When Kenneth Zeran filed his complaint against America Online (AOL) in April 1996, the internet as we know it today did not exist. Numerous services that for many consumers are now integral to the internet—such as Google, Facebook, YouTube, Twitter and eBay—either had not yet been developed at all or were in their infancy. At the same time, the interpretation of §230 was an issue of first impression. Section 230 had not received nearly the same attention as the rest of the Communications Decency Act (which itself was a single title in the broader Telecommunications Act of 1996), either during the legislative process or in the immediate legal aftermath, in which a Constitutional challenge to the act’s indecency restrictions was already well on its way to the Supreme Court.

In the face of this relatively clean slate, one key strategic consideration was how broadly to frame the case. It was not immediately evident that Congress had enacted a far-reaching immunity in a one-sentence subsection—§230(c)(1)—in the midst of these other more prominent provisions. Such statutory immunity is relatively rare. By providing that “no 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,” had Congress intended to preempt virtually all state tort and statutory causes of action against service providers, as well as non-criminal federal claims, for third-party content? Would such immunity apply even when a service provider knew of the unlawful content and intentionally chose to take no action?

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