“The Cultural High Road Along the Internet Landscape in The Pursuit of Happiness”
A Commentary by Kenneth M. Zeran
Presented at the 15th Anniversary Conference of 47 Section 230 U.S.C.(a) held on March 4, 2011 at the Santa Clara High Tech Law Center. 47 USC §230 is widely regarded as the most important Internet-specific law. The symposium brought together some of the key historical figures involved in the development of Section 230.(1) Kenneth Zeran (2) was a featured speaker at the event. His career is noted for premiering new technologies in media.(b) See his biography (c) He was invited to speak at the conference about the landmark case- Zeran v. AOL (SYNOPSIS).
I have been invited to speak here today because, as it was expressed- 'it is important that my thoughts be recorded for future historical value'. I was initially concerned because previous media inquiries were fraught with a ‘tabloid’ approach. I have refused all such requests. However, when presented with the nature of this gathering it seemed like an appropriate setting to present an overview of my thoughts. I am delighted to be in the company of so many respected professionals contributing to a serious discussion about a subject important to our culture.
The reason I am here today is concern for the quality of the culture. That is why I initiated legal action 15 years ago in the case Zeran v. AOL (3) . I was a media professional and, as alleged, knew the law had been violated in a new medium. I alleged that those in control of illegal material did not respond in accord with the kind of responsibility inherent with professional media conduct. Indeed, I would not have pursued litigation if I, as alleged, had felt a spirit of a good faith response. I am not here to try the case but to speak to the larger issues of its cultural impact.
I was educated at the Edward R. Murrow College of Broadcasting at Washington State University (4). I studied media law. Such law, not only protects citizens, it also provides the underpinning for the economics of media itself. It is why you are willing to pay money for a media service- you believe what you are reading, viewing, or hearing. Every media professional is well aware of the legal landmines inherent in publishing or distributing untruthful material. It is a well thought, time honored treatment of the First Amendment (5) that has served the United States.
Enter the Internet (6). The Internet is broadcasting and publishing- make no mistake about it. A computer can transmit content to a wide audience. But it is very different in consideration of the tool used to transmit that content. The tool, of course, is the computer and it empowers every user to be a broadcaster or publisher to an unlimited audience. The question is- do we want to apply the same principles to this latest form of broadcasting and publishing?
Edward R. Murrow, (7) perhaps the most respected broadcast communicator in our nation’s history, once said: “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.” (8)
Murrow, and I, are not just referring to journalism, but “relations between human beings”.
Cultural Anthropologists often refer to human evolutionary periods based upon the development of tools (9) . I submit that, ‘Digital technology’ (10) is a decisive point of demarcation in the human timeline. We are experiencing the dawn of that tool in the hands and minds of human beings.
I found myself in an important role in this early setting. I was fortunate to premier the application of digital technology in television production to the nation on the CBS Television Network (11) in the 1970’s. Its impact was stunning and riveted audiences. Pictures were changing shapes and moving around the screen and appearing in multiples. It changed television forever.
I remember revealing the new technology in executive headquarters at CBS with an important group anticipating what was to be a new ‘look’. There was a lot at stake. The tape rolled and when it was over you could have heard a pin drop. Hushed wide-eyed executives turned toward the aging president who reverently leaned forward and said “Holy Cow.... let’s see that again!” Within eight months every local station and auto dealership’s advertisers in America were using the technology. I remember thinking about Jean Cocteau (12) of the French Avant-Garde exploring his "algebra" concerning human needs and realities in communication saying that, “Americans are funny people. First you shock them, then they put you in a museum”.
So the digital world is all about us. The question is- what human values do we want to apply to it for the good of society. Gathered here are some of the best and brightest legal minds on the subject. I would like to contribute from a 'Communications' background.
I have spent a career working to enlighten our culture and expose new technologies. When I was commissioned to create an artwork to celebrate the country’s bicentennial I made sure that it was centered on Thomas Jefferson’s handwritten draft and the words- “The pursuit of happiness” (13) . That is what I want for all Americans, including myself. I felt strongly enough that I spent time with litigation pursuing that high road.
I believe it is wanting.
It is wanting for a number of reasons. Some of them so compounded as to exemplify the phrase “You can’t see the forest for the trees”. Let’s take a walk into that forest.
It is an interesting phenomena- the better nature of ourselves leads us to believe that technological advancements will bring out the best in human potential. But just as the symbol of theatre, the ‘comedy-tragedy mask’ teaches us- there is also a dark side. The underbelly of the Internet is an engraved invitation for anonymous crime- not anonymous speech, but anonymous crime.
Americans were outraged when obscenities and child pornography began appearing on computer screens and looked to Congress for a fix- and the result was legislation known as the CDA- Communications Decency Act (14) . Much of the legislation was struck down by the Supreme Court. It was naïve. My thought is echoed by Lawrence Lessig (15) , legal scholar on the Internet, and author of Code 2.0 (16), his book about the ‘change from a cyberspace of anarchy to a cyberspace of control’(17) noted the CDA as “A law of extraordinary stupidity, the CDA practically impaled itself on the First Amendment.”(18)
The CDA was noble in its intent but just as naïve as the surviving Section 230. I think the reason we are gathered here today discussing it, testifies that it is ‘wanting’.
As you know, the law is the result of a reaction to cure Stratton-Oakmont v. Prodigy (19) - a real ‘Catch 22’ brought on by a train wreck of traditional media law's application to the new. I don’t believe Congress, primarily, and for that matter, most judges and legal minds, understood the dynamics inherent in the functionality and capabilities of interactive computing in those days or as Lessig put it- “Cyberspace demands a new understanding of how regulation works. It compels us to look beyond the traditional lawyer’s scope- beyond laws or even norms.” (20)
Congress didn’t need a cure for a single legal case, it needed to start from scratch in comprehending a new day had dawned. While it professed a desire that the Internet be allowed to flourish, it failed to consider the new empowerment of anonymity and what that could mean. This was also expressed in Blown to Bits, Your Life, Liberty, and Happiness after the Digital Explosion (21) - an excellent work by Hal Abelson, Ken Ledeen, and Harry Lewis. They wrote: “… the law hasn’t caught up to the technology”.(21a)
The book also refers to a case in Florida’s Supreme Court (22), decided by Zeran v. AOL, where a dissenting opinion said that a sequence of decisions “thrusts Congress into the unlikely position of having enacted legislation that encourages and protects the involvement of ISP'’ as silent partners in criminal enterprises for profit”(23) .
The statute is paradoxical. Examine the term Congress chose to title Section 230- “The Good Samaritan Act”.
“There was a scholar of the law who stood up to test him and said, "Teacher, what must I do to inherit eternal life?" Jesus said to him, "What is written in the law? How do you read it?" He said in reply, "You shall love the Lord, your God, with all your heart, with all your being, with all your strength, and with all your mind, and your neighbor as yourself." He replied to him, "You have answered correctly; do this and you will live." But because he wished to justify himself, he said to Jesus, "And who is my neighbor?" Jesus replied, "A man fell victim to robbers as he went down from Jerusalem to Jericho. They stripped and beat him and went off leaving him half-dead. A priest happened to be going down that road, but when he saw him, he passed by on the opposite side. Likewise a Levite came to the place, and when he saw him, he passed by on the opposite side. But a Samaritan traveler who came upon him was moved with compassion at the sight. He approached the victim, poured oil and wine over his wounds and bandaged them. Then he lifted him up on his own animal, took him to an inn and cared for him. The next day he took out two silver coins and gave them to the innkeeper with the instruction, 'Take care of him. If you spend more than what I have given you, I shall repay you on my way back.' Which of these three, in your opinion, was neighbor to the robbers' victim?" He answered, "The one who treated him with mercy." Jesus said to him, "Go and do likewise."
As the namesake, this gospel is instructive in viewing Section 230. It is indeed instructive to the very process itself in reviewing Section 230. Biblical scholars explain that Jesus was actually changing the law, also known as the ‘Great Reversal’(26) . The Levite and priest were bound by law not to touch the dying man. The parable actually negates the commonly held belief system and challenges followers to view the world in a different way. Jesus is asking those that question him to leave behind traditional law and embrace a compassionate way of living. (27)
So in light of Congress using the ‘Good Samaritan’ to explain its intent and purpose- think about the following:
Did Jesus mean that it is ok for the priest and Levite to either help the dying man or not? That they would not be liable of breaking the ‘new’ law by failing to respond to the dying man? Is that the lesson?
In statements made in the landmark case Zeran v. AOL, The United States District Court’s Opinion (28) noted that “By AOL’s lights, it is immune from state common law liability for any material on its network as long as that material was put online by a third party. And this is so, AOL’s counsel contended, even if AOL knew of the defamatory nature of the material and made a decision not to remove it from the network based on a malicious desire to cause harm to the party defamed.” (29)
Is this what Jesus meant? Was Jesus focused on a third party who injured the man? Is this what Congress meant?
This is exactly what Section 230 says. One is NOT required to help the ‘dying man’. AOL’s counsel, in a courageous legal move, drove home the point. It also makes my case today. Section 230 has turned the parable and its own namesake upside down.
The paradox of Zeran v. AOL was referenced in Blown to Bits, Your Life, Liberty, and Happiness after the Digital Explosion- “Congress had given the ISP’s a complete waiver of responsibility for the consequences of false and damaging statements, even when the ISP knew they were false. Had anyone in Congress thought through the implications of the Good Samaritan clause?”(30)
Whatever else what one might think, history says this is a nation of laws founded upon Judeo-Christian ethics.(31) Amen.
Let us also remember what my friend, the great surrealist Salvador Dali (32) once said- “Don’t worry about perfection- - You’ll never obtain it!” But we can try! Isn"t this why we are all here today?
Another of those ‘imperfections’ of Section 230 is that it was contemplated and developed by attention to the wrong word. It was focused on the term ‘monitor’(screening, filtering, and blocking). It was used over and over including court opinions. The word should have been ‘respond’. The intent of Congress was to defeat illegal material. ‘Monitoring’ presents a burden. ‘Response’ does not.
Any non-geek using Google (33) or any search engine, knows of the 'responsive' power to interrogate a database or server. A system administrator (34) can search a server in fractions of seconds. It is called an ‘Expression Code’(35) . It has been around for a long time, including 1995. It is very easy to search and find a name or some useful reference on a server and quarantine it or delete.
The notions of Congress and even the courts, seemed stuck within the application of the machination limitation of traditional media to the new.
The Fourth Circuit Court of Appeals opinion (36), in addressing notification response to defamatory statements said, in part, “Although this might be feasible for the traditional print publisher, the sheer number of postings on interactive computer services would create an impossible burden in the Internet context.”
I Googled my name the other day and came up with 6,729 entries- a "sheer number of postings"- in 0.11 seconds. That is faster than a speeding silver bullet. As stated above, it is under- whelming to interrogate material on a server. If it were “impossible”, as the judge opined, we would not have the likes of Google today.
The coup de grâce of imperfections of Section 230’s Good Samaritan provision is the inability to provide a dependable remedy for unidentifiable anonymous criminal content. Indeed, the act itself, contains the following in (c)(5)
“It is the policy of the United States (5) to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.” (37)
What about such content placed by an unidentifiable anonymous source? There is no mechanism in the statute to assure its prompt removal. The owner of the server does NOT have to act. There is NO civil liability for inaction. It defeats the above stated policy of the United States. This is what is alleged to have happened in Zeran v. AOL.
The Solons did not appear to have considered what to do about anonymous computer crime. Law Enforcement acknowledges that anonymous computer crime is a vexing problem. It is all too easy to hide identity through proxy servers (38), wireless routers (39), public computer use, and untold other methods.
The following gripping hypothetical proves how inadequate Section 230 is for carrying out the policy of the United States. You don’t need to pack a parachute, just use your imagination:
A federal judge is going about his duties in his chamber when he receives an urgent call. It is his shaken wife on the line. He is quite concerned and proceeds to calm his spouse to find out what is wrong. She proceeds to tell him their daughter is hysterical. The daughter is receiving disturbing emails and being harassed by obscene phone calls, the home is being stalked, it is a ‘parade of the horribles’.
It seems that someone has photo-shopped (40) the daughter into a pornographic scene, published an 'invitation' onto a specific server on the Internet, along with a map showing location of the home, images of the house, phone number, names, etc. How do you think the judge would respond?
He would probably take a deep breath- count to ten really fast - and do what you or I would do. He would find out where the obscene material was appearing on the Internet and contact those controlling the server broadcasting the material and demand removal. He could be told: “We are not the publishers” or “We are not speakers of third party content. Sorry.” Then, upon requesting the identity of the source responsible for the material, he could be told “Ahhh ….we don’t know- but we have immunity from civil liability because Congress protects us via the "Good Samaritan Act".
The lengthy delay in obtaining a court order to bring in law enforcement permits so much time to lapse that the replicating digital powers of the Internet have thoroughly ruined his daughter's reputation. And there is no remedy for the judge and his family.
This scenario illustrates how ineffective Section 230 is in carrying out the intended policy of the United States.
I want to be a Good Samaritan and do what Charles Dickens did based upon his experiences as a litigant seeking to enforce copyright protection. He wrote Bleak House which played a role in legal reform.
Today, I am acting as a 'Good Samaritan'. I want to come to the aid of Section 230 itself. I am proposing an amendment to the section that will permit its noble intentions.
The Internet is part of our every day life. As such, it should be treated like every other element of our lives. When something goes wrong or someone is in harm’s way we appeal to law enforcement for help. There is no delay in waiting for a court order. It should be given the same authority to do what Congress stated in Sec.230:
Once again everyone- “It is the policy of the United States to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer."
Citizens deserve better than being at the benevolent mercy of the possession of a server carrying harmful and illegal material, whether it was placed there anonymously, or not. There needs to be a dynamic mechanism in place to close this glaring loophole and this amendment provides it.
The proposed amendment recognizes State’s rights in that local law enforcement would interact with Federal agencies. The FBI (41) has exclusive jurisdiction over Internet harassment. This mechanism is in place now. Local authorities interact with Federal law enforcement but with limitations.
This would also remove the courts’ concern over ‘the burden’ of content providers dealing with ‘a sheer volume of complaints’. There are penalties for making false reports to law enforcement. Local law enforcement, as it does with all matters, would respond, make a reasonable judgement and take appropriate action.
Assuming the server is located beyond state lines, the FBI’s bureau of Internet crime would contact the computer server broadcasting the material and direct the material to be removed. So everyone is protected under the 'Good Samaritan' clause.
The server must remove the material or face civil liability.
This amendment brings together the good sense of traditional media law in place before the CDA and the true intention of Congress in Section 230. It leaves the Section intact. It does not intrude on the First Amendment. It protects the interests of everyone except the offending entity (most likely an unidentifiable anonymous entity).
The following is Section 230 as it exists with the modifications in bold face type.
SEC. 230. PROTECTION FOR PRIVATE BLOCKING AND SCREENING OF OFFENSIVE MATERIAL.
(a) FINDINGS- The Congress finds the following:
(1) The rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens.
(b) POLICY- It is the policy of the United States--
(1) to promote the continued development of the Internet and other interactive computer services and other interactive media;
(c) PROTECTION FOR `GOOD SAMARITAN' BLOCKING AND SCREENING OF OFFENSIVE MATERIAL-
(1) TREATMENT OF PUBLISHER OR SPEAKER- 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.
(d) RESPONSE TO FEDERAL LAW ENFORCEMENT-
(1) CIVIL LIABILITY- A provider or user of an interactive computer service shall be held liable on account of –
(e) EFFECT ON OTHER LAWS-
(1) NO EFFECT ON CRIMINAL LAW- Nothing in this section shall be construed to impair the enforcement of section 223 of this Act, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of title 18, United States Code, or any other Federal criminal statute.
* * * *
Don’t we want a culture that takes the high road? Maintain the values of our forefathers and honor those preceding us while enlightening now and future generations. America has led the world in paving the way for freedom of expression. The First Amendment is the most cherished prize of that ideal. As new communication technologies develop we need to ensure the principles of a civilized democracy endure. We should take heed of Edward R. Murrow’s words about “the oldest problem in the relations between human beings…” We should not be mastered by technology- but master technology. Our constitution should inform its values.
The digital age has dawned. The human race is advancing forward in a timeline of evolution, early into a new chapter. The world is now a global village traversed by a cyber landscape and America needs to illuminate the way in the 'Pursuit of Happiness'.
Copyright © 2011 Kenneth Michael Zeran
(This document is edited and referenced)
a. See http://law.scu.edu/hightech/47-usc-230-a-15-year-retrospective.cfm
39. Wireless Router Definition - http://www.pcmag.com/encyclopedia_term/0,2542,t=wireless+router&i=54783,00.asp
The case of Zeran (plaintiff) v. AOL (defendant) is historically significant because it tested a new law, the Communications Decency Act of 1996 to determine liability for Internet content.
The background of the case is that an unidentified member of AOL posted 'Shirts for sale' glorifying the bombing in Oklahoma City of the Murrah Building in April, 1995 and attributed them to Zeran's first name and phone number. There was a volume of calls. Zeran, a non-member of AOL, contacted the Internet company and requested removal. Zeran alleged that AOL's response was insufficient and did not remove the material in a reasonable amount of time. New postings followed and a radio station in Oklahoma City, broadcast the postings. The postings resulted in more calls.
Zeran sued AOL on the grounds that AOL had violated media law standards of 'Distributor Liability' based upon 'notice based' liability that it was distributing libelous material- "a distributor must have knowledge of the contents of a publication before liability can be imposed for distributing that publication".
AOL, in defense, relied on a (then) new statute of the CDA known as Section 230 which states: "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."
Zeran also held that the events took place prior to passage of the CDA. in spite of the complaint being filed two months after it was signed into law..
The District Court affirmed AOL's defense and the case was appealed to The FourthCircuit Court of Appeals where the district court's decision was affirmed. Zeran petitioned the United States Supreme Court but the petition was denied.
The case became the 'instruction' for courts to follow regarding liability for illegal content on the Internet. The decision has been one of great interest because of the unique way it treats responsibility for content on the Internet and the question of anonymous criminal content.