“The newest computer can merely compound, at speed, the oldest problem in the relations between human beings, and in the end the communicator will be confronted with the old problem, of what to say and how to say it.” – Edward R. Murrow, quoted by Kenneth Zeran in “The Cultural High Road Along the Internet Landscape in The Pursuit of Happiness,” remarks at 15th Anniversary Conference of 47 Section 230 U.S.C.(a), March 4, 2011, Santa Clara High Tech Law Center.
Twenty years ago the Fourth Circuit decided Zeran v. America Online, a decision which, on the positive side, made possible the internet we have today. On the negative side… it made possible the internet we have today. The destructive culture of incivility and trolling are not an unavoidable consequence of a culture of near-universal online access, but a demonstration of the enormous power of law to shape society.
While the internet had existed in some form since the 1960s, and consumer access through Prodigy, Compuserve, AOL, and others was already widely available in the 1980s, the internet as a mass medium of communication did not really catch on until the invention of the World Wide Web and easily-usable internet browsers in the early 1990s. Human beings being human, one of the early uses to which the new medium was put, like all new media before it, was pornography. (Others, reflecting equally universal human values, were gaming, shopping, and politics.)
In the United States, the ease of online access to pornography, fueled by, inter alia, Time magazine’s infamous “porn panic” cover–led to a demand from concerned voters that Congress do something. What Congress did was enact the Communications Decency Act, an idiotic piece of legislation that ignored the Miller test for obscenity and was, in due course, struck down by the Supreme Court.
Or mostly struck down. Section 230, protecting internet service providers (ISPs) from some forms of liability for content posted by their users, survived and remains part of US law to this day.
In the midst of the rapidly changing world of the 1990s came the terrorist attack on the Alfred P. Murrah Federal Building in Oklahoma City, killing 168 people, including 19 children. The attack created universal outrage, which was especially intense in Oklahoma City.
Beginning six days after the bombing, someone using the name Ken ZZ03 began to post ads on AOL purporting to be from “Ken,” offering T-shirts for sale mocking the bombing and the victims and listing Kenneth Zeran’s home phone number. Zeran, fifteen hundred miles away in Seattle, began to receive harassing and threatening phone calls, which intensified (from an already-high level of about one call every two minutes) after an Oklahoma City radio station, KRXO, broadcast the content of the first posting and urged listeners to call Zeran. Seattle police had to protect Zeran’s house.
Every year, when I teach Zeran, I ask students who they think posted the ads. Students are always quick to suspect an ex-lover or ex-spouse, or possibly a business rival or personal enemy–and eventually come to the sobering realization that no motive was necessary: the poster might have been a bored teenager in Stuttgart or Canberra selecting Zeran to be the victim of a drive-by trolling. In other words, Kenneth Zeran could be any of us; some random stranger on the internet could decide to ruin another random stranger’s life for no reason other than entertainment.
Of course, such conduct is both criminal and tortious. However, locating the perpetrator may be difficult or impossible, and even if located the perpetrator may be judgment-proof or otherwise unreachable. And while the malice of the original poster is the root cause of the harm, the harm would have been minimal without the wider audience provided by AOL and KRXO.
Zeran lost his suit against AOL both at trial and on appeal. The outcome is unsurprising; §230 speaks so directly to this issue that the only surprise is that the case got as far as it did: “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,” 47 U.S.C. sec. 230(c)(1). Both the trial court and the Fourth Circuit correctly applied the statute enacted by Congress; however, both went through considerable agonizing in doing so, because the facts of the case were, to a mid-1990s world not yet inured to far more horrible internet trolling, horrific.
A single throwaway line in the Fourth Circuit’s opinion illustrates the enormous cultural distance between the world of 1997 and the world of 2017: “‘The Internet is an international network of interconnected computers,’ currently used by approximately 40 million people worldwide.” Zeran, quoting Reno. Stop and think about that for a moment: Forty million users, out of a world population, at the time, of nearly six billion. In 1997 roughly one person out of every 150 had access to the internet, and in almost all cases that access was slow and cumbersome, restricted to desktops with wired, usually dial-up, connections. The internet was new, rare, and frightening. Today more than half of the world’s population has internet access, and that access is often mobile, enabling users to be constantly online. In the developed world most people use multiple internet-connected devices on a daily basis; even in the least-connected continent–Africa–a third of the population has internet access (more than in the United States at the time of Zeran), and the widespread use of phone-sharing in Africa as a business model means that far more people probably have at least intermittent access.
Mass internet access was a disruptive event, uprooting and replacing centuries-old industries, business models, and cultural norms. A different result in Zeran–say, a call for legislative change followed by a Congressional repeal of §230–would have slowed the growth of the internet and set it on a different path. ISPs would have had to devote resources to policing content and users, as well as devoting funds to insure themselves against the occasional malicious user, like Ken ZZ03, slipping through. Countless billions of dollars of economic growth would have been delayed or lost. The bulk of internet development might have shifted to other countries with their own legal equivalents of §230.
The trolling of Kenneth Zeran, as terrible as it was, seems almost quaint in light of what has come since, much as the online pornography–mostly slow-loading still images–that inspired the Communications Decency Act seems tame in comparison to the now-universal instant availability of hardcore pornographic videos that we have learned to accept as part of the background noise of our information society. Trolls now email grieving family members animated GIFs of accident victims, with cruel messages calculated to inflict emotional distress; they have driven emotionally vulnerable teenagers to suicide; they have rendered huge swathes of the gaming world unsafe for female gamers. This, too, we have learned to accept as more background noise. We convince ourselves that Gamergate and 4chan, or their equivalents, are simply the price of progress. Horrors that had nearly vanished by the early 1990s, including child pornography and Nazism, have come back. Websites devoted to hate speech played a crucial role in the most recent presidential election and appear to have influence at the highest levels of government. In a pre-internet, pre-Zeran world there could never have been a President Donald Trump.
Slower, more carefully managed internet growth might have achieved the same economic and social benefits without feeding the trolls. Zeran, though, was correctly decided; the fault lay not with the court, but with the sodden mess of political grandstanding and sloppy drafting that was the Communications Decency Act; in this case, bad laws made bad facts.
Aaron Schwabach is Associate Dean for Strategic Initiatives and Professor of Law at Thomas Jefferson School of Law. Schwabach previously taught at the University of Miami School of Law and Gonzaga University School of Law before coming to TJSL. He has published books and articles on topics including international environmental law, intellectual property, Internet law, immigration policy, the life of Thomas Jefferson and the law of Harry Potter.
This essay is part of a larger collection about the impact of Zeran v. AOL curated by Eric Goldman and Jeff Kosseff.