On May 15, the 9th Circuit handed down its decision in Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, where the 9th Circuit bucked the general trend of giving an expansive interpretation of Section 230 immunity.

Section 230 of the Communications Decency Act immunizes online service providers, including web site operators, from liability from most causes of action (except criminal claims and federal intellectual property claims) arising out of their publication of content written by third parties. The statute has almost always been interpreted very broadly. For example, when a listserv operator, who had editorial authority over submitted content, disseminated an allegedly defamatory e-mail written by a third party to subscribers of the listserv, he was held to be immune from the defamation claim even though he made some edits to the content of the e-mail. In another case, Section 230 shielded defendant from defamation liability arising out of her republication on online newsgroups of an allegedly defamatory article authored by a third party, despite the fact that she had been warned that the articles may be defamatory.

However, in the Roommates.com case, the 9th Circuit reasoned that,

“While Roommate provides a useful service, its search mechanism and email notifications mean that it is neither a passive pass-through of information provided by others nor merely a facilitator of expression by individuals. By categorizing, channeling and limiting the distribution of users’ profiles, Roommate provides an additional layer of information that it is ‘responsible’ at least ‘in part’ for creating or developing.”

In other words, Roommates.com had crossed into the territory of becoming an “information content provider.”

But where Roommates.com asks for open-ended questions rather than asking for content via structured forms and then filtering the structured content based on user preferences, the 9th Circuit indicated that this function was okay.

So when a human being sifts through submitted content, limits what entries she wishes to publish and makes some edits to the third party content before she publishes it online, she is immune? But when automated web-based software allows a user to filter through structured content added at the direction of other users, the web site operator can be held liable?

There is a similar case pending before the 7th Circuit. The case was brought against Craigslist under the Fair Housing Act. However, I suspect that the 7th Circuit may distinguish the Craigslist case from Roommates.com, because the questions that the Craigslist service provide are mostly open ended rather than structured, and Craigslist does not have an automated “match” e-mail function.

The Roommates.com holding may diminish the user experience by impacting how search functions are coded, at least in web sites catering to the housing market (and web sites employing structured search functions operated by risk averse operators worried about liability from other theories). What about sites that allow users to input and search for companies’ work environments, for example? Could the operator be setting himself up to be hit with a business disparagement claim without Section 230 protections, because he employs structured forms with pre-set options ranging from the positive to the negative and a means to search for them?

This is unfortunate, because structured inputs provide for a more effective and efficient search function than open-ended inputs. When a user inputs information in a questionnaire, those inputs are entered into a searchable database. Structured inputs, such as checkboxes and pull-down menus create uniform entries in a database and can be filtered more easily than inputs from open-ended questions.

For example, assume there is a pull-down menu next to the following question: “Who would you like to live with?” The choices are as follows: “female”, “male” or “either”. The user cannot choose another option or create alternate wording.

The database entries may look like this:

1. “female”
2. “female”
3. “male”
4. “male”
5. “female”
6. “female”
7. “either”

Now assume that a second user, a female, looks for a roommate. She is asked her gender via a structured form as well, and this form is designed to match the uniform inputs in the database. When she does her search of people looking for female roommates, five entries will show up as compatible: 1, 2, 5, 6 & 7.

Now assume the question is open-ended: “Who would you like to live with?” The user can enter anything, and the entire text is entered into the database. The database entries could look like this.

1. “I would like a female, non-smoking roommate.”
2. “I want to live with a girl. Also, I would prefer someone quiet.”
3. “No guys, okay. I’m sick of people leaving the toilet seat up.”
4. “I prefer to live with a woman. I am a female and I want someone to hang out with as well.”
5. “I am a smoker, so I would like to live with anyone who doesn’t mind me lighting up.”
6. “I would like to live with any person over the age of 25 who is tired of living in an apartment that resembles a college dorm.”
7. “Doesn’t matter. As long as he/she pays the rent.”

A female user seeking someone who is willing to live with a female roommate can only search using an open-ended word search, because there is no other way to sort or filter the profiles. Let’s say she searches for the word “woman.” Only one of these entries, #4, will be returned in the search: “I prefer to live with a woman. I am a female and I want someone to hang out with as well,” even though all of the entries apply.

The Roommates.com holding indicates that the first example will not render a web site operator immune but the second example may be more likely to render a web site operator immune.

From a user’s perspective, the second option would essentially require the user to go through all entries ad by ad. The entire point of a service like roommates.com is to streamline the process of searching for compatible roommates without making the user sift through a bunch of ads. The 9th Circuit’s did not get to the question as to whether a violation of the Fair Housing Act occurred, but the decision opens Roommates.com to liability and may affect how some Internet businesses conduct business.

While the logic of the Roommates.com decision may be sound, there is no question that indexing, searching and filtering functions are essential to how the Internet operates. Congress recognized the value of speech and innovation on the Internet and even included a policy statement encouraging a free market for interactive computer services “unfettered by Federal or State regulation” in Section 230(b)(2). This decision may have frustrated Congress’ intent.