Jovelle Tamayo for NPR
In April 1995, Ken Zeran’s phone started ringing. And ring. And ring.
“Lots of calls. It wasn’t like every second. But it was just a lot of calls,” Zeran said in an interview with NPR.
He ran a real estate magazine in Seattle. But the ringing of his off-hook phone had nothing to do with it – these callers were furious, often shouting.
“‘How could you do that? What a loser you are,'” he recalled saying. “You can use your own sense and think of what they might say given what just happened in Oklahoma City.”
What had just happened in Oklahoma City was a domestic terrorist attack on a federal building that left 168 people dead and shook the nation.
Unbeknownst to Zeran, an Internet troll turned on a dial-up modem and posted a message to America Online, now AOL, with the username “Zen ZZ03”. They peddled T-shirts with offensive messages like “Visit Oklahoma … It’s a BLAST !!!” and other bland messages about the victims. The ad urged readers to call Zeran, offering the number at his home office in Seattle.
“Ask Ken,” read the ads. “Due to high demand, please call back if busy.”
Zeran wanted these ads removed. He called AOL.
“And basically, I told them, my phone is ringing all the time. And there’s nothing I can do, and all these people are upset about something that they saw on AOL,” he said.
It took a day, but AOL deleted the message. Even more arose. AOL has been slow to respond. Meanwhile, Zeran continued to be bombarded with calls, about one call every two minutes at worst.
His activity has stopped. He didn’t sleep for days and was emotionally exhausted.
Jovelle Tamayo for NPR
He spoke with the legal department of AOL, the FBI, the secret service. Nonetheless, the calls persisted. Zeran went from nervous to worried for his safety.
“I didn’t want things to go any further and a jerk showing up with a shotgun on my property,” he said. “The problem was that AOL wasn’t posting anything on its server telling its audience that it was a bunch of nonsense, a hoax or whatever. And so the calls kept going. to arrive.”
This situation sparked a battle between Zeran and AOL that would eventually go down in history and lay the legal foundation for today’s Internet.
Facebook, Google, Amazon, Yelp, Wikipedia and countless other social media, e-commerce, and chat sites that rely on user-generated content couldn’t exist without the precedent that emerged from Zeran’s case.
And some experts attribute the growth of the most pernicious content – disinformation, hate, bullying, harassment – to how the court viewed Zeran’s fight with AOL.
“The most important Internet law decision of all time”
In his lawsuit, Zeran’s attorneys wrote that AOL, by operating a “computer bulletin board,” which had been alerted to a libelous and inflammatory message and failed to act quickly enough to suppress it, was responsible. . Therefore, his lawyer argued, AOL should pay damages to Zeran.
Two months before Zeran’s trial, Congress enacted the Communications Decency Act of 1996, a predominantly anti-porn law that the Supreme Court would later go on to. tear down based on the first amendment. Something else was contained in the law, however: a provision now better known as section 230.
At the time of writing, lawmakers were concerned that if websites engage in deleting harmful content, they will be considered publishers, rather than mere distributors, under the law. This could expose this nascent industry to a flood of libel lawsuits.
To resolve what has become the “moderator’s dilemma,” Section 230 did two things. First, he said that websites cannot be prosecuted for what users post. Second, it allowed businesses to dictate what would be allowed and what would be removed from their websites. The application of these rules would be up to companies.
But how radical was this law?
Before Zeran, it was hard to say. The 26 words in section 230 that grant immunity to “interactive computer services” were impenetrable. The debate raged on the width or the narrowness of the words.
But when the United States Court of Appeals for the 4th Circuit delivered his opinion in Zeran’s case, he heavily favored AOL, broadening and strengthening the law and leaving little doubt about the power of this legal shield.
“Congress has recognized the threat that tort lawsuits pose to free speech in the burgeoning new Internet medium,” the the court wrote. “The imposition of tort liability on service providers for the communications of others represented, [is] for Congress, just another form of intrusive government regulation of speech. “
With the move, tech companies no longer had to worry about being sued for something users posted, even though the online service was warned of the defamatory content. He has helped propel tech startups into multi-billion dollar global behemoths. Scholars to call the Zeran decision “the most important Internet law decision ever made”.
“They took this truly exceptional point of view by saying that Congress wanted to treat the Internet differently from other media and provide this strong protection in an effort to encourage innovation and speech on the Internet,” said attorney Jeff Kosseff. , who wrote a book on section 230..
A review of federal court decisions by NPR shows that the Zeran case has been cited by judges 350 times, a number that academics say is likely a low estimate.
Indeed, almost every time a digital platform is sued for hosting comments that someone considers libelous, the case is dismissed before it can even be heard, often with a reference to the Zeran case. There are a few exceptions for child pornography, copyright infringement, and federal criminal law violation, but the protection is otherwise pretty much absolute.
Congress is now considering a wave of changes to Section 230 to hold tech companies more accountable for the content that spreads on their platforms.
And last week, a federal appeals court struck a blow at Section 230 in a case against Snap, Inc., the maker of Snapchat. The court said the law would not protect the company from lawsuits brought by parents of young men who died in a fatal car crash while using the app’s “speed filter” feature.
Although the full impact of the decision remains to be seen, it gave hope to plaintiff lawyers who have long been frustrated by the fact that it is nearly impossible to sue an internet company.
Zeran: “It is impossible to put genius back in”
To date, Zeran has not been able to determine who trolled him in the 90s and what may have motivated the cyberattack.
“My lawyers have asked me hundreds of times, ‘Who do you think it was for?’ “Who do you think it was?” “The only theory I can come up with is that my number was well known and it was just a case of random trolling,” he said.
Eric Goldman, a Santa Clara University Law School professor who has written extensively on the Zeran case, finds it hard to believe that Zeran was not intentionally targeted, but admits the real culprit may remain forever a mystery.
“I just can’t accept the idea that he was a random victim at the wheel. It just doesn’t pass the odor test,” Goldman said. “He’s one of the great thrillers of our time.”
Zeran is now 74 years old. He works in real estate in Seattle, and he’s also an artist. Although he is well past this chapter of his life, he said it still bothers him that the appeals court sided against him (at the time, he appealed to the United States Supreme Court , but the latter refused to examine the case).
“The judge made a huge mistake,” Zeran said. “Because by removing the responsibility, they created chaos.”
Experts widely agree that this court ruling has added to the chaos online, arguably making the confrontation with harassment, misinformation and other abuse less urgent for Silicon Valley. But advocates say the law has enabled the growth of the “open Internet” and that without the court’s broad interpretation of Section 230, platforms would be forced to censor much content for fear of being exposed to litigation.
Zeran, meanwhile, believes AOL played a major role in his grief by allowing anyone who posted the ads to remain anonymous. He hopes Congress will push websites to authenticate users’ real identities.
“People register their cars and get a license,” Zeran said before driving. “There should be a registration process for the web too.”
His nightmarish experience, he said, was a glimpse of the kind of problem an almost impenetrable legal shield for any industry could cause.
“There’s no way to put the genius back on what we have now,” Zeran said. “But that’s what we have, and it’s not working well.”