The Court Case that Enabled Today’s Toxic Internet

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There once was a legendary troll, and from its hideout beneath an overpass of the information superhighway, it prodded into existence the internet we know, love, and increasingly loathe.

That troll, Ken ZZ03, struck in 1995. But to make sense of the profound aftereffects—and why Big Tech is finally reckoning with this part of its history—you have to look back even further.

In 1990, an online newsletter called Rumorville accused a competitor, Skuttlebutt, of being a “scam.” Skuttlebutt sued the online service provider that hosted Rumorville, CompuServe, for publishing false, damaging statements. A judge ruled that CompuServe was not responsible for content that it simply distributed.

A few years later, in the forums of another service provider—remember Prodigy?—an anonymous user called the firm Stratton Oakmont “a cult of brokers who either lie for a living or get fired.” Unlike CompuServe, Prodigy had tried to monitor its message boards. For that reason, when Stratton Oakmont sued, the court held that Prodigy was responsible.

The Feds needed an official policy. Tech lobbyists, who considered the Prodigy decision unreasonably restrictive, pushed lawmakers to adopt the CompuServe standard. They succeeded, and then some: Section 230 of the Communications Decency Act, passed in 1996, states that platforms are not liable for the content they host—even when, like Good Samaritans, they try to intervene. Ken ZZ03 would be its first test.

Days after the 1995 Oklahoma City bombing, Ken ZZ03 posted ads on an AOL message board for T-shirts celebrating the tragedy (“Visit Oklahoma … It’s a BLAST!!!”). To order, the ads said, call Kenneth Zeran, whose phone number was included.

Zeran was a Seattle-based TV producer and artist, and he had nothing to do with the ads. (Ken ZZ03’s motives and identity remain unknown.) Yet tons of people called to berate and threaten him, to the point that police were notified. Zeran asked AOL to take down the messages. AOL demurred. Zeran sued in 1996; a decision was reached in 1997. The judge, invoking Section 230, sided with AOL.

Ask many web scholars and they’ll tell you that Section 230 in general, and the Zeran case in particular, created the modern internet. CompuServe, Prodigy, and AOL became Google, Facebook, and Twitter, companies that have for years relied on Section 230 as a legal shield against claims of publishing abusive content.

Yet the law never could have anticipated the unchecked growth of Big Tech.

In the mid-’90s, AOL was just a bunch of guys “in an office park behind a Cadillac dealership” in suburban Virginia, said their then-lead attorney, Randall Boe, in a recent interview. “We had no idea what was to come.”

CompuServe’s attorney, Robert Hamilton, believes his winning argument was wildly misunderstood by the authors of Section 230, who gave platforms absolute immunity. “It was only a matter of time,” Hamilton says, before Congress would have to make amendments.

In March, Congress passed the first reform of Section 230 in 22 years, saying platforms can be found liable, but only if their users are participating in sex trafficking. Senator Ron Wyden of Oregon, who coauthored Section 230, didn’t support that particular bill but argued nonetheless that tech companies have failed to honor the spirit of the law. “In years of hiding behind their shields … too many companies have become bloated and uninterested in the larger good,” he said. Indeed, under Section 230, it’s fine for tech companies to act like Good Samaritans—they simply forget to.

As for Kenneth Zeran, he doesn’t think about the AOL case much these days. But, he says, “I always felt that I was correct—and that history would show that I was right.”

Michael Fitzgeraldis a writer and editor based in New York.

This article appears in the July issue. Subscribe now.

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