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II. Statement on the Law
A. The Communications Decency Act
Congress addressed liability for online intermediaries with the CDA, which “granted most Internet services immunity from liability for publishing false or defamatory material so long as the information was provided by another party.”
Congress also recognized that “the Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation.”
One of its expressed policy goals in the CDA was “to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by state regulation.”
Section 230(c) expressly states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
Accordingly, when a piece of information shows up on an Internet website or networking service and the ICS is not the producer, that service will not be held liable for the information because it is not considered the “publisher.”
In the Act's definitions section, § 230(f), “interactive computer service” is defined as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet.”
Practically speaking, most websites and Internet service providers (“ISPs”) fit into this category and courts do not deliberate on this part of the test in their analyses.
“Information content provider” is defined as “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.”
The central issue that courts confront when applying the CDA for purposes of immunity is the breadth of the definitions of “information content provider” and “publisher”
as two key terms within the CDA.
The greater extent to which an interactive computer service-which could be an ISP such as America Online (“AOL”) or a website such as Craigslist-is seen to be merely a publisher of information from a third-party information content provider (“ICP”), the greater the immunity from liability.
A website that does nothing but allow users to input information that is displayed without any sorting or editing by the website would be completely protected under this statute because it cannot be said to be responsible either “in whole or in part” for the information, and is thus not the ICP.
Such a website would not be treated as the publisher and would not be liable for any injuries that result from the information.
The term “in whole or in part”
is a term which courts must clarify to determine the breadth of immunity that the statute provides. For purposes of application, there are two extremes in reading this part of the statute:
Reading #1: So long as the ICS is responsible in part (any part, even 0.1%) for the development of the content, then the ICS is an ICP and [immunity under] 230 isn't available. This reading isn't very useful because it would apply whenever an ICS edited any third party content, which is exactly what 230 routinely has been held to protect. Reading #2: So long as any third party ICP was responsible in part for the content's development (even 0.1%), the ICS isn't liable for it. This means that the ICS could have a great deal of involvement in the content but still avoid liability. This is by far the dominant interpretation of the statute.
Where on the continuum between these extremes any given court chooses to read the statute is directed by its view of how far ICS immunity should be extended.
B. Existing Case Law
Case law surrounding the CDA has generally been consistent since the first test of its authority shortly after the Act was passed.
In Carafano v. Metrosplash.com, Inc.,
a Ninth Circuit case upon which both SexSearch.com and Roommates.com relied, the court stated that “courts have treated § 230(c) immunity as quite robust, adopting a relatively expansive definition of 'interactive computer service' and a relatively restrictive definition of 'information content provider.' ”
The facts of Carafano involved a “cruel and sadistic identity theft” when an anonymous prankster posted a fake and sexually suggestive profile of an actress and revealed her phone number and home address on an online dating site.
The Carafano court held that § 230 immunity did apply to the ICS, concluding that “so long as a third party willingly provides the essential published content, the interactive service provider receives full immunity regardless of the specific editing or selection process.”
Though the website in Carafano provided a questionnaire with both multiple choice and essay questions to help the user build a profile, which could potentially make it partially responsible for producing the information and thus liable,
the court stated that “no profile has any content until the user actively creates it.”
It stressed that under § 230 “any information provided by another information content provider”
triggers immunity for an ICS.
Following Carafano, the Ninth Circuit issued a fractured ruling that narrowed the scope of § 230 immunity in the Roommates.com case. In this case, the Fair Housing Council of San Fernando Valley and San Diego sued an online roommate matching website, Roommates.com (“Roommate”), for violations of the Fair Housing Act found in profiles of users seeking to rent out their homes.
While the majority briefly considered whether Roommate was an ICS and whether the claim brought by the plaintiffs pertained to Roommate's role as a publisher, the bulk of the opinion analyzed whether Roommate was an ICP “responsible, in whole or in part, for the creation or development of [the] information”
on which the plaintiffs based their claims.
The court admitted that an ICS does not automatically lose protection “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,”
but the court took a more expansive view of what constitutes “creation or development” of information in considering the plaintiff's claim.
The Fair Housing Council brought claims based on three types of violations: (1) questionnaires that users are required to fill out in order to use the service; (2) selective e-mail distribution of profiles; and (3) the posting of information filled out in an “Additional Comments” section of user profiles.
The questionnaires applied to people seeking a room as well as to those who could provide a room to rent, and included inquiries as to gender, the presence of children, and sexual orientation.
These questionnaires also included a roommate preference form comprised of questions similar to those that the person seeking a roommate completed;
each of these inquiries had the option of being left blank.
In its analysis of § 230 immunity, the court unanimously found Roommate “ 'responsible' for such questionnaires because it 'creat[ed] or develop[ed]' these forms and answer choices.”
The court then held that Roommate was an ICP and was therefore not eligible for § 230 immunity.
The court then turned to the “more difficult”
question of § 230 immunity for publishing the profiles themselves. The plaintiffs contended that Roommate was generally responsible for both the profiles that were created using the questionnaires and the distribution via e-mail of select responses based on user-selected preferences.
The court characterized these actions as more than “merely publish[ing],” seeing them as “channel[ing] the information based on members' answers to various questions, as well as the answers of other members.”
In other words, the site was suggesting compatible profiles to its members and excluding incompatible ones. The court reasoned that this process created an “additional layer of information that [Roommate] is 'responsible' at least 'in part' for creating or developing,”
thereby cementing its position as an ICP and preventing it from receiving § 230 immunity. The court distinguished its reading of § 230 from existing precedent based on the type of information the website solicited, although it made no official findings about whether the user profiles did in fact violate the Fair Housing Act.
The holding on this particular issue was joined by only two of the three judges; the third judge stated that this reading of ICP was too expansive.
Finally, the court considered the “Additional Comments” portion of the profile, holding that Roommate's role in creating this portion did receive § 230 protection. Although this portion was equally part of the profiles distributed based on other searchable criteria-to which the “additional layer of information” was added-the court stated: “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 . . . . Nor does Roommate use the information in the 'Additional Comments' section to limit or channel access to listings.”
Again, only two judges signed on to this holding, while the third judge opined that, as part of the searchable profile, the “Additional Comments” section should also lose immunity.
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