In Zeran v. America Online, the Fourth Circuit upheld the broad grant of immunity for interactive service providers set out in §230 of the Communications Act, 47 U.S.C. §230. The court found that the new statute established a clear Congressional intent to exempt the emerging online industry from the threat of liability for information posted by others on their networks or transmitted over and through them. Obviously, this decision was very gratifying to the industry, and especially to those of us who had spent many months crafting and negotiating that legislation. It would be fair to say, however, that this hugely favorable result likely would never have come to pass without an earlier court decision involving the Stratton Oakmont brokerage firm, infamously memorialized in the movie “The Wolf of Wall Street.”
The complex legal and political issues that ultimately generated §230 as it was reviewed in Zeran had their genesis in a Senator’s desire to protect kids from pornography and other objectionable materials available on this new technological medium called the Internet, and a New York court that found Prodigy Services Company, one of the preeminent online pioneers, liable for millions of dollars because it tried to do just that. Given the obvious disconnect between those perspectives, the path to a resolution that could protect Prodigy and the rest of the online industry from potentially crippling liabilities was both far from clear and littered with proverbial minefields. How we got from those early existential threats to Zeran is an interesting exercise in legislative craftsmanship and political theater, with a substantial dose of legal irony.
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