June/July 2008

Ninth Circuit: Web Sites Designed to Encourage Illegal Content Will Not Enjoy Communications Decency Act Immunity

Holland & Knight Newsletter
Shelley G. Hurwitz
An en banc federal appeals court has held that the Communications Decency Act (CDA) does not afford a Web site immunity from liability for certain information that it helps others develop for posting.
 
In Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, two fair housing monitoring groups sued Roommates.com alleging violations of the federal Fair Housing Act and California housing discrimination laws. Roommates.com operates a Web site designed to match people renting out spare rooms with people looking for a place to live. The groups claimed that Roommates.com is essentially a housing broker that does on-line what the law prevents others from doing off-line: asking subscribers – through the use of a drop-down menu before they can search listings or post housing opportunities – to disclose their sex, sexual orientation and whether they plan to have children living in a household.
 
Section 230(c) of the CDA immunizes providers of interactive computer services against liability arising from content created by third parties. The statute provides: “No provider ... of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” This grant of immunity applies only if the interactive computer service provider is not also an “information content provider,” which is defined as someone who is “responsible, in whole or in part, for the creation or development of” the offending content. Roommates.com and other Web site operators have been included in the case law as being within the general scope of CDA immunity.
 
Writing for an 8-3 majority, Chief Judge Alex Kozinski of the Ninth Circuit found that two of the functions performed by Roommates.com – the questions posed to prospective subscribers during the registration process that requires them to divulge their sex as well as other personal characteristics and the display of subscribers’ preferences in this regard – defeated application of immunity in this case. By creating the questions and choice of answers, the Web site operator, according to the court, became an “information content provider.” By developing the discriminatory questions, eliciting discriminatory responses and utilizing discriminatory search mechanisms, Roommates.com distinguished itself from those that merely provide a framework for proper or improper content, the court said. “Roommate’s website is designed to force subscribers to divulge protected characteristics and discriminatory preferences, and to match those who have rooms with those who are looking for rooms based on criteria that appear to be prohibited by the FHA.”
 
The court held, however, that another function of the Web site prompting subscribers to personalize the profile by describing themselves and the type of roommate they are looking for – in a blank text box – did enjoy immunity under the CDA. The distinction, according to the court, is that in this portion of the Web site Roommates.com does not provide any specific guidance as to what the essay should contain, nor does it urge subscribers to input discriminatory preferences.
 
Warning that “[t]he Communications Decency Act was not meant to create a lawless no-man’s-land on the Internet,” the court said it wanted to deliver a “clear” message to Website operators: “If you don’t encourage illegal content, or design your website to require users to input illegal content, you will be immune.”
 
Judge M. Margaret McKeown dissented, proffering her own warning that the “majority’s unprecedented expansion of liability for Internet service providers threatens to chill the robust development of the Internet that Congress envisioned ... [I]nteractive service providers are left scratching their heads and wondering where immunity ends and liability begins.”

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