I previously wrote about the district court’s grant of summary judgment in favor of the Federal Trade Commission in an action alleging unfair practices against Accusearch’s Abika.com (a website advertising access to and selling personal telephone records).  Last summer the 10^th Circuit weighed-in.

The panel noted that the acquisition of personal telephone records “would almost inevitably require someone to violate the Telecommunications Act or to circumvent it by fraud or theft.”  It concluded that Section 230 immunity was unavailable to Accusearch, given it acted as an “information content provider” with respect to “the information that subjected it to liability under the FTC Act.”

In reaching its decision, the court focused on the definition of information content provider, specifically “whether confidential telephone records are “developed,” within the meaning of the CDA, when, as here, they are sold to the public over the Internet,” and whether Accusearch was responsible for such development.

The court determined that “when confidential telephone information was exposed to public view through Abika.com, that information was ‘developed.’”  Also concluding that “a service provider is ‘responsible’ for the development of offensive content only if it in some way specifically encourages development of what is offensive about the content,” the panel found that Accusearch was responsible for the aforesaid development, having disclosed the confidential information.

Circuit Judge Tymkovich submitted a concurring opinion, explaining that a Section 230 interpretation was unnecessary here, because “the FTC sought and ultimately held Accusearch liable for its conduct rather than for the content of the information it was offering on the Abika.com website.”  Section 230 “says nothing about immunizing publishers or speakers for their own conduct in acquiring the information.”  My favorite line from the concurring opinion?

In sum, the CDA does not extend to immunize a party’s conduct outside the realm of the Internet just because it relates to the publishing of information on the Internet.