Ninth Circuit Orders En Banc Review of Controversial Roomates.com CDA Immunity Opinion

The Ninth Circuit has ordered an en banc review of the controversial panel opinion in Fair Housing Council of San Fernando Valley v. Roommates.com, No. 04-56916 (9th Cir. May 15, 2007), on which we previously commented. The panel ruled that the Roommates.com site was not entitled to immunity under Section 230 of the Communications Decency Act because it was an "information content provider" with respect to the housing listings posted by users. The court focused on the "structured questionnaire" format of the listings, which asked information about roommate preferences based on characteristics such as age, sex, sexual preference, and whether children would live in the user's household, allegedly in violation of the federal Fair Housing Act. The court commented: "By categorizing, channeling and limiting the distribution of users’ profiles, Roommate provides an additional layer of information that it is “responsible” at least “in part” for creating or developing."

The petition for en banc review was supported by an amicus brief filed by the Electronic Frontier Foundation, Lycos, Inc., and Prof. Eric Goldman, a frequent commentator on Section 230 issues, including on this blog. Prof. Goldman is pleased with the result.