Apr
4
9th Circuit says CDA does not shelter Roommates.com
Posted by Irene Soto at 9:14 am under Internet, Litigation.
Big loss for Roommates.com, internet forums, and ISPs yesterday.
[Background: The touchstone of § 230(c) of the Communications Decency Act (CDA) is that providers of internet computer services are immune from liability for content created by third parties. The immunity applies to a defendant who is the “provider… of an internet computer service” and is being sued “as the publisher or speaker of any information provided by” someone else. 47 U.S.C. § 430(c). The Ninth Circuit has held that a provider of an internet computer service is immune so long as it merely publishes information by its members. Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003). If, on the other hand, the “provider” is responsible, in whole or in part, for creating or developing the information, it becomes a content provider and is not entitled to CDA immunity.]
Roommates.com asks users about their gender, marital status and sexual orientation, and allows them to filter results of potential roommates based on these answers. According to the court, Roommates.com is therefore actively soliciting discriminatory content, making it more than a passive transmitter of information, and ineligible from the CDA safe harbor.
But wait, doesn’t Craigslist do the same thing? Craigslist also permits users to advertise and select roommates based on race and sexual orientation, so why did a court find them immune from liability last month? The difference is simple (trivial, perhaps): Craigslist’s does not have pre-populated dropdown boxes, only text boxes allowing users to write whatever they want.
Chief Judge Alex Kozinski wrote: “Unlawful questions solicit … unlawful answers.” “The message to website operators is clear: If you don’t encourage illegal content, or design your website to require users to input illegal content, you will be immune.” But is it the content that is illegal or the way in which the content is used? And who is directing the content to be used in that way?
I fear that decisions like this will lead to an internet that looks like a chalkboard, allowing users to write whatever they want, without any guidance, instruction, or opportunity to refine/limit/perfect their content.
Next, a lower court will determine if Roommates.com actually violated the Fair Housing Act. For this website, all internet forums, and Web 2.0 generally, keep your fingers crossed.
Here’s the report from Wired.