NOTE:  On October 12, 2007, the Ninth Circuit announced that it would rehear this matter en banc.  It further directed that this opinion [the three judge panel’s opinion summarized below] “shall not be cited as precedent by or to this court or any district court in the 9th Circuit . . ..”  So unless you are interested in background information, you might instead want to read about the 2008 en banc decision.

DATE: Filed May 15, 2007

COURT: United States Court of Appeals, Ninth Circuit (before Reinhardt, Kozinski and Ikuta, Circuit Judges. Opinion for the court by Kozinski. Reinhardt concurred in part and dissented in part and filed a separate opinion. Ikuta concurred in part and filed a separate opinion)

PLAINTIFFS: Fair Housing Council of San Fernando Valley; and The Fair Housing Council of San Diego, individually and on behalf of the General Public (“the Councils”)

DEFENDANT: Roommate.com, LLC

AMICUS CURIAE: Amazon.com, Inc., America Online, Inc., Ebay Inc ., Google Inc., Tribune Company, Yahoo! Inc., Netchoice and United States Internet Service Provider Association

INTERACTIVE COMPUTER SERVICE: “The Councils do not dispute that Roommate is a provider of an interactive computer service.”

MATERIAL ALLEGATIONS: Roommate.com, LLC (“Roommate”) “operates an online roommate matching website at http://www.roommates.com. This website helps individuals find roommates based on their descriptions of themselves and their roommate preferences. Roommates.com has approximately 150,000 active listings and receives about a million page views per day.

“To become members of Roommate, users respond to a series of online questionnaires by choosing from answers in drop-down and select-a-box menus. Users must disclose information about themselves and their roommate preferences based on such characteristics as age, sex and whether children will live in the household. They can then provide “Additional Comments” through an open-ended essay prompt.

“Roommate’s free membership allows users to create personal profiles, search lists of compatible roommates and send “roommail” messages to other members. Roommate also sends email newsletters to members seeking housing, listing compatible members who have places to rent out. Roommate’s fee-based membership allows users to read their “roommail” and view the “Additional Comments” essays of other members.”

Questionnaires. “Individuals looking for a room must first complete a form about themselves. They must use a drop-down menu to identify themselves as either “Male” or “Female” and to disclose whether “Children will be present” or “Children will not be present.” Individuals looking to rent out a room must complete a similar form. They must use a check-box menu to indicate whether “Straight male(s),” “Gay male(s),” “Straight female(s),” and/or “Lesbian(s)” now live in the household, and a drop-down menu to disclose if there are “Children present” or “Children not present.” If users fail to provide answers to any of these questions, they cannot complete the membership registration process.”

“In addition to completing one of the two forms described above, all prospective members must fill out the “My Roommate Preferences” form. They must use a drop-down menu to indicate whether they are willing to live with “Straight or gay” males, only “Straight” males, only “Gay” males, or “No males,” or may choose to select a blank response. Users must make comparable selections for females. They must also declare “I will live with children,” “I will not live with children” or change the field to a blank. . . . When users select the option “I will not live with children,” Roommate publishes this response as “no children please.””

Profiles. Roommate generates members’ profiles from their answers to the form questionnaires.

Channeling. “Roommate also channels the information [it solicits from its members] based on members’ answers to various questions, as well as the answers of other members. Thus, Roommate allows members to search only the profiles of members with compatible preferences. For example, a female room-seeker who is living with a child can only search profiles of room-providers who have indicated they are willing to live with women and children. Roommate also sends room-seekers email notifications that exclude listings incompatible with their profiles. Thus, Roommate will not notify our female about room-providers who say they will not live with women or children.”

Additional Comments. “Members provide this information by filling in a blank text box. Next to this box, Roommate advises users that “[w]e strongly recommend taking a moment to personalize your profile by writing a paragraph or two describing yourself and what you are looking for in a roommate.” The responses to this query produce the most provocative and revealing information in many users’ profiles. Some state that they “Pref[er] white Male roommates,” while others declare that they are “NOT looking for black muslims.” Some don’t want to deal with annoyances such as “drugs, kids or animals” or “smokers, kids or druggies,” while others want to stay away from “psychos or anyone on mental medication.”

CAUSE OF ACTION: Violation of the Fair Housing Act (“FHA”) and various state laws. Specifically, the following are Roommate’s alleged FHA violations, each of which require the Court to determine, for purposes of CDA immunity, “whether Roommate is ‘responsible, in whole or in part, for the creation or development of [the] information.’”:

(1) it posts the questionnaires on its website and requires individuals who want to take advantage of its services to complete them;

(2) it posts and distributes by email its members’ profiles; and

(3) it posts the information its members provide on the “Additional Comments” form.

PROCEDURAL HISTORY: The U.S. District Court for the Central District of California, Percy Anderson, J., ruled that the CDA barred the FHA claim and granted, in part, summary judgment for operator. Councils appealed.

PROCEDURAL ACTION TAKEN HERE: Reversed in part and remanded.

OUTCOME: Having determined that the CDA does not immunize Roommate for all of the content on its website and in its email newsletters, we remand for a determination of whether its non-immune publication and distribution of information violates the FHA, 42 U.S .C. § 3604(c).

OPINION:

Applicable standard. The panel noted that “[a]t this stage, we are only concerned with whether Roommate is immune from liability under the CDA, not whether it actually violated the FHA. . . .. Roommate is immune so long as it merely publishes information provided by its members . . .However, Roommate is not immune for publishing materials as to which it is an “information content provider. . . . In other words, if Roommate passively publishes information provided by others, the CDA protects it from liability that would otherwise attach under state or federal law as a result of such publication. But if it 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.

“As we explained in Carafano, “an ‘interactive computer service’ qualifies for immunity so long as it does not also function as an ‘information content provider’ for the portion of the statement or publication at issue. Furthermore, “a provider of an interactive computer service does not lose its CDA immunity if it merely exercises some control over the posting of information provided by others, such as enforcement of rules as to appropriate content or minor editing. Nor does it generally lose its immunity if it simply facilitates expression of information by individuals.”

Questionnaires. “Roommate is “responsible” for these questionnaires because it “creat[ed] or develop[ed]” the forms and answer choices. As a result, Roommate is a content provider of these questionnaires and does not qualify for CDA immunity for their publication.

“Roommate objects that simply asking questions cannot violate the FHA. Yet the Councils advance two theories under which publication of these forms arguably does violate the FHA. First, the Councils argue that asking users to provide information about themselves and their roommate preferences is a “statement … with respect to the sale or rental of a dwelling that indicates … an intention to make [a] preference, limitation or discrimination.” [citations omitted] Second, the Councils claim that requiring members to answer questions that enable other members to discriminate for or against them violates the FHA by “ caus[ing] ” users “to [make] … any … statement … with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination.”” [citation omitted].

“We describe the Councils’ FHA theories only to show that the mere asking of questions might, indeed, violate the FHA. It will be up to the district court on remand to decide initially whether Roommate violated the FHA by publishing its form questionnaires.

…

“Furthermore, “the Councils allege that Roommate takes members’ blank selection in the children field and publishes it as “no children please.” We could not find support for this proposition in the record, but if Councils’ allegation is true, then Roommate significantly alters the meaning of the information provided by its members and is not entitled to CDA immunity for posting the resulting content.”

…

However, “[w]hen users select the option “I will not live with children,” Roommate publishes this response as “no children please.” The Councils argue that this alteration makes Roommate a content provider and therefore not immune under the CDA for publishing this statement. However, minor editing that does not affect meaning is protected under the CDA as the “usual prerogative of publishers.” [citation omitted]. Because “no children please” is materially the same as “I will not live with children,” Roommate does not lose its CDA immunity because of the change in wording.”

Member profiles. Roommate strongly urges that Carafano settles this issue. However, the court found that “Carafano differs from our case in at least one significant respect: The prankster in Carafano provided information that was not solicited by the operator of the website. The website sought information about the individual posting the information, not about unwitting third parties. Nothing in the questions the dating service asked suggested, encouraged or solicited posting the profile of another person, and the website’s policies prohibited altogether the posting of last names and contact information. While Carafano is written in broad terms, it must be read in light of its facts. Carafano provided CDA immunity for information posted by a third party that was not, in any sense, created or developed by the website operator-indeed, that was provided despite the website’s rules and policies. We are not convinced that Carafano would control in a situation where defamatory, private or otherwise tortious or unlawful information was provided by users in direct response to questions and prompts from the operator of the website . . .. [W]e 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.”

“While mapping the outer limits of Carafano’s protection of websites that solicit and post users’ responses is an interesting and difficult task, we need not undertake it today because Roommate does more than merely publish information it solicits from its members. . . . 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. [citations omitted]

The panel also employed a fictional website – Harassthem.com – as an example to drive home its point.

Additional Comments. “We conclude that Roommate’s involvement is insufficient to make it a content provider of these comments. Roommate’s open-ended question suggests no particular information that is to be provided by members; Roommate certainly does not prompt, encourage or solicit any of the inflammatory information provided by some of its members. Nor does Roommate use the information in the “Additional Comments” section to limit or channel access to listings. Roommate is therefore not “responsible, in whole or in part, for the creation or development of” its users’ answers to the open-ended “Additional Comments” form, and is immune from liability for publishing these responses.” [citations omitted]

NOTE: On October 12, 2007, the Ninth Circuit announced that it would rehear this matter en banc. It further directed that this opinion [the three judge panel’s opinion summarized above] “shall not be cited as precedent by or to this court or any district court in the 9th Circuit . . ..”  I’ve also written about the 2008 en banc decision.