Opinion
98-CV-01815.
March 9, 2005
ROLAND, FOGEL, KOBLENZ, PETROCCIONE, KEITH J. ROLAND, ESQ., of Counsel Albany, NY, Attorneys for Plaintiff.
ELIOT SPITZER, Attorney General of New York, JAMES M. HERSHLER, ESQ., Assistant Attorney General, New York, NY, Attorney for State Defendant.
BACKGROUND
Dreamscape is a New York Corporation that has operated an Internet Service Provider ("ISP") based in Syracuse, NY, for four years. Dreamscape serves approximately 10,000 subscribers by offering conventional Internet services including e-mail, access to the World Wide Web, Internet Searching or Web browsing, as well as access to over 30,000 diverse news groups.
News groups are postings which, at a certain Internet address, serves as the contact point for the exchange of information or opinion on any given topic. The range of topics is inestimable and cover virtually every aspect of human concern. The various news groups topics scrutinize topics from the sublime to the ridiculous and all points in between. The subject matter of this litigation is centered on certain news groups which are available to Dreamscape subscribers.
News groups are postings which, at a certain Internet address, serve as the contact point for the exchange of information or opinion on any given topic. It is estimated that over 100,000 messages are posted each day for the 30,000 news groups. These posted messages can originate anywhere in the world. A message initiated in Europe could be posted to a news group in the United States and receive a reply from Asia or Africa. These messages would be available to Dreamscape subscribers in central New York, and, in turn, any messages they posted in the news group would receive global exposure.
Entry to a news group is provided by an ISP using a news server or by direct connection without using a news server. News servers are electronic equipment which temporarily store information on a electronic format. The server performs a function similar to how voice mail messages are temporarily stored in telephone company electronic memories, and the way e-mail messages are temporarily stored in memory process. News servers are an essential part of the Internet network. In temporarily copying and storing messages initiated in other Internet sites, news servers, through a catching process, give direct access to news groups on a local basis without having to transmit and receive a message from remote global positions. Generally, whether or not a server is used by an ISP in New York does not affect the identity of the news groups or messages which can be accessed by the ISP's subscribers. The role of a news server is simply for network concentration and routing, and ISP subscribers are not cognizant of its purpose.
Dreamscape does not contribute to or control the news groups available through the Internet and does not limit, designate or choose the news groups available to its subscribers. Dreamscape serves only as a conduit offering its subscribers access to all the Internet and World Wide Web has to offer. The Web pages, messages, programming, news and news groups are engendered by countless participants on the Internet and provide worldwide origination. Dreamscape does not screen, edit, review, delete, block, censor or control any messages which are entered into the news groups.
In October 1998, New York State Police Officer John Reedy requested that Dreamscape permit a tour of its facilities. Officer Reedy had previously visited the facilities and was provided with a tour on October 27, 1998. On that date the State Police and Attorney General's staff members entered the Dreamscape offices and served a search warrant. The warrant authorized the seizure of computer hardware, software or related documentation which constituted evidence of the crime of "promoting a sexual performance by a child" has been committed in violation of New York Penal Law § 263. This section prohibits the promotion or possession of obscene sexual performance by a child, and are either Class C or D felonies. Pursuant to the search warrant, the state officials seized Dreamscape's news server, which was used by Dreamscape to provide its subscribers with access to 30,000 news groups. After the seizure, Dreamscape converted to a direct connection news group through an entity known as "Supernews," which did not require use of a local news service. Thus, it appears that the seizure of the news server caused no interruption of Dreamscape's services to its customers.
In addition to the search warrant, Dreamscape was also served with a subpoena duces tecum demanding the production of various items before a grand jury including "letters of complaints and inquiries from anyone, the response thereto, and internal documents generated as a result thereof," related to Dreamscape's determination to make certain News groups available to its service. Dreamscape alleges that the only complaint it received regarding child pornography was an e-mail letter from a "John G.," and it was part of a deliberate effort by defendant Attorney General Vacco to create a subterfuge entrapment which would enable him to attract favorable publicity on the eve of his uncertain reelection bid. After the seizure, Dreamscape learned that it was part of an action against child pornographers call "Operation Sabbatical." In a October 28, 1998 press release, defendant Vacco took credit, along with other law enforcement personnel, for making 13 arrests in twelve states and three foreign countries. He announced that he had shut down Internet news servers utilized by two ISPs, one being Dreamscape, which defendant Vacco alleged was "providing service" to child pornography traffickers. Dreamscape denies defendant Vacco's statement that it provides service to any child pornographer, that it did not provide service to any of the persons accused of trafficking in pornography, and that it is not connected with them in any manner nor were they Dreamscape subscribers. Dreamscape has not been charged with any crime to date, however, in public statements made after the initial arrests, the Attorney General and/or his agents indicated that the filing of criminal charges against Dreamscape was being considered.
Dreamscape maintains that the responsibility for the contents of all messages remains with the originator of the message and because its net contains such an incredible amount of information, it was technically impossible for Dreamscape to screen or take any editorial control over the contents of hundreds of thousands or even millions of messages posted through Cyberspace at any given day each day and then automatically transferred into Dreamscape's server. Even if it had the technology, personnel, time and resources to screen and edit news groups, there is no way for an IPS to know whether someone has posted or deposited, into a seemingly innocent newsgroup, materials and images related to child pornography. As a result, a newsgroup devoted to sports coverage could suddenly receive images of child pornography that come to rest either on Dreamscape's Internet news service or is transferred to one of Dreamscape's customers who routinely access sports coverage. If Dreamscape did not screen and review every message listed on the news group, it could, under the Attorney General's policy, be nonetheless guilty under his interpretation of the law of either possessing or promoting child pornography. Dreamscape contends this is an impossible obligation to undertake and is grossly inequitable considering the type of technology and the overwhelming number of messages that are posted each day. Dreamscape did state that if any illegal material was found, it would fully cooperate with governmental authorities if and when the incident and case is brought to its attention.
Currently before the court are Plaintiff's motion for class certification pursuant to Federal Rule of Civil Procedure 23, and Defendant's motion to 12(b)(1) and (6) of the Federal Rules of Civil Procedure to dismiss the complaint for lack of subject matter jurisdiction and for failure of the pleading to state a claim upon which relief can be granted. The respective parties have entered opposition to each other's motion.
DISCUSSION
Dreamscape contends that Defendant's authorized actions under the guise of violation of New York Penal Law § 263 placed an unlawful burden on interstate commerce in violation of United States Constitution Article I, § 8, cl. 3.
Article III of the Constitution limits the jurisdiction of federal courts to cases or controversies. Federal courts have no power per se to declare statutes unconstitutional.Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 67 L.Ed. 1078 (1923). The constitutional requirement of a justiciable controversy is met only where plaintiff has sustained, or is in immediate danger of sustaining, some direct injury as a result of which there arises an honest and active antagonistic assertion of rights. O'Shea v. Littleton, 414 U.S. 488, 493-95, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974); Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961). There must be a genuine threat of enforcement of a disputed state criminal statute before a case or controversy involving that statute may be said to exist. Ellis v. Dyson, 421 U.S. 426, 434, 95 S.Ct. 1691, 1696, 44 L.Ed.2d.2d 274 (1975); Steffel v. Thompson, 415 U.S. 452, 475, 94 S.Ct. 1209 (1223), 39 L.Ed.2d 505 (1974); Younger v. Harris, 401 U.S. 37, 41-42, 91 S.Ct. 746 (749), 27 L.Ed.2d 669 (1971). For purposes of standing, "[a]llegations of a subjective `chill' are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm." Laird v. Tatum, 408 U.S. 1, 13-14, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972); Bigelow v. Virginia, 421 U.S. 809, 816-17, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975).
In St. Martin's Press, Inc. v. Carey, 605 F.2d 41 (2d Cir. 1979), individuals who proposed to publish and sell a book containing sexually-related material including nude photographs of children brought an action seeking a declaration that a New York criminal statute which prohibited the "promotion" of any "performance" that included "sexual conduct" by a child was unconstitutional on its face and could not be constitutionally applied to the publication and sale of the book. The district court issued a preliminary injunction restraining the state from enforcing the statute against the book. The Second Circuit reversed, holding that no case or controversy had been presented. The Court rested its holding on the fact that the state authorities had neither threatened to prosecute nor actually prosecuted the plaintiffs under the challenged statute. Indeed, the state had "shown no interest in or concern over plaintiff's book." Id., at 44. In short, there was simply "no reason to believe that (the defendants) intended to prosecute (plaintiffs) under (the statute) for disseminating their . . . work." Id. The Second Circuit applying these principals, concerning ripeness which have quoted above, found that it was improper to rule on the statute's validity.
Plaintiffs have not demonstrated the requisite showing of an impending threat of prosecution under the statute under the traditional ripeness analysis. Where, as here, there is no credible threat of either imminent or delayed enforcement. Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989, reh'g denied, 368 U.S. 869, 82 S.Ct. 21, 7 L.Ed.2d 69 (1961). Plaintiff has not demonstrated that the state is likely to interrupt its course of non-prosecution. Moreover, Plaintiff does not demonstrate a credible fear of enforcement of this statute by the state. Uncertainty about enforcement does not establish a credible basis for fearing enforcement, much less a likelihood of enforcement. If federal courts had jurisdiction to decide disputes wherever uncertainties exist, their jurisdiction would be unending.
The events underlying this case tool place over six years ago, since that time it has languished undisturbed, and as far as this court can determine, for all intents, forgotten. There have been no arrests or indications in the record that the state plans to prosecute, and aside from the public statements by state agents at the time the events occurred, regarding a possibility that charges might be brought against Dreamscape, no further threats are disclosed by the record. Where the government does not intend to prosecute, there is no justiciable "case or controversy." Shea v. Littleton, 414 U.S. 488, 493-94, 94 S. Ct. 669, 38 L.Ed.2d 674 (1974).
Accordingly, Defendant's motion is granted and the complaint is DISMISSED; Plaintiff's motion for class certification is DENIED as moot.