Since most lawsuits against Internet service providers are now barred by Section 230 of the Communications Decency Act -- only material posted by the ISP itself may generate liability -- the locus of litigation may well shift. The next logical target would be the browser or search engine. Injured plaintiffs might well claim, as a few have, that it was the search system that "led" readers to the offending material and that, but for the browser, such harmful statements would have languished in innocuous obscurity.

    Several such cases have been filed, though with no meaningful results. A couple of years ago a corporate director sued Yahoo!, claiming that its browser had led unfriendly sources to embarrassing and hitherto confidential information about him that could not -- or at least would not -- have been discovered in any other way. No reported proceedings followed the filing.

    The most celebrated case this past year was brought against Yahoo! by a message-board user known as "Aquacool_2000." The suit was filed by a person calling himself "John Doe," an Ohio citizen who uses the Aquacool handle. He charged that Yahoo! violated his state constitutional and contractual rights to privacy when it told his employers that he was the author of highly critical messages on a Yahoo! bulletin board. The messages were undeniably disrespectful. One charged that a senior member of the management team of AnswerThink (the employer) was an "arrested adolescent whose favorite word is ‘turd.’" Another of Doe’s bosses was called "so dull that a 5-watt bulb gives him a run for the money."

    When the employers read such messages, they subpoenaed Yahoo! to demand disclosure of the author’s identity. Without Aquacool_2000’s permission or knowledge, Yahoo! identified him as the source. Within a few weeks, Doe was summarily fired and was denied the cash bonus he had expected imminently. He also forfeited a large block of company stock that was about to vest. All this, he claimed, could not have happened to him had Yahoo! not revealed an identity that he believed was safely concealed.

    In the suit, Aquacool_2000 argues that his privacy was legally protected. His attorney, Megan Gray of the Los Angeles office of the prestigious First Amendment firm of Baker & Hostetler, posits that "Yahoo!’s entire web site is infused with the ‘TRUSTe’ [privacy protection] symbol and statements of the company’s commitment to privacy." The Aquacool suit is admittedly novel; Gray attributes the absence of other cases, much less precedent, to a lack of knowledge or sophistication on the part of those who post such messages. "People aren’t aware that this information is being given out," she notes.

    Though Yahoo! insists that it regularly notifies a user and seeks permission to reveal such information, it feels no legal obligation to do so. Gray thus sees the Aquacool lawsuit as a way of establishing protective precedent under California law. "Yahoo! can change [its policy] tomorrow," she observes. "We want a court order to require them to do so."

    Meanwhile, a similar case in Florida raises comparable concerns. J. Erik Hvide, a former shipping company executive, claimed he had been libeled on message boards hosted by Yahoo! and America Online. Such postings, he argued, led quite unfairly to his firing by the company for which he had worked. Though Hvide recognized that Section 230 would bar any defamation claim against either provider, he filed suit against his anonymous detractors and then sought through discovery to learn their identity. A Miami judge ordered AOL and Yahoo! to reveal the real names of the pseudonymous chat room participants. The American Civil Liberties Union filed an amicus curiae brief supporting the anonymity of the message posters.

    The portent of such cases extends well beyond the immediate privacy claim of an outspoken chat room user. In her Aquacool complaint, Megan Gray poses basic concerns about free expression on the Internet: "The Yahoo! message boards are a forum where the common man may voice his opinion, however silly or brilliant it may be. Discussion of information about the company and its management is common, but so too is speculation about its future stock price, random musings about its prospects, and even ‘off topic’ trivialities.... The message boards also give users and the subject a unique opportunity to reply to speech on the message boards they believe to be wrong or defamatory. A message board user can promptly post a reply to an objectionable posting and, in many cases, the reply will reach the exact audience that read the initial posting."

    It is too early to tell how far such suits against search engines and browsers may succeed, or on what legal grounds. Privacy-protective legislation could well moot the issues. Meanwhile, it seems likely that courts will -- as in the Aquacool and Hvide cases -- be increasingly receptive to claims of those who are victims of anonymous chat room and message board postings, and will often do as the California and Florida courts did in compelling identification of Internet users.