriate material through a filtered school system. Under the terms of the statute, an educational institution cannot be held liable for their decision to restrict access. The language does not appear to address situations where an education has made the decision to use filtering but has failed to use precautions and the filtering system failed to block access.
The biggest danger presented by the installation of filtering software is the false security and complacency that can result from such a decision. Educators who do not recognize the limitations of filtering software may falsely assume that the software will address all possible areas of concern. This false assumption could result in the failure to take other reasonable precautions.
Given deficiencies of filtering technology, the constitutional concerns about its use, and the potential detrimental effects of false security, at this point in time, it can probably be concluded that filtering is a reasonable precaution, but not a legally required reasonable precaution.
Liability for the Actions of Staff or Students
The potential of district liability if a user causes harm to another person or organization through the use of the system is a concern. Areas of concern include: Defamation, harassment, or invasion of privacy; Copyright Infringement and Computer security violations (hacking)
Defamation, Harassment, or Invasion of Privacy
47 U.S.C. § 230 of the Computer Decency Act provides immunity for "interactive service providers" for material that is transmitted through their system, but not for "information content providers." Education institutions are included in the definition of interactive service provider, but this designation only addresses situations where the district has no control or supervisory responsibilities related to the material transmitted through the system. If the district establishes a district web site, the district is also an information content provider and can be held to publisher standards for any defamatory material posted on the site. The district can also be held liable for harm caused by material that is considered to be harassment or an invasion of privacy.
It is possible that districts could be held liable for harm caused by material transmitted through the system by students due to the failure to adequately supervise. But it is also possible that the immunity provided by 47 U.S.C. § 230 would apply in such a case. The district can be held liable for harm caused by material transmitted by staff.
The district may be held liable for the presence of any material that is posted on the district web site in violation of copyright laws. The "Online Copyright Infringement Liability Limitation Act" provides interactive service providers with an exemption from monetary damages for copyright infringement, but only if the provider is not directly involved with the placement of the material. On virtually all school web sites, school staff is or should be directly involved with the placement of the material. If the district is acting as an ISP and allowing staff, students, student organizations, and/or others to establish personal or organizational web pages without any district-level control, then the district may meet the criteria of the Act. In such cases, there are strict procedures that must be followed to avoid liability, including filing with the Copyright Office and placing a notice on the web site
The following are actions that the district can take to limit liability to others for the actions of staff or students.
Establish a process to ensure all materials on district web site are closely evaluated.
Provide professional development for teachers and instruction to students about defamation, invasion of privacy, harassment, and copyright law.
Include an immunity provision in the policy.
Take prompt action if accusations are made.
Be prepared to stand up for staff or students if false accusations are made.
District Liability for Damage to Student
An area of potential liability is district failure to protect a student's constitutional rights. If a student's rights, as addressed in this document, are not adequately protected by a district and the student suffers harm as a consequence, the district could be held liable. Potential areas of concern are related to due process, search seizure, and free speech.
Recently, a number of districts have gotten into difficulties for inappropriately disciplining students for material that the students have posted on their personal web sites. A district in Ohio paid $30,000 in settlement of a case that was filed against them for suspending a student because of material he posted on his personal web site that was critical of his band teacher. In Beussnik v. Woodland R-IV School District (U.S. District Court, Eastern District of Missouri, Southeastern Division 1998) the court ruled in a preliminary injunction that the school could not discipline the student for material on a personal web page that was very critical of the administration of his school. These cases are discussed more fully in the Free Speech -- Student Speech chapter.
Other Liability Issue
Losses Caused by System Failure
There is a potential for a district to be held responsible for losses sustained by users as a result of a system failure. These losses could involve loss of data, an interruption of services, or reliance on the accuracy of information maintained on the district system or accessed through the system. The use of a disclaimer that provides notice of the potential for such loss and disclaims district responsibility should protect the district from liability. Users should also be advised to make a personal back-up of material contained on the district system.
Districts should be concerned about the potential that a user will violate the district restriction against purchasing products or services through the system. The district will want to make it clear to parents that there is a potential for students to use the system in such a manner. The district will also want to include in its policy a disclaimer for any financial obligations arising from unauthorized use of the system for the purchase of products or services.
Damage to District System
Another area of concern is damage to the district system by misuse of the system that causes damage to the system. An example would be a student intentionally placing a virus on the system. This is no different than any other damage caused by a student or staff member and is likely covered in other district policies related to damage to district facilities.