New Ebook On Zeran v AOL, The Most Important Section 230 Case

from the read-it,-understand-it dept

Section 230 has become a mainstream discussion topic, but unfortunately many discussants don’t actually understand it well (or at all). To address this knowledge gap, co-editors Profs. Eric Goldman (Santa Clara Law) and Jeff Kosseff (U.S. Naval Academy) have released an ebook, called “Zeran v. America Online,” addressing many aspects of Section 230. You can download the ebook for free at:

• SSRN
• SCU Digital Commons
• Google Play

Zeran v. AOL is the most important Section 230 case of all time. The Zeran case was the first federal appellate decision interpreting Section 230, and its breathtakingly broad sweep turbocharged the rise of Web 2.0–with all of its strengths and weaknesses.

In recognition of Zeran’s importance, in 2017, Profs. Goldman and Kosseff helped assemble an essay package to honor the case’s 20th anniversary. They gathered two dozen essays from some of the most knowledgeable Section 230 experts. The essays address the case’s history and policy implications. Initially, Law.com published the essay package but then unexpectedly paywalled the essays after 6 months.

The new Zeran v. America Online ebook restores the 2017 essay package into a new and easy-to-read format. Together, they are a great entry point into the debates about Section 230, including how we got here and what’s at stake.

To supplement the essay package, the ebook compiles an archive of the key documents in the Zeran v. AOL litigation (with bonus coverage of Zeran’s case against radio station KRXO). Many of these materials have not previously been publicly available in electronic format. The case archives should be of interest both to historians and students of precedent-setting litigation tactics.

Section 230 will likely remain hotly debated, but the debates won’t be productive until we develop a shared understanding of what the law says and why. Ideally, this ebook will advance those goals.

Filed Under: ebook, intermediary liability, ken zeran, section 230, zeran
Companies: aol

The First Hard Case: Zeran V. AOL And What It Can Teach Us About Today's Hard Cases

from the congress-and-the-courts-got-it-right dept

A version of this post appeared in The Recorder a few years ago as part of a series of articles looking back at the foundational Section 230 case Zeran v. America Online. Since to my unwelcome surprise it is now unfortunately behind a paywall, but still as relevant as ever, I'm re-posting it here.

They say that bad facts make bad law. What makes Zeran v. America Online stand as a seminal case in Section 230 jurisprudence is that its bad facts didn’t. The Fourth Circuit wisely refused to be driven from its principled statutory conclusion, even in the face of a compelling reason to do otherwise, and thus the greater good was served.

Mr. Zeran’s was not the last hard case to pass through the courts. Over the years there have been many worthy victims who have sought redress for legally cognizable injuries caused by others’ use of online services. And many, like Mr. Zeran, have been unlikely to easily obtain it from the party who actually did them the harm. In these cases courts have been left with an apparently stark choice: compel the Internet service provider to compensate for the harm caused to the plaintiff by others’ use of their services, or leave the plaintiff with potentially no remedy at all. It can be tremendously tempting to want to make someone, anyone, pay for harm caused to the person before them. But Zeran provided early guidance that it was possible for courts to resist the temptation to ignore Section 230’s liability limitations – and early evidence that they were right to so resist.

Section 230 is a law that itself counsels a light touch. In order to get the most good content on the Internet and the least bad, Congress codified a policy that is essentially all carrot and no stick. By taking the proverbial gun away from an online service provider’s proverbial head, Congress created the incentive for service providers to be partners in achieving these dual policy goals. It did so in two complementary ways: First, it encouraged the most beneficial content by insulating providers for liability arising from how other people used their services. Second, Congress also sought to ensure there would be the least amount of bad content online by insulating providers from liability if they did indeed act to remove it.

By removing the threat of potentially ruinous liability, or even just the immense cost arising from being on the receiving end of legal threats based on how others have used their services, more and more service providers have been able to come into existence and enable more and more uses of their systems. It's let these providers resist unduly censoring legitimate uses of their systems in order to minimize their legal risk. And by being safe to choose what uses to allow or disallow from their systems, service providers have been free to allocate their resources more effectively to police the most undesirable uses of their systems and services than they would be able to if the threat of liability instead forced them to divert their resources in ways that might not be appropriate for their platforms, optimal, or even useful at all.

Congress could of course have addressed the developing Internet with an alternative policy, one that was more stick than carrot and that threatened penalties instead of offering liability limitations, but such a law would not have met its twin goals of encouraging the most good content and the least bad nearly as well as Section 230 actually has. In fact, it likely would have had the opposite effect, eliminating more good content from the Internet and leaving up more of the bad. The wisdom of Congress, and of the Zeran court, was in realizing that restraint was a better option.

The challenge we are faced with now is keeping courts, and Section 230’s critics, similarly aware. The problem is that the Section 230 policy balance is one that works well in general, but it is not always in ways people readily recognize, especially in specific cases with particularly bad facts. The reality is that people sometimes do use Internet services in bad ways, and these uses can often be extremely visible. What tends to be less obvious, however, is how many good uses of the Internet Section 230 has enabled to be developed, far eclipsing the unfortunate ones. In the 20-plus years since Zeran people have moved on from AOL to countless new Internet services, which now serve nearly 90 percent of all Americans and billions of users worldwide. Internet access has gone from slow modem-driven dial-up to seamless always-on broadband. We email, we tweet, we buy things, we date, we comment, we argue, we read, we research, we share what we know, all thanks to the services made possible by Section 230, but often without awareness of how much we owe to it and the early Zeran decision upholding its tenets. We even complain about Section 230 using services that Section 230 has enabled, and often without any recognition of the irony.

In a sense, Section 230 is potentially in jeopardy of becoming a victim of its own success. It’s easy to see when things go wrong online, but Section 230 has done so well creating a new normalcy that it’s much harder to see just how much it has allowed to go right. Which means that when things do go wrong – as they inevitably will, because, while Section 230 tries to minimize the bad uses of online services, it’s impossible to eliminate them all—we are always at risk of letting our outrage at the specific injustice cause us to be tempted to kill the golden goose by upending something that on the whole has enabled so much good.

When bad things happen there is a natural urge to do something, to clamp down, to try to seize control over a situation where it feels like there is none. When bad things happen the hands-off approach of Section 230 can seem like the wrong one, but Zeran has shown how it is still very much the right one.

In many ways the Zeran court was ahead of its time: unlike later courts that have been able to point to the success of the Internet to underpin their decisions upholding Section 230, the Zeran court had to take a leap of faith that the policy goals behind the statute would be born out as Congress intended. It turned out to be a faith that was not misplaced. Today it is hard to imagine a world without all the benefit that Section 230 has ushered in. But if we fail to heed the lessons of Zeran and exercise the same restraint the court did then, such a world may well be what comes to pass. As we mark more than two decades since the Zeran court affirmed Section 230 we need to continue to carry its lessons forward in order to ensure that we are not also marking its sunset and closing the door on all the other good Section 230 might yet bring.

Filed Under: intermediary liability, ken zeran, section 230
Companies: aol

Just Because You Don't Like Something Online, Doesn't Mean We Should Blame Third Parties

from the thinking-through-the-liability dept

Last Thursday and Friday were a pair of very interesting conferences about secondary liability in the Bay Area. On Thursday, there was a one day event all about secondary liability, and on Friday there was the (already mentioned) one day symposium all about Section 230 (which is a law having to do with secondary liability) put on by the High Tech Law Institute at Santa Clara University. This is a big and important topic -- even if it may sound boring if you don't follow specific legal issues. As multiple people pointed out at both events, having strong protections against secondary liability are a large part of what allowed the internet to become so successful. Without these kinds of protections, the simple risk of running an internet company would be quite high, and would certainly limit much of what we see online.

However, not everyone appreciates the reasoning behind secondary liability protections, and a trio of (separate) speakers at Friday's event all focused on their own reasons for disagreeing with the basic premise behind Section 230, with two of them even suggesting that the law should be changed. What troubled me was that I think all three were confusing and conflating different ideas, and doing so in a way that puts some basic First Amendment principles at risk.

Ken Zeran

The first was Ken Zeran, who is famous for his role in Zeran vs. AOL -- the seminal lawsuit that more or less helped define the protections offered by Section 230 of the CDA. Zeran, an artist and a journalist, sued AOL after he was subject to a series of bullying attacks via AOL. Basically, someone anonymously posted some offensive comments (basically speaking out in support of Timothy McVeigh and the Oklahoma City bombings) and included Zeran's phone number. After asking AOL to remove the posts, and having more posts come back, Zeran sued AOL for negligence in failing to remove all such comments. He eventually lost the case, as the court found that AOL, as a third party, was clearly protected under Section 230.

Zeran speaking was a big deal, because for almost fifteen years, he has refused to speak out about the case, turning down all media requests. In fact, he noted that he initially turned down Eric Goldman, who organized this event, but after thinking about it, and realizing who else would be there, he wanted to take part, and read a statement. That statement, however, was quite a doozy. While you can understand why Zeran is upset about Section 230, he seems to have conflated anonymity and the fact that some people do bad stuff online with the idea that (a) anonymity is automatically bad and (b) that anyone who allows anonymity is equally bad.

He called the internet an "engraved invitation for anonymous crime," ignoring the fact that it's really not that anonymous and there are all sorts of tools for uncovering people who have broken the law (something Zeran never did with his own attacker -- who he says he believed was just someone who chose him at random). Zeran did a lengthy bible quote about the "Good Samaritan" in response to the fact that part (c) of Section 230 mentions how it's about protection of "Good Samaritan" efforts. His argument is that Section 230 actually encourages the opposite behavior, in that it encourages service providers to do absolutely nothing to protect people (like himself) online, because they have no liability.

Unfortunately, Zeran is slightly misguided here. He is correct that third parties have no liability, but he is totally misunderstanding the context. Section 230 was put in place due to an earlier court ruling, which said that if a service provider did any editorial work, it could be held liable for the speech of its users. The inevitable result of such a ruling is that service providers would do absolutely no filtering/monitoring whatsoever, because doing any such thing opened them up to liability. What Section 230 does is allow them to monitor and filter what they feel is appropriate, without facing liability. It actually encourages more filtering and monitoring by service providers, by protecting them for their good faith efforts to cultivate the content they host.

From there, Zeran went on to propose an amended version of Section 230, which basically would make any website liable if it didn't take down content when contacted by law enforcement claiming that the content was violating the law. This raised a lot of eyebrows in the room, as it basically hands a ton of power to law enforcement to censor content at will -- something we've noticed law enforcement has a history of violating. Of course, this ignores the fact that Section 230 already does not apply to criminal law violations, so it's difficult to see why his amendment is needed. But making it explicit risks all sorts of dangerous incentives for the government to block expression. Someone in the audience pointed this out, highlighting previous cases of police "protecting friends" by claiming certain claims were violating the law when they were not, and all Zeran could say in response is "well, nothing's perfect." Sure, nothing's perfect, but when you're presenting a law that pretty clearly goes against the First Amendment, you should have a better answer than that.

Zeran, unfortunately, seemed completely oblivious to the idea that his proposed amendment would absolutely be abused to block speech. Mark Lemley, from the audience, pointed out that we already have an example of this with the DMCA's notice-and-takedown procedure for copyright content, and it is abused quite frequently by people seeking to stifle content. Expanding such a regime beyond copyright would almost certainly lead to even greater abuses. Again, Zeran didn't have much in the way of a response beyond "nothing's perfect."

In the end, Zeran was definitely the victim of a tragic circumstance, and as is too often the case in such a situation, his response is to throw out the baby of the First Amendment with the bathwater of abuse. He seems to think that anonymity itself is a bad thing, and spoke out a few times against the concept of anonymity, refusing to acknowledge that anonymity has many positives as well.

Judge Alex Kozinski

Next up in those who are at least, less than enamored with Section 230, was judge Alex Kozinski. Kozinski, as we've mentioned many times before, is an appeals court judge here in the 9th Circuit, and renowned as one of the most entertaining judges on the bench. He's been involved with a few Section 230 rulings, most notably, the Roommates.com ruling, which is one of the very few cases that put a significant limit on Section 230 -- though it's still being argued just how significant that limit is.

He certainly didn't fail to deliver on the entertainment level, tossing out a variety of amusing quips, kicking off with a mention that earlier in the day he'd received an email from Chris Cox -- former Congressional Rep. (and SEC boss) who was an original author of Section 230 -- who was at the event as well, with Cox telling Kozinski that he thought Kozinski got the Roommates ruling right. Kozinski noted that this was sort of like being a Talmud scholar for many years and suddenly receiving a direct message from God saying "it's okay to eat swordfish."

However, he soon drifted into a bit of an anti-230 discussion himself -- which is a bit worrying, considering that he's a judge ruling on cases involving Section 230. It turns out that Kozinski is a bit of a closet luddite. When it was pointed out that many of the wonderful things online are probably only there because of safe harbors like Section 230, he pushed back. He pointed out that the internet really isn't that great, and if he had the option of flipping a switch to turn it off, he's not entirely convinced that he would leave it on. He said he's just not sure it's really done that much good, and that we might be better off without it.

He also made the rather incredible statement, echoing Zeran, asking "where is it written that you have a right to speak anonymously." Of course, many believe that right is embedded within the First Amendment, and many of Kozinski's colleagues on the bench have made that right to anonymous speech pretty explicit in the case law. It's a bit disappointing to see that Kozinski doesn't agree.

Kozinski did point out that many people don't realize what it's like to be the subject of an anonymous internet attack, and people might feel differently if they were. Now, to be fair, Kozinski has been subject to just such attacks, including a highly publicized situation a few years ago in which an anonymous Kozinski-hater got a bunch of attention directed at Kozinski, after discovering that Kozinski had (sloppily) stored a bunch of jokey viral content on a server that he failed to secure, which got twisted into a claim that he had "obscene" content, leading to a rash of misleading press coverage, and an investigation (which eventually cleared him of any wrong doing).

So, perhaps it's understandable that he's not a fan of anonymity online, but like Zeran before him, he seems to conflate anonymity online with "bad activity" online, without acknowledging that plenty of important and valuable speech is made available because it's anonymous. Protecting anonymous speech is quite important, and a federal judge should recognize that. It was pretty disappointing to see judge Kozinski appear to lean the other way.

Nancy Kim

The third in the misguided Section 230 haters was Professor Nancy Kim, who has focused on a very, very small number of websites that have encouraged people to "dish" gossip about others online, and used those as an example of why Section 230 needs wholesale changes. Once again, she seems to think that anonymity automatically means "bad." She even suggested that perhaps sites that allow anonymous comments shouldn't be allowed safe harbors like Section 230's. Beyond just anonymous comment, she seems to dislike "impulsive behavior," suggesting that sites should strive to prevent people from impulsively presenting content, as that, too, is bad.

Like Zeran and Kozinski, Kim seems to be automatically taking a few bad actors, and blaming their bad actions on separate issues (anonymity and impulsive content posting). She also seemed to ignore that there are plenty of non-legal reasons why websites would seek to improve quality of commentary online: because it makes them more credible. She points to some of the "worst" sites like JuicyCampus and AutoAdmit, but doesn't seem to recognize that almost no one took comments on either site seriously, because everyone knew that anyone could write whatever they wanted on those sites, and they were filled with junk that wasn't trustworthy. Instead, she seems to assume that even if the site isn't credible, people automatically believe everything that was written on them. That's just silly. And wrong.

Furthermore, as Cathy Gellis pointed out, Kim (and Zeran) seemed to think that the US government's policy goal should be to promote "culturally beneficial" communication -- but it's not. The government isn't supposed to have a specific role in determining which kind of speech is is okay, and which kind is not. That's the key point behind the First Amendment.

This point was driven home earlier in the day when Paul Alan Levy from Public Citizen was on a panel, and responded to one of many questions asked about "reopening" Section 230 to amend the law. As he pointed out, plenty of people would probably love to "reopen" the First Amendment as well, because they don't like some of the speech enabled by it. However, on the whole, most people who understand and value the First Amendment and the idea of Freedom of Expression recognize that, while it allows speech "we don't like," the end result is that it also enables tons of speech that we do value. The same is true of Section 230. Yes, it allows some "bad" speech to get out there, but there's no way to effectively limit that without causing massive collateral damage as well. Asking to change or hinder Section 230 is no different than asking that we cut back on our free speech rights.

In the end, hopefully these three folks who were skeptical of Section 230 really represent extreme outliers. It certainly appeared that way from the audience, which included a ton of experts in Section 230 who mostly (especially from the Twitter backchannel) were horrified at the suggestions to modify Section 230. However, we should be careful, as there are certainly serious efforts underway to slice up Section 230 and take away this very important tool of free speech. The problem is that most of those attacking Section 230 seem to not understand the basic fact that all it does is make sure liability is accurately placed on those who actually said stuff, rather than a third party. Either that, or as we saw with these three speakers, they seemed to confuse things like anonymity with "bad speech" and assumed that you could somehow use that confusion to carve out "bad speech" without having a serious negative impact on perfectly legitimate speech.

Filed Under: alex kozinski, anonymity, defamation, ken zeran, nancy kim, secondary liability