SYLVIE DOUGLIS, BYLINE: NPR.
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BOBBY ALLYN, HOST:
Hey, everyone. This is THE INDICATOR FROM PLANET MONEY. I'm Bobby Allyn.
SHANNON BOND, HOST:
And I'm Shannon Bond. Stacey Vanek Smith is back next week. So Bobby and I are here from NPR's business desk, where we cover tech. And something we've been talking about a lot is this 26-word sentence. It's this one confusing paragraph in an old law that made the Internet what it is, for better and for worse.
ALLYN: Facebook, Twitter, YouTube - they all say they're able to exist because of these 26 very ambiguous and confusing words. And fair warning here, they're very boring. But it's also just 26 words, so let's just get them out of the way. No provider or user of any interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. What?
BOND: I mean, interactive computer service...
ALLYN: Whatever that means.
BOND: ...Information content provider. Like, what is this? Clearly, these words are not how we talk about the Internet today, and that's because they were written when Mark Zuckerberg was just 11 years old, before Google even existed. The year was 1996, back when most people got on to the World Wide Web by using a dial-up connection, back when they fired up their modems to get on America Online or CompuServe or Prodigy.
ALLYN: What these words say, in a nutshell, is a website is not legally responsible for what its users post. These words are why we have social media, but also Yelp, Wikipedia, Amazon reviews. They're the reason why any website that lets people post stuff can exist as they do now. And many people argue these words also enabled the most toxic parts of the Internet - the bullying, the harassment, the spread of disinformation.
BOND: Today on the show, the 26 words at the heart of Section 230 of the Communications Decency Act of 1996.
ALLYN: We'll tell you the story of one man's legal fight and how it turned those 26 words into a shield big tech companies hide behind to this day.
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ALLYN: In April 1995, Ken Zeran's phone started ringing and ringing some more. It just wouldn't stop.
KEN ZERAN: Lots of calls. It wasn't like every second, but it was just lots of calls.
ALLYN: Ken had no idea what was going on. He ran a real estate magazine in Seattle, but these calls had nothing to do with that. These callers were angry. This was the era of landline phones, no caller ID. So he'd answer. And it would just be people screaming and cursing. Often, they'd hang up before he could even figure out why they were so mad.
BOND: He'd eventually learn that it had to do with a post online on the Internet service AOL or America Online. And AOL at that time was filled with lots of message boards. And someone else had posted this message under the screen name KenZZ03 with Ken's real phone number. This early Internet troll was purporting to sell great Oklahoma T-shirts. And this was just days after a domestic terrorist bombing in Oklahoma City killed more than 160 people. These shirts, they were just awful. They had slogans making light of the bombing and saying tasteless things about the victims. And the ads infuriated people.
ZERAN: How could you do this? What a loser you are. I mean, I'm just paraphrasing all of it now. You could use your own sense and think of what they might be saying, given what had just happened in Oklahoma City.
ALLYN: In the post, one troll wrote, quote, "ask for Ken. Due to high demand, please call back if busy." But not only did Ken nothing about this ad, he didn't even use AOL. So he called AOL.
ZERAN: And basically, I told him, you know, my phone's ringing off the hook. And I can't get anything done. And it's all these people upset about something that they saw on AOL.
BOND: AOL took the post down, but another popped up, then another and another, a familiar cat-and-mouse game.
ALLYN: He tried AOL's legal department, the FBI, the Secret Service. He called everyone he could to get these ads taken down. But his phone kept ringing and ringing, dozens of calls a day. Ken started to get freaked out.
ZERAN: I didn't want the thing to go any further and have some...
ZERAN: ...You know, nitwit show up with a shotgun. The problem was AOL would not post something on their server telling their audience that this is a bunch of baloney, a hoax or whatever. And so the calls kept coming.
ALLYN: OK. So Ken thought AOL had a big part to play in this. He said they didn't take the post seriously, even though he told them again and again that this post was causing him so much grief.
ZERAN: And then it became - the whole focus of it became, well, AOL, what are you going to do about it?
ALLYN: So he sued AOL. And he didn't know it at the time, but this lawsuit would eventually form the legal foundation for the Internet we know and don't exactly love today.
BOND: Because Ken lost. As the Fourth Circuit Court of Appeals saw it, being able to sue AOL for what someone posted could be disastrous for the Internet. And the court, it had to make a tough decision. Does it protect Ken and let him go after damages from AOL? And then maybe AOL just shuts down whole message boards because they're too risky. Or does the court protect the Internet as an idea and let these new up-and-coming companies grow without worrying about getting sued over every single thing someone posts?
ALLYN: It can be hard to show just how significant a moment this was, so we called up Jeff Kosseff. He wrote the book - literally - on Section 230. And he says the way the court interpreted the law, it was a big change from how courts treated newspapers and TV and radio. The Internet became an exception.
JEFF KOSSEFF: That's what's really remarkable was that they took this really exceptionalist view by saying, you know, Congress wanted to treat the Internet differently than other media.
BOND: So what he's saying here is if someone had run these same ads about these T-shirts in the classifieds section of a newspaper, Ken could have sued the newspaper. He might not have won that lawsuit, but he could have had his day in court. But what this ruling in Ken's case means is he doesn't even get to argue the merits of his case. He simply cannot sue AOL over these posts, period.
ALLYN: To this day, the Zeran case is the law of the land. It's been cited in opinions 350 times, which every legal expert we talked to said, technically speaking, is a whole lot of citations for a case.
KOSSEFF: What the Zeran case did was it provided the flexibility to these online services to develop their business models around user content and develop their own policies and practices for moderation.
BOND: Which is to say, tech companies can set their own rules about what you can and can't post. But if someone posts something about you on Facebook that you think is abusive or harmful or defamatory, you can't take Facebook to court. Kosseff and many other scholars of the Internet say this decision allowed social media companies and other online sites to grow and grow without worry about the risk of getting sued for what people post.
ALLYN: Yeah. And it also means that if companies like Facebook or YouTube want to get better at patrolling the dangerous stuff on their websites, that's completely up to them. There's no government penalty for being too slow or doing nothing at all.
BOND: Take the Capitol insurrection on January 6. It was planned and documented on social media. And now we're seeing charges, even a guilty plea among the rioters. But who's not getting charged? The social media sites - Facebook, Twitter, Parler - because of how Ken's case interpreted Section 230. So to change the way the Internet works, that means changing the underlying law the case is based on, those 26 words.
ALLYN: And now in Washington, there's a big push to rewrite Section 230 to say, for example, the Internet platforms need to do more to earn this legal shield, like by showing that they have proactive systems in place to remove illegal posts.
BOND: There are a lot of proposals in Congress, and it's not clear what will win out. But change does feel inevitable because getting tough on big tech is one of the few areas these days where there's real bipartisan energy.
ALLYN: And Ken - who, by the way, never found who was behind the trolling - he says he's happy that a fix might be on the way, even though for him it's 26 years too late.
ZERAN: And there's no putting the genie back in of what we have now. But this is what we have, and it's not working well.
BOND: Today's episode of THE INDICATOR was produced by Emma Peaslee and Dave Blanchard. It was fact-checked by Sam Caiand edited by Alex Goldmark. And if you have suggestions for the show or ideas of what you want THE INDICATOR to cover, email us at firstname.lastname@example.org. THE INDICATOR is a production of NPR.
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