The Blog

Feeling spiky and prescient for writing about Section 230 *just yesterday,* because today the 9th Circuit came down with a big en banc decision: Fair Housing Council v. Roomates.com.  This time around, the Fair Housing Act trumps the broad immunity of Section 230 – and the majority’s approach may dramatically change our current understanding of how Section 230 works.
Roomate requires subscribers to create a profile – in effect, answering a series of questions about gender, sexual orientation, and presence of children (as well as other questions).  The Fair Housing Act prohibits any “statement. . . with respect to the sale or rental of a dwelling that indicates . . . an intention  to make [a] preference, limitation, or discrimination” on the basis of gender, family status, and sexual orientation.  Subscribers can’t leave the answers to Roomate’s questions blank if they want to use its service.

Section 230 immunizes “interactive computer service” (ICS) providers (like Roomate) from liability for third party content.  But if the ICS itself is “responsible, in whole or in part, for the creation or development of” the offending content, then it can be on the hook.  In today’s decision, the 9th Circuit is suggesting that Roomate’s multi-question questionnaire makes it responsible for the discriminatory answers that are revealed in response to search queries by users.

Roomate needs to be limited to its facts.  Otherwise, this opinion (read for all it’s worth) might suggest that online services can be liable for categorizing or channeling information provided by third parties if the outputs of that categorizing are somehow illegal.  Indirectly providing the illegal content could be enough to create liability.  Does this mean that search engines – which categorize – are liable for the content on sites that can be found through particular queries?  The opinion suggests that “neutral tools” won’t be liable, but all search engines tweak their results to some extent – there is no such thing as a neutral search engine.  The opinion also suggests that search engines generally don’t encourage illegal searches or the publication of illegal content and should therefore be immune for third party content revealed by searches, but also conceded that “there will always be close cases where a clever lawyer could argue that something the website operator did encouraged the illegality.”

Judge Kozinski suggests that Section 230′s purpose is to immunize ISPs from liability for removing particular content, not for the creation of content, and that Roomate has asked discriminatory questions that could not be asked offline — and has made answering those questions a condition of participation in its service.  Kosinzki also faults Roomate for the operation of its search system and its email notification system – both of which operate based on discriminatory criteria in his view.

In effect, “materially contributing” to the alleged unlawfulness (through solicitation, among other things) is enough to impose liability on the online service as a “developer” of the unlawful information.   This opinion is to Section 230 as Grokster is to secondary copyright liability – it creates a softer test where online service providers had become accustomed to (and had fought for) a clearly protective line.  Enhancing the illegality of a message, even automatically, may create liability.  The opinion suggests that close cases must be resolved in favor of immunity and that sites shouldn’t be subject to endless litigation, but that’s not much comfort for close-case-companies.

There’s a stinging dissent from Judges McKeown, Rymer, and Bea:

The majority’s unprecedented expansion of liability for Internet service providers threatens to chill the robust development of the Internet that Congress envisioned.

That could be true if Roomate is read broadly.