Ninth Circuit: Roommates.com Not Entirely Protected by Section 230

The Internet is buzzing with news of yesterday’s decision in Fair Housing Council of San Fernando Valley v. Roommates.com, ___ F.3d ___, 2008 WL 879293 (9th Cir. 2008). A number of commentators have posted summaries and analyses of the decision, so we will not duplicate their efforts here. (This post will presume that the reader has some basic familiarity with Section 230 of the Communications Decency Act and the facts and procedural history of the Roommates.com case.) However, we do feel the need to comment on a few aspects of the opinion.

The Decision Does Not Represent a Significant Departure from Existing Case Law

As Eric Goldman points out, the Court tried to signal that its decision isn’t a major shift away from existing case law. We agree with the Court – this Roommates.com opinion leaves existing Section 230 jurisprudence largely intact.

The Court addressed three specific aspects of the Roommates.com website that were alleged to violate the Fair Housing Act and California fair housing laws: 1) the questions posed by Roommates.com to prospective subscribers during the website registration process; (2) allegedly discriminatory statements displayed in the “Additional Comments” section of user’s profile pages; and (3) Roommates.com’s alleged development and display of subscribers’ discriminatory preferences. The Court concluded that Section 230 does not apply to the first and third aspects of the website but does immunize Roommates.com against liability for the second aspect.

As part of the website registration process, Roommates.com requires users to disclose their sex, family status, and sexual orientation. Merely asking such questions can violate the Fair Housing Act, which prohibits housing discrimination on the basis of race, color, religion, sex, disability, familial status, and national origin. As the Court noted, “a real estate broker may not inquire as to the race of a prospective buyer.” Roommates.com, ___ F.3d ___, 2008 WL 879293 at *3.

Since Roommates.com “created the questions and choice of answers, and designed its website registration process around them,” the Ninth Circuit correctly concluded that Roommates.com was 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.” Roommates.com, ___ F.3d ___, 2008 WL 879293 at *3. Holding that Section 230 does not protect Rommates.com from liability resulting from the publication of questions and answers authored by the website operator is entirely consistent with the language and intent of Section 230 and recent case law interpreting the statute.

The Fair Housing Council also argued that Roommates.com should be held liable for discriminatory statements displayed in the “Additional Comments” section of users’ profile pages. However, the Court noted that Roommates.com “publishes these comments as written.  It does not provide any specific guidance as to what the essay should contain, nor does it urge subscribers to input discriminatory preferences.” Roommates.com, ___ F.3d ___, 2008 WL 879293 at *10. Therefore, Roommates.com “is not responsible, in whole or in part, for the development of this content, which comes entirely from subscribers and is passively displayed by [the website].” Accordingly, Section 230 immunity does apply to these comments and Roommates.com cannot be held liable for publishing them.

Once again, this aspect of the decision should be fairly uncontroversial. It comports with most of the existing case law interpreting Section 230.

The most potentially controversial holding of the Court is the conclusion that Section 230 does not protect Roommates.com from liability resulting from its publication of users’ sex, family status, and sexual orientation and use of this information to “channel subscribers away from listings where the individual offering housing has expressed preferences that are incompatible with the subscriber’s answers.” Roommates.com, ___ F.3d ___, 2008 WL 879293 at *3. Here, the Court determined that

the part of the profile that is alleged to offend the Fair Housing Act and state housing discrimination laws – the information about sex family status and sexual orientation – is provided by subscribers in response to Roommate’s questions, which they cannot refuse to answer if they want to use defendant’s services. By requiring subscribers to provide the information as a condition of accessing its service, and by providing a limited set of prepopulated answers, [Roommates.com] becomes much more than a passive transmitter of information provided by others; it becomes the developer, at least in part, of that information. . . . Unlawful questions solicit (a.k.a. “develop”) unlawful answers. Not only does Roommate ask these questions, Roommate makes answering the discriminatory questions a condition of doing business . . . When a business enterprise extracts such information from potential customers as a condition of accepting them as clients, it is no stretch to say that the enterprise is responsible, at least in part, for developing that information.

Roommates.com, ___ F.3d ___, 2008 WL 879293 at *3.

It seems apparent to us that the Court’s decision on this issue is narrowly limited to conduct by website operators that is allegedly to violate laws prohibiting discriminatory practices, in which it is not the content itself (e.g. “I am white, gay, and Buddhist.”) which results in liability but the type of content (e.g., the race, sexual orientation, or religion of a potential home purchaser) which is elicited, developed, and then published. Here, Roommates.com is alleged to have required subscribers to provide and publish certain information in a context in which that type of information may not legally be used – thus, the website “developed, in whole or in part” the content.

This is not at all similar to a website eliciting comments or posts about a particular subject (e.g., personal dating experiences with particular men on dontdatehimgirl.com) but is much closer to a website asking its users to provide specific and unlawful comments (e.g., false assertions that particular men have criminal records or untreated sexually transmitted diseases). In fact, the Court distinguished the case before it from many others in which Section 230 protection did apply by noting that in those cases the website operator “did not design its system around the dissemination of unlawful content.”Roommates.com, ___ F.3d ___, 2008 WL 879293 at *9.

In the end, we don’t view the Court’s opinion as all that earth-shattering. It’s crafted to be narrowly applicable to the particular case decided and should not alter the Section 230 analysis in most future cases.

The Ninth Circuit Views Wikipedia as a Credible Source

In interpreting Section 230, the majority chided the dissent for being “content to pluck the ‘plain meaning of the statute from a dictionary definition that predates the Internet by decades” (two versions of Webster’s dictionary] and instead applied a definition for “[web] content development” found on Wikipedia. We’ve previously commented on the credibility of Wikipedia as a source (here, here, and here, among other places) and find it a little surprising that the majority used it as its only citation on the definition of content development.

The Ninth Circuit Has a Sense of Humor

Humorous highlights from the decision include:

• The Court’s description of a early online service provider: “Prodigy was an online service provider with 2 million users, which seemed like a lot at the time.”Roommates.com, ___ F.3d ___, 2008 WL 879293 at *2 n. 9 (emphasis added).

• The Court’s description of some of the non-actionable content contained in the “Additional Comments” section of subscribers’ profiles: Some subscribers are just looking for someone who will get along with their significant other” referring to a comment that “[t]he female we are looking for hopefully wont [sic] mind having a little sexual incounter [sic] with my boyfriend and I [very sic].”  Roommates.com, ___ F.3d ___, 2008 WL 879293 at *10 &  n. 34 (emphasis added).

Though the decision was rendered only yesterday, it has already generated a wealth of valuable commentary. Our favorites so far are Eric Goldman’s discussion of the case and its procedural history and Evan Brown’s political take on the decision.

Update (4/4/2008):  For other content related to this post, click here (courtesy of Sphere).

Update (4/6/2008): At Concurring Opinions, Daniel J. Solove asks "Does the Roommates.com Case Affect CDA § 230 Immunity for Juicy Campus?"  The answer:  probably not.  Like our dontdatehimgirl.com example above, JuicyCampus asks users to post campus gossip but does not ask or require its users to post specific unlawful content.  As Solove notes, "[a]lthough JuicyCampus.com wants students to spread gossip and rumor, not all gossip and rumor are defamatory or invasive of privacy."

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