IV. Analysis

As one of the first CDA cases to be decided since the Roommates.com ruling, Doe v. SexSearch.com seems to have redirected interpretation of § 230 back towards the plain meaning of the statute, similar to the interpretation in the initial cases decided under the CDA.86 While the SexSearch.com case was decided in a different circuit from the Roommates.com case, the district court in SexSearch.com could have adopted the Ninth Circuit's analysis of § 230 put forth in Roommates.com. It is especially significant that the SexSearch.com court chose not to follow the Ninth Circuit's reasoning in Roommates.com given the significant weight the court in SexSearch.com gave to Carafano, another Ninth Circuit decision. Although the plaintiff in SexSearch.com did not explore the avenues opened up by Roommates.com to the fullest, the district court took an important step in choosing not to follow the Ninth Circuit into a legally ambiguous reading of the CDA. The facts of SexSearch.com are substantially similar to those of Roommates.com, although the two opinions framed them in decidedly different ways.87 Instead, SexSearch.com follows a Carafano-type analysis of the issue; both cases take the same view of what makes an online intermediary an ICP, especially with respect to the “essential published content,”88 which is “the portion of the statement or publication at issue.”89

A. Disagreement between SexSearch.com and Roommates.com

Both the SexSearch and Roommate websites offer user-created profiles constructed with user-supplied answers to a questionnaire provided by the website which are then displayed in an organized manner.90 While the type of information differs,91 the process by which the websites solicit, edit, and display the information is substantially similar. If SexSearch.com had been decided with the less restrictive view of an ICP that was used in Roommates.com, without regard to the actual type of information supplied by users, SexSearch's profile creation system and searchable user content would have created the “additional layer of information”92 sufficient to make it “ 'responsible' at least 'in part' for creating or developing”93 the substantive profile and hence would have made it an information content provider liable for the false information.

While it may seem unfair to hold SexSearch legally accountable for user-generated false information for which it made no promise or warranty of accuracy,94 applying the Roommates.com rationale would do just that. In creating a less restrictive view of what constitutes an ICP, the Roommates.com majority attempted to distinguish the facts of its own case from Carafano.95 The court stated that in Carafano, the “information posted by [the] third party . . . was not, in any sense, created or developed by the website operator-indeed, that was provided despite the website's rules and policies.”96 It thus expressed doubt 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 from the website.”97 The problem with this analysis of § 230 is that the CDA makes no reference to the type of information for which an ICS will or will not be considered the “publisher.” Instead, the CDA focuses on the level of involvement in producing the information for which it will or will not be considered the “publisher.”98

The court in Roommates.com made an unsupported leap of interpretation in declaring that the information solicited in Carafano through the use of questionnaires and pre-prepared responses “merely 'facilitated the expression of information by individual users,' ”99 while the information solicited in Roommates.com in a similar fashion voided § 230 liability.100 The court supported this conclusion by manipulating the statute's definition of ICP.101 It seems that websites that seek out unwanted information for the construction of profiles were seen to have contributed “in part” to the “creation or development” of such information, while websites that seek out accepted information for the construction of user profiles were seen not to have contributed at all-neither “in whole” nor “in part”-to the “creation or development” of that information.102 This interpretation reveals an attempt to hold sites liable for the types of questions they ask in the profile-creation process, and has nothing to do with the degree to which the sites ask questions in the profile-creation process, which is the relevant inquiry based on the statute.

The dangers of a rule that lacks clarity with respect to the scope of the immunity that § 230 provides are abundant. The court in SexSearch.com rightly addressed this issue by stating, “the mere fact SexSearch provided the questionnaire Jane Roe answered falsely is not enough to consider SexSearch the developer of the false profile.”103 The statement could just as easily be read into Roommates.com to say, “the mere fact Roommate provided the questionnaire that was answered illegally is not enough to consider Roommate the developer of the illegal profile.”

B. Implications

Allowing the courts to analyze an ICS's liability based on the different types of information it solicits rather than on the level of involvement in the actual production of the information can lead to serious liability issues for all ICSs. It will also likely lead to an increase in expensive litigation until the boundaries become clearer. Legal implications would abound for all websites that require user profiles, not only for dating and room rental sites. Affected sites would include social networks such as MySpace, online auction sites such as eBay, online classifieds such as Craigslist, online critic sites such as Rotten Tomatoes, blog hosting servers such as LiveJournal, and, perhaps most of all, Internet service providers such as AOL. These intermediaries would have a confusing picture of their legal obligations as they manage their sites for millions of users each day. To add to the trouble, most of these intermediaries structure the content so that it is searchable with results that are sorted based on user input, designed as such to be a service to the user. Without a clear rule for § 230 liability, providing this service may add the “additional layer of information” discussed in Roommates.com to void § 230 immunity altogether in cases in which the court sees fit. Search engines are perhaps the most susceptible to this attack, as their main function is to sort and structure data based on the user input.

SexSearch.com follows Congress's intent in passing the CDA, as outlined in § 230 itself. With the broad scope of immunity that SexSearch.com affords under § 230, the decision fosters free speech and requires a minimum of governmental regulation. The standard adopted in Roommates.com, on the other hand, is a step towards restricting free speech, as it restricts ICS immunity and lacks structured and defined parameters. For online intermediaries, Roommates.com provides unclear or nonexistent statutory protection from liability, leaving the intermediaries “essentially . . . two choices: (1) employ an army of highly trained monitors to patrol (in real time) each chatroom, message board, and blog to screen any message that one could label defamatory, or (2) simply avoid such a massive headache and shut down these fora.”104 Neither option gives effect to Congress's desire to foster a free and open Internet.