Recently, the National Association of RV Parks and Campgrounds (ARVC) was requested to look into the issue of whether there could be liability associated with campgrounds offering wireless access to their guests and potential copyright infringement. ARVC requested its consulting firm, McDermott, Will & Emery (MWE), to conduct initial research on the subject.
MWE concluded that there may be some risks associated with offering wireless Internet access on their premises. MWE states, “Federal law in this area is somewhat unsettled and continues to evolve. Moreover, all 50 states regulate Internet use to some degree and requirements may vary from state to state.”
On the issue of patent infringement, MWE stated,” even if ARVC members are targeted (which we think is probably not likely) it would probably be in the form of a cease and desist letter, not a lawsuit.”
MWE offered the following general guidance about potential areas of liability and steps ARVC members can undertake to mitigate these risks. ARVC shared in a recent alert to its members:
As a general matter, courts and legislatures have been loath to hold Internet service providers liable for content downloaded by Internet users. It is unclear, however, whether business owners who provide wireless Internet qualify as “Internet service providers” under the relevant federal statutes:
- Potential Copyright Infringement Liability – The Digital Millennium Copyright Act specifically immunizes Internet service providers from liability for transmitting copyright-protected material. The federal courts have not addressed whether a HotSpot operator is considered an internet service provider under the statute.
- Potential Defamation Liability – The Communications Decency Act also grants most Internet service providers immunity from liability for publishing false or defamatory material as long as the information was provided by another party. Again, no court has addressed whether a HotSpot operator is considered an Internet service provider under the statute.
- Potential Liability for the Distribution of Illegal Pornography – Distribution of child pornography through the Internet is a federal crime. Moreover, the law provides for a civil cause of action for anyone harmed by the distribution of child pornography. To be guilty of these offenses, a person must knowingly engage in the prohibited conduct. An Internet service provider or HotSpot operator is likely immune from liability provided he/she is unaware of the illegal activities of their users.
- Communications Assistance for Law Enforcement (CALEA): This federal statute requires Internet providers to modify and design equipment so that law enforcement and intelligence agencies can conduct electronic surveillance. Owners that install wireless routers may be subject to CALEA obligations, and may face fines for non-compliance.
Until courts or legislatures more broadly define the legal status of HotSpot providers, perhaps like some ARVC members, we recommend the following measures out of an abundance of caution:
- Consider requiring users to enter a verifiable e-mail address as a deterrent to illegal behavior.
- Consider requiring a username and password to increase security and protection for users.
- Consider requiring users to accept “terms and conditions of use” that prohibit illegal activity; copyright violations; pornographic content and require all Internet users to be 18 or supervised by an adult.
The terms and conditions page could also include a disclaimer of liability for any illegal or improper use of the internet.
- Consider filtering programs to block access to certain sites.
- Consider engaging a third party internet service provider who will provide internet access and implement the above, rather than allowing individual sites to set up a wireless router.