On April 3, the 9th Circuit handed down its eagerly awaited en banc decision in Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, Nos. 04-56916, 04-57173, 2008 WL 879293 (9th Cir. April 3, 2008), holding that Section 230 of the Communications Decency Act does not immunize defendant Roommates.com (“Roommate”) for some of the site’s content because of the way it collected and filtered user information. Namely, the site requires users to identify their gender, sexual orientation and familial status and then uses that information to send e-mail communications to its customers with compatible preferences.

The CDA § 230 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.” Under § 230 an “information content provider” is defined as one who is “responsible, in whole or in part, for the creation or development of” content.

First, the court held Roommate could not be immunized for the questions it posed via drop down menus.

The FHA makes it unlawful to ask certain discriminatory questions for a very good reason: Unlawful questions solicit (a.k.a.“develop”) unlawful answers. Not only does Roommate ask these questions, Roommate makes answering the discriminatory questions a condition of doing business. This is no different from a real estate broker in real life saying, “Tell me whether you’re Jewish or you can find yourself another broker.”When a business enterprise extracts such information from potential customers as a condition of accepting them as clients, it is no stretch to say that the enterprise is responsible, at least in part, for developing that information.

Id. at *4.

Furthermore, the court held Roommate could not be immunized by § 230 based on the way it channeled and filtered information.

Here, Roommate’s connection to the discriminatory filtering process is direct and palpable: Roommate designed its search and email systems to limit the listings available to subscribers based on sex, sexual orientation and presence of children. Roommate selected the criteria used to hide listings, and Councils allege that the act of hiding certain listings is itself unlawful under the Fair Housing Act, which prohibits brokers from steering clients in accordance with discriminatory preferences. We need not decide the merits of Councils’ claim to hold that Roommate is sufficiently involved with the design and operation of the search and email systems-which are engineered to limit access to housing on the basis of the protected characteristics elicited by the registration process-so as to forfeit any immunity to which it was otherwise entitled under section 230.

Id. at *7.

The court arrived at the aforementioned conclusion by defining “development” as follows.

We believe that both the immunity for passive conduits and the exception for co-developers must be given their proper scope and, to that end, 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.”

Id. at *5.

The court, in an attempt to clarify the meaning of “develop” may have broadened (or at least blurred) its definition. Drawing the line as to whether an interactive service provider is a “developer” of information may become more difficult in the future.

However, the 9th Circuit held that Roommate would be immunized by § 230 for what people wrote in response to the “Additional Comments” section, because the input field was open-ended.

Lurking behind the holding could be the view that the internet has matured and is no longer a new medium to be treated with deference in order to let it develop.

The Internet is no longer a fragile new means of communication that could easily be smothered in the cradle by overzealous enforcement of laws and regulations applicable to brick-and-mortar businesses. Rather, it has become a dominant-perhaps the preeminent-means through which commerce is conducted. And its vast reach into the lives of millions is exactly why we must be careful not to exceed the scope of the immunity provided by Congress and thus give online businesses an unfair advantage over their real-world counterparts, which must comply with laws of general applicability.

Id. at *3, n.15.

Ah, the pendulum has indeed begun to swing away from broad § 230 immunity. As most web services gain their functionality through channeling and filtering information, expect plaintiffs to read the holding of this decision broadly.

As noted in the district court opinion, Tucker Max is a professional “asshole” and “drunk” who posts about his exploits on his website, tuckermax.com. Anthony DiMeo III is a party promoter and blueberry farm heir, who threw a New Year’s Eve party in 2005. Unfortunately, the party ended in disaster when the liquor stopped flowing at 10: 30p.m. Mayhem ensued.

The disastrous affair and its unfortunate host, DiMeo, were the subjects of several rude, coarse and irreverent message board posts on Max’s website. One of the more polite posts remarked that “Maybe [DiMeo] should find [his] validation elsewhere… preferably at the end of a magnum.” Other comments were even more unrefined and will not be repeated here. But here is the cite to the district court opinion if you are interested in the scandalous repartee on the message board, which was quoted extensively: DiMeo v. Max, 433 F.Supp.2d 523 (E.D.Pa. 2006).

But onto the law!

DiMeo sued Max for six message board comments that he found offensive and defamatory. However, DiMeo did not allege that Max authored the posts. Instead, he alleged that Max “through his [web site] publishe[d] defamatory statements aimed at Plaintiff….” DiMeo’s claim was dismissed by the district court; there was no question that Max’s website was an “interactive computer service” under 47 U.S.C. §230, and DiMeo alleged that Max published (rather than authored) the offending posts. In a straightforward application of §230, which provides a safe harbor for interactive computer services who allow third parties to post, Max was given immunity, and the blueberry farm heir was voted off the island.

The Third Circuit affirmed the district court opinion on September 19 in DiMeo v. Max, No. 06-3171, 2007 WL 2717865 (3d Cir. Sept. 19, 2007). DiMeo, in his appeal brief, made an argument that Max was an “information content provider” rather than just an “interactive computer service,” because “he solicited and encouraged members of his message board community to engage in defamatory conduct.” This hypothetical exception to the §230 safe harbor was also articulated in the controversial opinion in Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 489 F.3d 921, 928 (9th Cir. 2007). The relevant part of the Roommates.com opinion is quoted below:

Imagine, for example, www. harrassthem. com with the slogan “Don’t Get Mad, Get Even.” A visitor to this website would be encouraged to provide private, sensitive and/or defamatory information about others-all to be posted online for a fee. To post the information, the individual would be invited to answer questions about the target’s name, addresses, phone numbers, social security number, credit cards, bank accounts, mother’s maiden name, sexual orientation, drinking habits and the like. In addition, the website would encourage the poster to provide dirt on the victim, with instructions that the information need not be confirmed, but could be based on rumor, conjecture or fabrication.

It is not clear to us that the operator of this hypothetical website would be protected by the logic of Carafano. The date match website in Carafano had no involvement in the creation and development of the defamatory and private information; the hypothetical operator of harrassthem.com would. By providing a forum designed to publish sensitive and defamatory information, and suggesting the type of information that might be disclosed to best harass and endanger the targets, this website operator might well be held responsible for creating and developing the tortious information. Carafano did not consider whether the CDA protected such websites, and we do not read that opinion as granting CDA immunity to those who actively encourage, solicit and profit from the tortious and unlawful communications of others. [my emphasis]

Oddly enough, the 9th Circuit opinion had advanced the above-mentioned argument merely as an instructive hypothetical and ultimately decided that it need not map the outer limits of protection of websites that solicit and post users’ responses; instead, the 9th Circuit held in Roommates.com that by “categorizing, channeling and limiting the distribution of users’ profiles,” the defendant “provides an additional layer of information” and was therefore responsible in part for the actual creation and development of the allegedly illegal content. However, as a result of the 9th Circuit’s articulation of the hypothetical harrassthem.com fact pattern and holding, aggrieved individuals may latch onto the argument developed in the hypothetical in an attempt to attach liability to online publishers who encourage and solicit complained-of posts but who do not author them themselves. DiMeo may have attempted to do just that.

However, this argument was not even considered by the judge in the Third Circuit, who dispensed with it by noting that DiMeo failed to allege such solicitation and encouragement in the complaint; the Third Circuit did not even cite the Roommates.com opinion. Instead, the Third Circuit based its affirmation on a broad reading of §230 protection, which is in line with the vast majority of §230 case law.