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‘Zeran v. AOL’: The Anti-Circumvention Tool

If I were an expert survivalist who was offered one tool to survive alone in the elements, I would probably choose a fire starter … but maybe a knife, a pot, or duct tape. Really, I would want all of those items because no one tool has the versatility I would want. But, for an expert in defending website operators from against claims, choosing one tool is easy. Zeran v. AOL is the survivalist’s kit for websites. Fortunately, lawyers almost never find ourselves in a situation where we can only cite one case. But if that were to happen, the Fourth Circuit’s thorough and well-reasoned decision in Zeran would likely be the one case I would choose.

Ever since Congress passed 47 U.S.C. §230, a federal law that says, “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,” creative lawyers have been searching for ways to circumvent the statute and nab website owners for the bad acts of their users. An often-made threat from attempted §230 circumventors is “this case is different.” Some assertions I often hear as to why §230 won’t protect my client in their “unique” situation are that his client asked for removal of the offending content, her client’s business was destroyed, my client said it would remove the post, my client refused to identify the author, or my client edited the post. All of these claims were eradicated twenty years ago in a single court decision in the Zeran case.

The most sure-fire way to plead around §230 and at least survive an early motion to dismiss is to allege that the service provider is the “information content provider.” 47 U.S.C. §230 defines the information content provider as any person or entity that is responsible, in whole or in part, for the creation or development of the content. Early case law, including Zeran, played a critical role in making clear that in order to be responsible for the creation or development of the content, the content had to originate with the service provider. “By its plain language, §230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party use of the service.” Zeran at 330. Had the Fourth Circuit defined “responsible” for the “development” in a broader fashion, that may have changed the course of case law history. As noted by the Ninth Circuit in Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008), “It’s true that the broadest sense of the term ‘develop’ could include the functions of an ordinary search engine — indeed, just about any function performed by a website.” Citing the Zeran Court’s early guidance, courts have instead adopted a far narrower definition.

We interpret the term “development” as referring not merely to augmenting the content generally, but to materially contributing to its alleged unlawfulness. In other words, a website helps to develop unlawful content, and thus falls within the exception to section 230, if it contributes materially to the alleged illegality of the conduct. 

Roommates, 521 F.3d at 1167-68 (emphasis added) 

As the Sixth Circuit stated in Jones v. Dirty World, 755 F.3d 398 (6th Cir. 2014), again citing Zeran, to define the term development broadly “would defeat the purposes of the CDA and swallow the core immunity that §230(c) provides for the exercise of a publisher’s traditional editorial functions.”

When attempting to circumvent §230 in making claims against the host of a website, a popular argument is that the website that encourages or solicits the content is, therefore, responsible for the development of the content. This argument evolved from a strained reading of the Ninth Circuit’s decision in Roommates and more directly from the Tenth’s Circuit’s holding that a service provider is responsible for the development of offensive content “if it in some way specifically encourages development of what is offensive about the content.” F.T.C. v. Accusearch Inc., 570 F.3d 1187, 1199 (10th Cir. 2009).

Initially, this argument got some traction. Relying on Roommates and Accusearch, the District of Kentucky Court adopted an encouragement test holding that:

Although Courts have stated generally that CDA immunity is broad, the weight of the authority teaches that such immunity may be lost. That is, a website owner who intentionally encourages illegal or actionable third-party postings to which he adds his own comments ratifying or adopting the posts becomes a “creator” or “developer” of that content and is not entitled to immunity. 

Jones v. Dirty World Entm’t Recordings, 965 F. Supp. 2d 818, 821 (E.D. Ky. 2013), rev’d and vacated, 755 F.3d 398 (6th Cir. 2014). 

The encouragement test did not survive appeal though. The Sixth Circuit dealt it a death blow stating, “we do not adopt the district court’s encouragement test of immunity under the CDA.” The Court explained that there is a crucial distinction between the traditional publisher actions that Zeran and other courts held were protected under §230 and actual responsibility for what makes the displayed content illegal or actionable. Jones, 755 F.3d at 414.

Playing on the definition of development, another popular circumvention technique is to plead that a website operator is the information content provider because it edited the content. Here again, Zeran is the tool of choice. The Fourth Circuit held that “lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions—such as deciding whether to publish, withdraw, postpone or alter content—are barred.” Zeran at 330. This language laid the ground work for later cases to hold that merely editing content does not make an interactive service provider the developer of the content and hence the information content provider, unless the service provider materially contributed to the alleged unlawfulness of the content. Indeed, every published case that has rejected the argument that editing, altering, modifying, and deleting content makes the service provider an information content provider, has cited the Zeran case. SeeDoe v. Friendfinder Network, 540 F. Supp. 2d 288, 297 (D.N.H. 2008); Batzel v. Smith, 333 F.3d 1018, 1027 (9th Cir. 2003); Ben Ezra, Weinstein, & Co. v. Am. Online, 206 F.3d 980, 986 (10th Cir. 2000); Blumenthal v. Drudge, 992 F. Supp. 44, 51 (D.D.C. 1998).

The versatility of Zeran as a tool is perhaps best illustrated through the fact that it has been cited at least 259 times by other courts. Section 230 itself has been cited 645 times, meaning that Zeran has been cited in 40 percent of all §230 cases. So if you find yourself stranded on a virtual island fending off enemy attacks, turn to the well-trusted leader in protecting websites as your best survival tool. 

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