In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 02-4323

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.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 99 C 7885—Charles P. Kocoras, Chief Judge.

____________

ARGUED SEPTEMBER 24, 2003—DECIDED OCTOBER 21, 2003

____________

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,
2 No. 02-4323

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 (N.D.

Ill. June 21, 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 (1894); Torrence v. Shedd, 144 U.S. 527 (1892);

Phoenix Container, L.P. v. Sokoloff, 235 F.3d 352 (7th Cir.
No. 02-4323 3

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 (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
4 No. 02-4323

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.
No. 02-4323 5

(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
6 No. 02-4323

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 (1994). Although a

statute’s structure may show that secondary liability has

been established implicitly, see Boim v. Quranic Literacy

Institute, 291 F.3d 1000 (7th Cir. 2002), it is hard to read

§2511 in that way. Subsection 2511(1)(c) creates liability for

those who wilfully disseminate the contents of unlawfully

intercepted information. See Bartnicki v. Vopper, 532 U.S.

514 (2001). A statute that is this precise about who, other

than the primary interceptor, can be liable, should not be

read to create a penumbra of additional but unspecified

liability.

What is more, GTE’s activity does not satisfy the ordinary

understanding of culpable assistance to a wrongdoer, which

requires a desire to promote the wrongful venture’s success.

See generally United States v. Pino-Perez, 870 F.2d 1230

(7th Cir. 1989) (en banc). A web host, like a delivery service

or phone company, is an intermediary and normally is indifferent to the content of what it transmits. Even entities

that know the information’s content do not become liable for

the sponsor’s deeds. Does a newspaper that carries an

advertisement for “escort services” or “massage parlors” aid

and abet the crime of prostitution, if it turns out that some

(or many) of the advertisers make money from that activity?

How about Verizon, which furnishes pagers and cell phones
No. 02-4323 7

to drug dealers and thus facilitates their business? GTE

does not want to encourage the surreptitious interception of

oral communications, nor did it profit from the sale of the

tapes. It does profit from the sale of server space and

bandwidth, but these are lawful commodities whose uses

overwhelmingly are socially productive. That web hosting

services likewise may be used to carry out illegal activities

does not justify condemning their provision whenever a

given customer turns out to be crooked. Franco did not demand a quantity or type of service that is specialized to

unlawful activities, nor do plaintiffs allege that the bandwidth or other services required were themselves tipoffs so

that GTE, like the seller of sugar to a bootlegger, must have

known that the customer had no legitimate use for the

service. Just as the telephone company is not liable as an

aider and abettor for tapes or narcotics sold by phone, and

the Postal Service is not liable for tapes sold (and delivered)

by mail, so a web host cannot be classified as an aider and

abettor of criminal activities conducted through access to

the Internet. Congress is free to oblige web hosts to withhold services from criminals (to the extent legally required

screening for content may be consistent with the first

amendment), but neither §2511(a) nor §2520 can be understood as such a statute.

Section 230(c)(2) tackles this problem not with a sword

but with a safety net. A web host that does filter out offensive material is not liable to the censored customer. Removing the risk of civil liability may induce web hosts and other

informational intermediaries to take more care to protect

the privacy and sensibilities of third parties. The district

court held that subsection (c)(1), though phrased as a definition rather than as an immunity, also blocks civil liability

when web hosts and other Internet service providers (ISPs)

refrain from filtering or censoring the information on their

sites. Franco provided the offensive material; GTE is not a

“publisher or speaker” as §230(c)(1) uses those terms; there-
8 No. 02-4323

fore, the district court held, GTE cannot be liable under any

state-law theory to the persons harmed by Franco’s material. This approach has the support of four circuits. See

Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997);

Ben Ezra, Weinstein & Co. v. America Online, Inc., 206 F.3d

980 (10th Cir. 2000); Green v. America Online, Inc., 318

F.3d 465 (3d Cir. 2003); Batzel v. Smith, 333 F.3d 1018 (9th

Cir. 2003). No appellate decision is to the contrary.

If this reading is sound, then §230(c) as a whole makes

ISPs indifferent to the content of information they host

or transmit: whether they do (subsection (c)(2)) or do

not (subsection (c)(1)) take precautions, there is no liability

under either state or federal law. As precautions are costly,

not only in direct outlay but also in lost revenue from the

filtered customers, ISPs may be expected to take the donothing option and enjoy immunity under §230(c)(1). Yet

§230(c)—which is, recall, part of the “Communications

Decency Act”—bears the title “Protection for ‘Good Samaritan’ blocking and screening of offensive material”, hardly an

apt description if its principal effect is to induce ISPs to do

nothing about the distribution of indecent and offensive

materials via their services. Why should a law designed to

eliminate ISPs’ liability to the creators of offensive material

end up defeating claims by the victims of tortious or criminal conduct?

True, a statute’s caption must yield to its text when the

two conflict, see Trainmen v. Baltimore & Ohio R.R., 331

U.S. 519, 528-29 (1947), but whether there is a conflict is

the question on the table. Why not read §230(c)(1) as a definitional clause rather than as an immunity from liability,

and thus harmonize the text with the caption? See Carlisle

v. United States, 517 U.S. 416, 421 (1996). On this reading,

an entity would remain a “provider or user”—and thus be

eligible for the immunity under §230(c)(2)—as long as the

information came from someone else; but it would become
No. 02-4323 9

a “publisher or speaker” and lose the benefit of §230(c)(2) if

it created the objectionable information. The difference between this reading and the district court’s is that §230(c)(2)

never requires ISPs to filter offensive content, and thus

§230(e)(3) would not preempt state laws or common-law

doctrines that induce or require ISPs to protect the interests of third parties, such as the spied-on plaintiffs, for such

laws would not be “inconsistent with” this understanding

of §230(c)(1). There is yet another possibility: perhaps

§230(c)(1) forecloses any liability that depends on deeming

the ISP a “publisher”—defamation law would be a good

example of such liability—while permitting the states to

regulate ISPs in their capacity as intermediaries.

We need not decide which understanding of §230(c) is superior, because the difference matters only when some rule

of state law does require ISPs to protect third parties who

may be injured by material posted on their services. Plaintiffs do not contend that GTE “published” the tapes and

pictures for purposes of defamation and related theories of

liability. Thus plaintiffs do not attempt to use theories such

as the holding of Braun v. Soldier of Fortune, 968 F.2d 1110

(11th Cir. 1992), that a magazine publisher must use care

to protect third parties from harm caused by the sale of

products or services advertised within its pages, and we

need not decide whether such theories (if recognized by

state law and applied to ISPs) would survive §230(c).

Instead, they say, GTE is liable for “negligent entrustment

of a chattel,” a tort that the Restatement (Second) of Torts

§318 encapsulates thus:

If the actor permits a third person to use . . . chattels

in his possession otherwise than as a servant, he is,

if present, under a duty to exercise reasonable care so

to control the conduct of the third person as to prevent

him from intentionally harming others . . . if the actor

(a) knows or has reason to know that he has the ability
10 No. 02-4323

to control the third person, and (b) knows or should

know of the necessity and opportunity for exercising

such control.

See also Restatement (Second) of Torts §308. The idea is

that if A entrusts his car to B, knowing that B is not competent to drive, then A (if present) must exercise reasonable

care to protect pedestrians and other drivers. Plaintiffs

want us to treat GTE’s servers, routers, and optical-fiber

lines as chattels negligently “entrusted” to Franco and used

to injure others. But GTE did not entrust its computers,

network, or any other hardware to Franco; it furnished a

service, not a chattel.

Plaintiffs do not cite any case in any jurisdiction holding

that a service provider must take reasonable care to prevent

injury to third parties. Consider the Postal Service or

Federal Express, which sell transportation services that

could be used to carry harmful articles. As far as we can

discover, no court has held such a carrier liable for failure

to detect and remove harmful items from shipments. That

likely is why plaintiffs have not sued any delivery service

for transporting the tapes from Franco to the buyers. Similarly, telephone companies are free to sell phone lines to

entities such as Franco, without endeavoring to find out

what use the customers make of the service. See, e.g.,

Anderson v. New York Telephone Co., 320 N.E.2d 647 (N.Y.

1974) (no liability for phone company that furnished service

to someone who used the connection to play a defamatory

recording to all callers). Again plaintiffs have not sued any

phone company.

Yet an ISP, like a phone company, sells a communications

service; it enabled Franco to post a web site and conduct

whatever business Franco chose. That GTE supplied some

inputs (server space, bandwidth, and technical assistance)

into Franco’s business does not distinguish it from the lessor of Franco’s office space or the shipper of the tapes to its
No. 02-4323 11

customers. Landlord, phone company, delivery service, and

web host all could learn, at some cost, what Franco was

doing with the services and who was potentially injured as

a result; but state law does not require these providers to

learn, or to act as Good Samaritans if they do. The common

law rarely requires people to protect strangers, or for that

matter acquaintances or employees. See generally

Stockberger v. United States, 332 F.3d 479 (7th Cir. 2003).

States have enacted statutes to change that norm in some

respects; Dram Shop laws are good examples. Plaintiffs do

not identify anything along those lines concerning web

hosts. Certainly “negligent entrustment of a chattel” is not

a plausible description of a requirement that service providers investigate their customers’ activities and protect

strangers from harm. Nor does the doctrine of contributory

infringement, see Hard Rock Café Licensing Corp. v. Concessions Services, Inc., 955 F.2d 1143 (7th Cir. 1992), offer

a helpful analogy. A person may be liable as a contributory

infringer if the product or service it sells has no (or only

slight) legal use, see Sony Corp. of America v. Universal

City Studios, Inc., 464 U.S. 417 (1984); In re Aimster

Copyright Litigation, 334 F.3d 643 (7th Cir. 2003), but

GTE’s web hosting services are put to lawful use by the

great majority of its customers. (This is why ISPs are not

liable as contributory infringers for serving persons who

may use the bandwidth to download or distribute copyrighted music—and indeed enjoy safe harbors under the

Digital Millennium Communications Act, discussed in

Aimster, unless the ISP has actual notice that a given customer is a repeat infringer.) For the same reason, plaintiffs’

invocation of nuisance law gets them nowhere; the ability

to misuse a service that provides substantial benefits to the

great majority of its customers does not turn that service

into a “public nuisance.”

Maybe plaintiffs would have a better argument that, by

its contracts with Franco, GTE assumed a duty to protect
12 No. 02-4323

them. No third-party-beneficiary argument has been advanced in this court, however, so we need not decide how it

would fare. None of the arguments that plaintiffs now make

shows that any of the states where their colleges and

universities were located requires suppliers of web hosting

services to investigate their clients’ activities and cut off

those who are selling hurtful materials, so the district

court’s judgment is

AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—10-21-03