Metropolitan News-Enterprise


Friday, December 15, 2006


Page 1


Company Held Immune From Tort Action Over Threats Employee Allegedly Made Through Work Computer


By TINA BAY, Staff Writer


A company that gives its employees Internet access through its internal computer system is a “provider…of an interactive computer service” entitled to immunity under the Communications Decency Act of 1996, the Sixth District Court of Appeal ruled yesterday.

Affirming a summary judgment order by Santa Clara Superior Court Judge Kevin E. McKenney, the court rejected a suit against Agilent Technologies, Inc. over threats a former employee allegedly sent out through the company’s computer system.

In a May 2005 ruling, the trial judge held Agilent was immune from suit under Sec. 230 of the CDA, which states in part 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.”

An “interactive computer service,” the statute says, 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 and such systems operated or services offered by libraries or educational institutions.”

Agreeing with McKenney, Justice Wendy Clark Duffy wrote for the appeals court:

“…Agilent’s proxy servers are the primary means by which thousands of its employees in the United States access the Internet. In light of the term’s broad definition under the CDA, we conclude that Agilent was a provider of interactive computer services.”

Noting the court’s decision was the first ruling on the issue, Duffy concluded Agilent could not be the subject of a lawsuit treating it as the publisher or speaker of threats made by an employee.

Agilent was sued in 2003 by Mountain View residents Michelangelo Delfino and Mary E. Day, who claimed the company, along with employee Cameron Moore, was responsible for intentionally and negligently inflicting emotional distress against them through cyberthreats that Moore made.

The employee allegedly sent anonymous threats to the plaintiffs through e-mails and postings on a Yahoo! message board primarily using the screen name “crack smoking jesus,” which he later admitted to the FBI was his pseudonym. 

Delfino claimed Moore’s hostility toward the plaintiffs stemmed from his connection with Varian Medical Systems, which had been involved in an unrelated lawsuit against Delfino and Day. The pair claimed Moore was linked to a vice president of Varian, George Zdasiuk, through Agilent employee Julie Fouquet who was Zdasiuk’s wife.

Varian had sued the two over derogatory messages they posted about the company and certain of its employees on Internet message boards. After Varian prevailed in a jury trial, and while the judgment was pending appeal, Moore allegedly worked with Varian supporters to harm Day and Delfino.

His graphic and explicit threats included an email to Delfino promising to break his fingers and teeth, destroy his car, and perhaps set his residence on fire.

Delfino and Day claimed that Agilent knew Moore was using its computer system to send the threats.

But Duffy said that even if Agilent were not immune from liability under the CDA, the plaintiffs failed to show the company ratified Moore’s malicious conduct or that his actions were within the scope of his employment, such that Agilent could be held liable on the intentional infliction claim.

The jurist explained:

“Using Agilent’s computer system to log on to a private Internet account to send messages—threatening or otherwise—was never part of Moore’s job duties. Indeed, plaintiffs did not dispute this point. Furthermore, the fact that Moore may have been present at the workplace and may have been performing regular employment functions before or after transmitting one or more of the threatening messages do not transform his personal conduct into actions for which Agilent may be held vicariously liable.”

Nor was there evidence that Agilent owed the Day or Delfino a duty that would trigger liability for negligence, Duffy added.

Justices Patricia Bamattre-Manoukian and Richard J. McAdams concurred in the opinion.

Delfino told the MetNews he and Day would pursue a self-represented appeal to the state Supreme Court, and if necessary, to the U.S. Supreme Court. 

“One of the things that I find somewhat amazing is that the court concluded that all employers are interactive service providers and as such are entitled to whatever protection the CDA might give them—that’s just about everybody,” he said. “Agilent

is no more an interactive service provider than I am, for example, in the sense that I allow access to the Internet that we have.”

This is the first time that immunity under the CDA has been extended past defamation law, the former scientist added, saying he and Day have a “very strong argument” to assert on appeal.

“I don’t think that Congress ever intended for the CDA to cover criminal acts, and this case was clearly about a criminal wrongdoing,” Delfino asserted.

Agilent’s counsel, Bradford K. Newman, said the CDA “clearly mandates” the conclusion reached by the justices.

“I think [Congress] intended very strongly that outcome, especially in the world we live in where employers of all sizes and forms routinely provide Internet access to employees,” Newman said. “I don’t think this is in any way a stretch.”.

He remarked that the case was first in the country to address the issue, although there have been law review articles analyzing the question and reaching a similar conclusion.

The case is Delfino v. Agilent Technologies, Inc., 06 S.O.S. 6033.


Copyright 2006, Metropolitan News Company