The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From a decision yesterday by U.S. District Court Judge Dee Benson in Seaver v. Estate of Cazes (D. Utah):
This action arises from the death of G.S., a 13 year-old boy, caused by ingesting the illicit drug U-47700. The parents of G.S. have brought suit against the website that sold the drug to G.S., the service provider that created the network through which G.S. was able to access the website on the dark web (Tor), and the mail service that sent the drug to G.S. Plaintiffs have brought claims for strict products liability, negligence, abnormally dangerous activity, and civil conspiracy….
Tor provides software for enabling anonymous communication and transactions on the internet. To use the Tor Browser, an individual must visit Tor's website to download the software. When downloaded, installed, and used by an end-user such as G.S., the Tor Browser automatically starts Tor background processes and routes Internet traffic through the Tor network, which relays traffic through a worldwide network. The Tor network provides security to a user's location and Internet usage to anyone conducting network surveillance or traffic analysis.
The Tor Browser operates through a group of volunteer-operated servers whose users employ the Tor network by connecting through a series of virtual tunnels, or relays, rather than making a direct connection. Tor estimates, on average, between 350,000 and 400,000 directly connecting users in the Unites States over the past three months. Information regarding the location of these users and relays is not publicly available. Via its website, Tor invites users to run a relay in order to help the network grow….
Plaintiff's claims are barred by the Communications Decency Act, 47 U.S.C. § 230 …. The CDA provides that "[n]o 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." The CDA further provides that "[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." Through these provisions, the CDA "creates a federal immunity to any state law cause of action that would hold computer service providers liable for information originating with a third party." … The purpose of this immunity is to "facilitate the use and development of the Internet by providing certain services an immunity from civil liability arising from content provided by others."
First, Tor qualifies as an interactive computer service. An "interactive computer service" is "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…." 47 U.S.C. § 230(f)(2). Tor fits this definition squarely because it enables computer access by multiple users to computer servers via its Tor Browser.
Second, Plaintiff seeks to hold Tor liable for information regarding the illicit drug U-47700 that G.S. was able to access through the Tor Browser. In other words, Plaintiff seeks to treat Tor as the "publisher or speaker" of third party information—"a result [the CDA] specifically proscribes."
Third, the content that provides the basis for liability here—information regarding U-47700 and the ability to purchase it on the dark web—was not created by Tor. Rather, a third party provided the information and G.S. accessed it through use of the Tor Browser. "A service provider must 'specifically encourage[ ] development of what is offensive about the content' to be 'responsible' for the development of offensive content. Plaintiff has not alleged that Tor played any part in the creation of the content accessed by G.S.
All of Plaintiff's claims are state law causes of action that would hold Tor, an internet service provider, liable for information originating with a third party. Those claims are barred by the CDA. Accordingly, Plaintiff's claims against Tor are dismissed.