Eric Goldman, Santa Clara University School of Law

From late April through early May of 1995, Ken Zeran was the victim of an aggressive online attack—what we would now call a cyber-harassment or “e-personation,” though at the time we lacked this nomenclature. The attacker was pseudonymous, and AOL deleted the relevant server logs (pursuant to what AOL said was standard practice) that might have helped reveal the attacker. (Note: for this essay I’ll assume it was a single person and not multiple attackers, though that too remains unknown.) Zeran sued AOL and the Oklahoma radio station KRXO for their roles in the cyber-harassment, but he never sued the actual perpetrator. Indeed, over two decades later, the perpetrator remains unknown. This has emerged as one of the greatest unsolved mysteries in internet law: who attacked Ken Zeran, and why?

As part of researching this question, I reviewed the 717-page transcript of AOL defense lawyer Pat Carome deposing Ken Zeran on Feb. 18-20, 1997. Plaintiff lawyer James Ikard represented Zeran at the deposition. The deposition transcript of Ken Zeran was never filed with the court and is not generally publicly available. It doesn’t answer the “whodunit” question, but it does suggest some clues.

Let’s start with Zeran’s own appraisal of the situation in response to Carome’s point-blank question (emphasis added):

Q: Is it your view that the person who posted the messages that you’re suing over here on AOL’s system is someone that does not know you at all?

A: Absolutely … I believe I was picked at random.

Later in the deposition, Zeran said: “I never had the impression that this was done by somebody who knew me. I certainly, obviously wondered if there was anybody I knew who would do this, and I don’t know anybody that would do it.”

Zeran’s hypothesis that he was a random victim isn’t completely far-fetched. First, in 1995, anarchists and trolls already were making random and chaos-inducing online attacks. See, e.g., Josh Quittner, The War Between alt.tasteless and rec.pets.cats, Wired, May 1994. Second, the Secret Service agent investigating Zeran’s matter suggested it was a random attack. Zeran described the conversation:

[The Secret Service agent] said that—we were kind of in agreement about the—my name being picked—my number at random, because after asking me those questions, he came out and said that it seemed to him my number had been picked at random. I remember when he said that, … that sort of confirmed my thoughts in a real positive way, that my number, in fact, had been selected randomly. And person from the Secret Service, he’s—he seemed to be experienced about this kind of stuff, so when he said that, you know, it sort of reconfirmed what my thoughts were.

Still, this hypothesis seems implausible. The attack on Zeran involved multiple postings over several days, was designed to inflict substantial damage, and involved a phone number that would have been hard for any stranger outside the Seattle metro area to attribute to Zeran. So let’s consider some of the most obvious alternative explanations:

• Romantic Entanglements. At the time of the attacks, Zeran had just started dating a new girlfriend for about six weeks. (Note: I’ve decided not to publish the names of any Zeran’s associates because they are unnecessary to the discussion, and I’m not sure their names have otherwise surfaced publicly). Around the same time, Zeran had another woman friend who was a former romantic partner; Zeran said “it was a casual, friendly relationship.” Maybe I’ve watched too many TV soap operas, but these facts set up several possibilities. Perhaps one of the women was jealous or upset about a possible love triangle; or perhaps one of the women’s current or former significant others felt anger about Zeran’s involvements.

• Competitors/Current Business Partners. Zeran worked on several wide-ranging projects throughout his career, including art, entertainment and real estate. At the time, in 1995, he was launching a new real estate apartment listing resource called “The Apartment Special.” This initiative was muscling into territory occupied by two competitors who also published guides to apartments for rent. Perhaps one of these competitors sought to sideline Zeran, or at least thwart his endeavor?

Zeran was working on other projects in this timeframe as well, including a Halloween-themed television show and the Puget Sound Money Connection, a publication that promoted various financial institutions. Neither project succeeded. Could the attacker have been an unhappy business partner or competitor?

• Other Creditors. Zeran’s financial picture didn’t clearly emerge in the deposition. Ikard objected to all questions about Zeran’s income because Zeran did not seek economic damages. Still, it’s clear that Zeran was in the midst of several ventures that had proven unsuccessful, and as one of the exhibits indicated, “Mr. Zeran is not a wealthy man.” Could some creditor have attacked Zeran over unpaid debts?

• Defendants. In 1993, Zeran sued two former business associates, claiming that they stole copyrighted content from his Apartment Special television show. The case settled, but could the defendants have held a grudge?

Zeran’s diverse professional activities put him in contact with hundreds of other people over his career, and his personal relationships surely involved hundreds more. While the deposition transcript does not suggest any of these people had malice towards him, such a large universe of professional and personal contacts surely contains numerous other suspects who are at least as plausible as the truly “random” attacker.

So who attacked Ken Zeran, and why? We still don’t know; and after more than 20 years, it seems unlikely this cold case will ever be solved.

Eric Goldman is a Professor of Law at Santa Clara University School of Law in the Silicon Valley. He has taught and written about Internet Law for over two decades, and he blogs on that and more at the Technology & Marketing Law Blog [http://blog.ericgoldman.org].

This essay is part of a larger collection about the impact of Zeran v. AOL curated by Goldman and Jeff Kosseff.