- Just How Big A Hole Did the Ninth Circuit Poke in CDA 230?

By now you've heard that the Ninth Circuit, sitting en banc, reaffirmed the previous decision. There's lots of excellent coverage out there -- some notable examples include the Online Liability Blog, Info/Law, Internet Cases, and Eric Goldman's Law & Technology Blog. The new decision, written by Judge Kozinski, may have exploded forever the longstanding assumption (among Internet lawyers, at least) that website operators would always be immune under section 230 of the Communications Decency Act (CDA 230) for publishing and organizing content provided by their users, so long as the underlying claim didn't involve intellectual property, federal criminal law, or the Electronic Communications Privacy Act. Nevertheless, we can read the case narrowly, and its impact could be inconsequential if limited to its facts. Unfortunately, aspects of the opinion make a more expansive reading possible.

Some background: is a website that helps match people looking for a place to live with people who've got space to rent. Before users can search or post listings, they must create a profile by answering a number of questions. According to the majority opinion, users must specify, using drop-down menus, information about their gender, sexual orientation, and whether they will bring children to a household. They also must provide information about their preferences in roommates with regard to the same three criteria. In addition, the registration interface encourages users to provide "Additional Comments" about themselves and their desired roommate in an open-ended fill-in-the-blank form. The website then publishes all this information on the user's profile page and uses it to channel subscribers toward listings with compatible preferences, including through a search function. Two advocacy groups groups sued Roommates, arguing that these practices violate the Fair Housing Act and California housing discrimination law. Roommates invoked CDA 230 as a defense.

The decision has three holdings: (1) CDA 230 does not bar the claim that Roommates violated the Fair Housing Act by asking questions about gender, sexual orientation, and children during the registration process; (2) CDA 230 does not bar the claim that Roommates violated the Fair Housing Act by publishing answers created using its pull-down menus and by providing search functionality and email notices based on this information; and (3) CDA 230 bars a Fair Housing Act claim based on the "Additional Comments" provided by users.

The first and the third holdings are not terribly controversial. For holding #1, if we assume for the sake of argument that asking certain questions violates the law, asking them is the website's own act, not the user's. Maybe I'm missing something, but this seems straightforward. Holding #3 is consistent with the Seventh Circuit's recent decision in Chicago Lawyers' Committee for Civil Rights v. Craigslist, Inc., 2008 WL 681168 (7th Cir. Mar. 14, 2008), which held that CDA 230 barred Fair Housing Act claims against craigslist for posting the discriminatory notices of its users. A craigslist user, much like a user filling out the "Additional Comments" section, has complete discretion about what to place in his or her notice; there is no specific prompting or encouragement to indicate a discriminatory preference.

The harder issues revolve around holding #2. With regard to publishing user profiles, the court held that Roommates was responsible for user content because it (a) required subscribers to provide allegedly unlawful information as a condition of accessing its service; and (b) provided a limited set of pre-populated answers. Fair Housing Council v., LLC, slip op. at 3458 (9th Cir. Apr. 3, 2008). With respect to its search and email functions, the court held that Roommates lost CDA 230 immunity by designing its system to use allegedly unlawful criteria to channel information to particular users and forcing users to participate in the discriminatory process. Id. at 3461.

If Judge Kozinski had stopped there, this case would not have made much of a dent in CDA 230. For sure, it's a new thing for a website operator to face liability for content chosen by a user from a pull-down menu, and this result is at least facially inconsistent with the Ninth's Circuit's own Carafano v., 339 F.3d 1119 (9th Cir. 2003), which Judge Kozinski re-interpreted, and some district court cases, like Whitney Information Network, Inc. v. Xcentric Ventures, LLC, slip op., at 21-23 (M.D. Fla. Feb. 15, 2008). But, if you narrow this case to its facts, it is relatively unremarkable and easy to distinguish from other cases. Here, Roommates forced its users to answer allegedly illegal questions, provided only allegedly unlawful answer choices, and then imposed the allegedly unlawful criteria on its users through searches and email notifications. We're not likely to see this set of facts ever again. (Well, duh, especially not now.)

But unfortunately the court injected extra verbiage into its opinion that makes its precise meaning uncertain. First, the court created a brand new defintion for the word "development" in CDA 230 ("The term 'information content provider' means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.") It held that the word "development" refers "not merely to augmenting the content generally, but materially contributing to its alleged unlawfulness.", slip op. at 3462. The court does a good job of giving some examples to help cabin this potentially expansive phrase, see id. at 3464, but it's awfully abstract. I, for one, am still scratching my head over it.

Second, the court uses words like "encourage," "solicit," and "induce" in a loose and imprecise manner throughout the opinion and suggests that such actions may be sufficient to strip a website operator of CDA 230 immunity. See, e.g., id. at 3468, 3470 (distinguishing Carafano because the website did nothing to "encourage defamation or to make defamation easier"); id. at 3470 n.33 (noting that craigslist does not "induce" anyone to post any particular listing or express a preference for discrimination); id. at 3471 n.33 (distinguishing Green v. America Online because there was no allegation that AOL "solicited the content, encouraged users to post harmful content or otherwise had any involvement whatsoever with the harmful content"). The court's final "clear message" to website operators certainly makes it look like "encourag[ing] illegal content" is sufficient to lose immunity, although Roommates allegedly did much more than that. Will this dicta guide future cases? One would rather not have to ask.

Third, the court also peppered its discussion with references to "passive" websites, as if passivity were the touchstone for CDA 230 immunity. Eric Goldman writes:

We had thought 230 changed that paradigm and eliminated any differences in legal treatment between passive conduits and active content managers. Unfortunately, this opinion raises questions about that. The majority opinion uses the term "passive" 7 times in its opinion, each time implying that passivity contributes to the immunization.

Yet, as Goldman points out, the court also acknowledges (as it must) that exercising traditional editorial functions does not strip a website of protection. So, we are left wondering what exactly "passive" means. I'm sure future plaintiffs' lawyers will come up with creative definitions.

Given all this extra language, and especially the final admonishment not to "encourage illegal content," websites like Don' and Juicy Campus have a lot more to be concerned about now than they did two days ago. In any event, the opinion is complex, and there's a lot to digest. In the end, it may be that Judge Kozinski was justified in striving to formulate a more generally applicable standard for deciding when website operators cross the line into liability. CDA 230 may after all need to shed some of its certainty, which sometimes comes at the price of absurdity or injustice.

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