Earlier today the U.S. Court of Appeals for the Ninth Circuit, in Fair Housing Council of San Fernando Valley, et al v. Roommate.com, LLC, issued an en banc ruling that rejects the majority of the website’s assertions of Section 230 immunity. For purposes of this (lengthy) post, I will assume you are familiar with the facts of the case and previous rulings. If not, check out my summary of the three judge panel’s May 2007 decision reversing the District Court’s application of Section 230 immunity.
The en banc panel here consisted of eleven Circuit Judges: Alex Kozinski, Stephen Reinhardt, Pamela Ann Rymer, Barry G. Silverman, M. Margaret McKeown, William A. Fletcher, Raymond C. Fisher, Richard A. Paez, Carlos T. Bea, Milan D. Smith, Jr. and N. Randy Smith.
The Court’s opinion was authored by Chief Judge Kozinski, and a partial Concurrence/partial Dissent was issued by Judge McKeown, who was joined by Judges Rymer and Bea.
The bottom line you ask? Jump to page 28 of the slip opinion, wherein the Court advises that “[t]he 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.” Now for the loooong version, which excludes any consideration of the partial concurrence/dissent (maybe later).
We are of course dealing with a statute here, and the Court appropriately begins by asking what Congress had in mind when it enacted the law.
In passing section 230 . . . Congress sought to immunize the removal of user generated content, not the creation of content: “[S]ection  provides ‘Good Samaritan’ protections from civil liability for providers . . . of an interactive computer service for actions to restrict . . . access to objectionable online material.” (quoting from a 1996 Conference Report)
I’m not so sure the “Good Samaritan” phrase is properly applied to Section 230(c)(1), but I think the point being made here is valid: In the online context, acting as an editor is generally protected. Acting as an author is not.
The Court proceeds to consider the challenged portions of the Roommates.com website. As to the questions asked of prospective subscribers during registration (disclosure of sex, family status, and sexual orientation), including the choice of answers provided by Roommates.com and offered in pull-down menus, the Court opines that
Roommate created the questions and choice of answers, and designed its website registration process around them. Therefore, Roommate is undoubtedly the “information content provider” as to the questions and can claim no immunity for posting them on its website, or for forcing subscribers to answer them as a condition of using its services. . . . The CDA does not grant immunity for inducing third parties to express illegal preferences. Roommate’s own acts—posting the questionnaire and requiring answers to it—are entirely its doing and thus section 230 of the CDA does not apply to them. Roommate is entitled to no immunity.”
Although it is purportedly just focused on the question of whether immunity applies, the Court further notes that “asking questions certainly can violate the Fair Housing Act and analogous laws in the physical world.” More on this apparent divergence from the topic at hand (immunity) later.
The Court considers Roommates.com’s role as a developer when considering its subscribers’ profiles:
Although it is the subscriber that has answered the questions that are ultimately displayed in his or her profile, same “does not preclude Roommate from also being an information content provider by helping “develop” at least “in part” the information in the profiles. . . . By any reasonable use of the English language, Roommate is “responsible” at least “in part” for each subscriber’s profile page, because every such page is a collaborative effort between Roommate and the subscriber.
In other words, according to the Court, Roommates.com has again crossed the Section 230 line:
By requiring subscribers to provide the information as a condition of accessing its service, and by providing a limited set of pre-populated answers, Roommate becomes much more than a passive transmitter of information provided by others; it becomes the developer, at least in part, of that information. And section 230 provides immunity only if the interactive computer service does not “creat[e] or develop” the information “in whole or in part.”
The Court also declines to extend immunity to Roommate.com’s operation of its search system and email notification system. Observing that “Roommate designed its search system so it would steer users based on the preferences and personal characteristics that Roommate itself forces subscribers to disclose[,]” the Court addresses head-on the key question of when does a website create or develop information:
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.” [I think this language explains the Court’s interest in the underlying legality of some of Roommate.com’s alleged actions here].
The preceding paragraph is a significant, uh, development in Section 230 jurisprudence, and merits close attention. What it seems to be saying is that for purposes of determining whether Section 230 immunity applies, we don’t just look at whether the site created the subject content. We must also examine whether the website “contributed materially to the alleged illegality of the conduct.”
Based upon this new standard, the Court rules that Roommate.com “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.” Rejected again.
However, the Court does rule that Roommate.com is immune to claims based upon third party submissions under the “Additional Comments” section of the site.
The case concludes with what could be construed as both a warning to the plaintiffs’ bar and an encouraging word (?) to website operators:
[T]here will always be close cases where a clever lawyer could argue that something the website operator did encouraged the illegality. Such close cases, we believe, must be resolved in favor of immunity, lest we cut the heart out of section 230 by forcing websites to face death by ten thousand duck-bites, fighting off claims that they promoted or encouraged—or at least tacitly assented to—the illegality of third parties . . .. [I]n cases of enhancement by implication or development by inference—such as with respect to the “Additional Comments” here—section 230 must be interpreted to protect websites not merely from ultimate liability, but from having to fight costly and protracted legal battles.
The Court remands the case to the District Court for a consideration of the claims not immunized by Section 230.
I’m still digesting this thing (and may alter some of this post upon further reflection), but will say that I definitely anticipate a certiorari petition in the not too distant future. In the meantime, I recommend you give the opinion a read. Check out the favorable language directed at search engines and sites that, like Roommate.com and the one in Carafano, classify user data. Also look for several generic examples offered by the Court of situations where immunity would and would not apply, and “clarifications” of two prior Ninth Circuit rulings (Carafano and Batzel).
I’m looking forward to getting through Judge McKeown’s accompanying opinion and hearing what others have to say about the case.