Technology Law Update

Court Grants CDA Immunity for ISP Spam-Blocking

In the world of NFL football, certain prohibited blocking techniques done by the offense, such as clipping, chop blocking, and illegal blocking from behind, are penalized if the referee sees it on the field and throws a flag.  However, in the world of Internet service providers (ISPs), spam blocking is a big concern and is a desirable feature to Internet users, particularly given the latest report from Sophos stating that spam messages in the first quarter of 2008 accounted for over 90 percent of all email sent. 

However, does an ISP have any protections from the potential “penalty” of legal liability for the good faith blocking of suspected spam that the ISP deems “objectionable”?  A recent decision from the Northern District of Illinois states that under the law, a choice to block objectionable material, even a mistaken one, if made in good faith, cannot be the basis for liability under federal or state law.  In e360Insight, LLC v. Comcast Corp., No. 08-340, 2008 U.S. Dist. LEXIS 29287 (N.D. Ill. Apr. 10, 2008), the court held that the an ISP, that blocked an Internet marketer’s objectionable spam is immune from liability under the "Good Samaritan" provision of the Communications Decency Act (CDA) for claims of tortious interference and unfair practices, among others.  The court dismissed the marketer’s action, finding the ISP immune under Section 230(c)(2)(A) as an provider of an “interactive computer service” that in good faith “restricted access to” material that the provider considered “objectionable.”  The court found that the marketer’s bulk e-mails were the sort of communications that an ISP could deem to be objectionable, noting that the CDA imposes a “subjective element” and only requires that the provider subjectively deem the blocked material objectionable.  In support of this proposition, the court cited the Zango v. Kaspersky Lab decision from last year, where a district court found that a software maker, whose anti-spyware software classified an Internet software maker’s Web-based product as potential malware, was immune from liability under the CDA’s "Good Samaritan" provision. The court also rejected the marketer’s arguments that its emails complied with the CAN-SPAM Act and the ISP had no right to block them, concluding that compliance with the CAN-SPAM Act “does not evict the right of the provider to make its own good faith judgment to block mailings.” 

Ninth Circuit En Banc Affirms CDA Immunity Ruling in Roommates.com Case

In Fair Housing Council v. Roommates.com, the roommate-matching site was sued for violations of the Fair Housing Act. The Ninth Circuit, sitting en banc, has now affirmed the panel ruling that the site may be liable for violations of the FHA because of the manner in which the site elicits information from prospective roommates. To summarize, the site requires users to answer questions about sex, family status and sexual orientation, among other characteristics, in a series of structured questions, and then matches potential roommates on the basis of those characteristics. The concluded that this technique rendered Roommates.com an "information content provider" and thus outside the protection of CDA Section 230:

Here, 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 pre-populated answers, Roommate becomes much more than a passive transmitter of information provided by others; it becomes the developer, at least in part, of that information. And section 230 provides immunity only if the interactive computer service does not “creat[e] or develop[]” the information “in whole or in part.” See 47 U.S.C.§ 230(f)(3).

What impact will this ruling have? Perhaps very little, due to the unique combination of the nature of the site and the particular law allegedly violated. The Roommates site is structured in such a way that users are required to answer questions concerning protected categories such as sex, family status and sexual orientation in order to use the site. Although the court did not rule on whether the site actually violated the FHA because of the procedural posture of the case, the court noted that the FHA does provide for liability merely for asking questions about protected categories, and therefore the plaintiff had at least a "plausible claim" that the site violated the FHA.

Also, keep in mind that the Seventh Circuit ruled very recently that online site Craigslist is not liable under the FHA for discriminatory postings by its users, noting that the site does not structure the information provided by users according to discriminatory criteria. The Ninth Circuit expressed the view that its ruling is consistent with the Craigslist ruling, similarly distinguishing comments by users posted in the free form "additional comments" portion of a user's profile from information elicited via a structured questionnaire:

Websites are complicated enterprises, and there will always be close cases where a clever lawyer could argue that something the website operator did encouraged the illegality. Such close cases, we believe, must be resolved in favor of immunity, lest we cut the heart out of section 230 by forcing websites to face death by ten thousand duck-bites, fighting off claims that they promoted or encouraged—or at least tacitly assented to—the illegality of third parties. Where it is very clear that the website directly participates in developing the alleged illegality—as it is clear here with respect to Roommate’s questions, answers and the resulting profile pages—immunity will be lost. But in cases of enhancement by implication or development by inference—such as with respect to the “Additional Comments” here—section 230 must be interpreted to protect websites not  merely from ultimate liability, but from having to fight costly and protracted legal battles.

Thus, as we suggested in our previous post following oral argument the Roommates case, CDA Section 230 immunity may depend upon site design, at least in the Ninth Circuit.

Fair Housing Council of San Fernando Valley v. Roomates.com, LLC, No. 04-56916 (9th Cir. Apr. 3, 2008)

Does CDA Section 230 Protect Web Sites From State Law Right of Publicity Claims? One Court Says "No."

Section 230 of the Communications Decency Act protects Web site owners and other providers of "interactive computer services" from many types of claims based on content provided by third parties, but the statute contains a number of exceptions. One of the most significant exceptions is that for intellectual property claims. 47 U.S.C. 230(e) provides: "Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property." Thus, a Web site owner remains open to liability for third party content under "intellectual property" laws.

The Copyright Act clearly is a "law pertaining to intellectual property," and thus the CDA does not protect Web site owners from copyright claims based on third party content, but Web site owners may seek protection from those claims under the safe harbor provisions of the Digital Millenium Copyright Act. Trademark laws also pertain to intellectual property, but there is no safe harbor law to protect Web site owners from trademark-related claims. Thus, they are left open to claims by trademark owners, as evidenced by the current litigation by Tiffany seeking to hold the eBay auction site liable under trademark laws for fake merchandise sold by eBay users.

But what about state law right of publicity claims? Are they claims based on laws "pertaining to intellectual property"?

In one of the Perfect 10 cases in the Ninth Circuit, the court noted the variety of state right of publicity laws, and the difficulty of classifying them. Rather than ruling on the proper characterization of those laws, the court held that the term "intellectual property" in the CDA Section 230(e) refers only to federal intellectual property rights, because allowing the states' varying definitions of intellectual property to "dictate the contours of [CDA] immunity would be contrary to Congress's expressed goal" of fostering the Internet." Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102  (9th Cir. 2007). As a result, Perfect 10's claims based upon the rights of publicity of the models depicted in its adult images (which rights the models assigned to Perfect 10) were not within the intellectual property exception to CDA Section 230 immunity and were thus precluded by Section 230.

A district court in the First Circuit has now squarely rejected the Ninth Circuit approach, ruling in Doe v. Friendfinder Network, Inc. (D. N.H. Mar. 27, 2008) that right of publicity laws are laws "pertaining to intellectual property," and thus claims under such laws are not precluded by Section 230 immunity:

    ... This court has no reason to believe that reading § 230(e)(2) to exempt state intellectual property law would place any materially greater burden on service providers than they face by having to comply with federal intellectual property law--an obligation that persists under even Perfect 10's construction of the CDA. That court’s view that “inclusion of rights protected by state law within the ‘intellectual property’ exemption would fatally undermine the broad grant of immunity provided by the CDA,” 488 F.3d at 1119 n.7, is simply unsupported.
    Thus, even if it were free to disregard the plain language of § 230(e)(2), this court cannot accept the defendants’ claim at oral argument that allowing state-law intellectual property claims to survive the CDA would have a “devastating” impact on the internet. Despite the general consensus before the Perfect 10 decision that the CDA did not shield service providers from state intellectual property law, both the internet and so-called “e-commerce” remain alive and well, and show no signs of imminent collapse.  *** Indeed, while protecting third-party intellectual property rights no doubt presents some challenges for service providers like the defendants, those challenges would appear to be simply a cost of doing business on-line. They certainly cannot support judicially rewriting the CDA, in any event.

The plaintiff in Doe v. Friendfinder alleged that she was the subject of a false profile posted by an anonymous party on an adult social networking site. Among other claims, she alleged that the false profile violated her "Invasion of Privacy/Intellectual Property Rights" under New Hampshire law.  Having held that a right of publicity claim is not precluded under Section 230, the court embarked upon exactly the kind of fine-grained analysis of the nature of the rights being asserted that the Ninth Circuit rejected in Perfect 10 v. CCBill. The court concluded that in her "Invasion of Privacy/Intellectual Property Rights" count, the plaintiff was asserting four privacy torts recognized by the New Hampshire Supreme Court, only one of which constituted a right of publicity claim. To the extent that the plaintiff was asserting invasion of privacy claims, the court concluded, those claims were precluded under Section 230:

While the plaintiff objects to the dismissal of any part of Count I on the ground that it asserts “intellectual property rights” under § 230(e)(2), her argument and authorities on that score address only the fourth theory, commonly known as a “right of publicity” claim. See, e.g., Carson v. Here’s Johnny Portable Toilets, Inc., 698 F.2d 831, 834 (6th Cir. 1983). As the plaintiff points out, “the right of publicity is a widely recognized intellectual property right.” Almeida, 456 F.3d at 1322 (citing authorities). Such a claim therefore arises out of a “law pertaining to intellectual property” within the meaning of the statute. See 1 McCarthy, Rights of Publicity, § 3:42 (opining that § 230 immunity does not apply to claim for infringement of right to publicity by virtue of § 230(e)(2)).

The other three torts encompassed by the “right of privacy” rubric, however, do not fit that description. Unlike a violation of the right to publicity, these causes of action--intrusion upon seclusion, publication of private facts, and casting in false light--protect “a personal right, peculiar to the individual whose privacy is invaded” which cannot be transferred like other property interests. *** The plaintiffs’ claims under these branches of the privacy doctrine, then, do not sound in “law pertaining to intellectual property,” and she offers no authority or argument to the contrary. While § 230(e)(2) exempts her right of publicity claim from the immunity provision of the CDA, then, that provision applies with full force to the other invasion of privacy claims asserted in her complaint.

The end result in Friendfinder is the dismissal of most of the plaintiff's claims, except her right of publicity claim, along with several trademark claims. Those claims are interesting all by themselves. The plaintiff alleged that Friendfinder used her false profile in its advertising and promotional efforts, giving rise to false advertising and false designation of origin claims under the Lanham Act. The court refused to dismiss those claims, rejecting the argument that such claims are limited to celebrities.

Judge Easterbrook Sums Up CDA Section 230 Jurisprudence: You Can't Sue the Messenger

(Well, this definitely is "47 USC 230 week.")

The messenger to which Judge Easterbrook refers is the online provider Craigslist, the case is Chicago Lawyers Committee v. Craigslist, where the plaintiff seeks to hold Craigslist liable for the discriminatory housing ads posted by its users, allegedly in violation of the federal Fair Housing Act.

Today the Seventh Circuit upheld the lower court ruling that Craigslist cannot be held liable for those discriminatory ads, under Section 230 of the Communications Decency Act. This should be no surprise to anyone who listened to the oral argument.

Judge Easterbrook authored the opinion, reiterating his prior view that Section 230 has been incorrectly interpreted by other federal courts as a broad grant of immunity, and referencing his prior opinion on that point in Doe v. GTE, 347 F.3d 655 (7th Cir. 2003).

Despite Judge Easterbrook's differences with other courts on issues of interpretation, the panel agreed that Craigslist is not liable in this case, because under any interpretation of Section 230, holding the provider liable for housing ads posted by its users would make it liable as a "speaker," a result precluded under the statute:

What §230(c)(1) says is that an online information system must not "be treated as the publisher or speaker of any information provided by" someone else. Yet only in a capacity as publisher could craigslist be liable under §3604(c). It is not the author of the ads and could not be treated as the "speaker" of the posters’ words, given §230(a)(1).
***
Using the remarkably candid postings on craigslist, the Lawyers’ Committee can identify many targets to investigate. It can dispatch testers and collect damages from any landlord or owner who engages in discrimination. See Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982); Gladstone, Realtors v. Bellwood, 441 U.S. 91 (1979). It can assemble a list of names to send to the Attorney General for prosecution. But given §230(c)(1) it cannot sue the messenger just because the message reveals a third party’s plan to engage in unlawful discrimination.

It's "47 USC 230 Week" on Eric Goldman's Blog: New CDA Section 230 Immunity Cases

Prof. Eric Goldman is an aficionado of jurisprudence related to immunity under Section 230 of the Communications Decency Act. He has declared this "47 USC 230 Week" on his Technology & Marketing Law blog, in honor of four new cases on the topic. We previously blogged one of them, John Doe Anti-Terrorism Officer v. City of New York, and we highly recommend a trip to Prof. Goldman's blog for in-depth coverage of the others.

Of particular interest is Mazur v. eBay, in which Judge Patel in the Northern District of California rules that marketing representations made by the operator of a Web site about its own operations are outside the scope of Section 230 immunity.

Judge Patel cuts the analysis very finely, distinguishing between liability for eBay's failure to act on its knowledge of sellers' illegal conduct (immune), screening auction houses for inclusion in its Live Auctions (immune), liability for eBay's statements that it "carefully screens" for "reputable auctions houses" (immune, because such statements constitute opinion) and eBay's statements, e.g., that the auctions were "safe" (not immune):

The critical issue is whether eBay acted as an information content provider with respect to the information that [plaintiff] claim[s] is false or misleading."). Plaintiff seeks to hold eBay liable for misconduct with respect to eBay’s own statements regarding the safety, circumstances and caliber of its live auctions. The CDA does not immunize eBay for its own fraudulent misconduct.

***

eBay did not make assurances of accuracy or promise to remove unauthorized auctioneers. Instead, eBay promised that Live Auctions were safe. Though eBay styles safety as a screening function whereby eBay is responsible for the screening of safe auctioneers, this court is unconvinced. eBay’s statement regarding safety affects and creates an expectation regarding the procedures and manner in which the auction is conducted and consequently goes beyond traditional editorial discretion.

Immunity under Section 230 of the CDA has been repeatedly held to be extremely broad, of course, and cases probing the limits of that immunity are relatively rare. We are currently awaiting the issuance of opinions in two such cases pending in circuit courts of appeal, i.e., the Ninth Circuit opinion on rehearing en banc in Fair Housing Council v. Roommates.com, and the Seventh Circuit opinion in Chicago Lawyers' Committee v. Craigslist.

Seventh Circuit Hears Argument in Craigslist Section 230 CDA Case: There WILL Be an Opinion By Judge Easterbrook

Or at least it seems highly likely that Judge Frank Easterbrook of the Seventh Circuit will take the opportunity presented by the appeal in Chicago Lawyers v. Craigslist [opinion below] to advance his interpretation of Section 230 of the Communications Decency Act.

The Craigslist case involves an action brought under the Fair Housing Act, seeking to hold Craigslist liable for discriminatory housing ads posted by users. The issues are similar to those in Fair Housing Council of San Fernando Valley v. Roommates.com, presently pending in the Ninth Circuit following an en banc rehearing conducted in December, as we have previously blogged.

Judge Easterbrook's view, laid out in dicta in his opinion in Doe v. GTE, is that Zeran v. America Online, the seminal opinion in Section 230 jurisprudence, and the opinions that have followed it, are wrong. Wrong, in that Zeran and its numerous progeny read Section 230 as providing interactive service providers with extremely broad immunity from any liability for material provided by third parties. Judge Easterbrook would limit Section 230 immunity to publisher liability, but leave open the door to imposing other kinds of liability on interactive service providers. Exactly what kind of liability is unclear, however, although Judge Easterbrook suggests that states could enact laws that would require providers to "protect the interests of third parties" and not run afoul of the prohibition in subsection (d)(3) of Section 230 against a cause of action or liability "under any State or local law that is inconsistent with this section."

And it appears, from listening to the audio of the oral argument, that Judge Easterbrook has another vote on the panel (Judge Diane Wood) for his contrarian interpretation. No surprise there, perhaps, as Judge Wood was also on the panel in Doe v. GTE.

Here's Judge Easterbrook's view, taken from the dicta in Doe v. GTE:

Why not read §230(c)(1) as a definitional clause rather than as an immunity from liability, and thus harmonize the text with the caption? See Carlisle v. United States, 517 U.S. 416, 421 (1996). On this reading, an entity would remain a "provider or user"—and thus be eligible for the immunity under §230(c)(2)—as long as the information came from someone else; but it would become a "publisher or speaker" and lose the benefit of §230(c)(2) if it created the objectionable information. The difference between this reading and the district court’s is that §230(c)(2) never requires ISPs to filter offensive content, and thus §230(e)(3) would not preempt state laws or common-law doctrines that induce or require ISPs to protect the interests of third parties, such as the spied-on plaintiffs, for such laws would not be "inconsistent with" this understanding of §230(c)(1). There is yet another possibility: perhaps §230(c)(1) forecloses any liability that depends on deeming the ISP a "publisher"—defamation law would be a good example of such liability—while permitting the states to regulate ISPs in their capacity as intermediaries.

It was unnecessary to reach the issue of Section 230 interpretation in Doe v. GTE, because the panel concluded that there was no applicable legal principle, other than publisher liability, under which the ISP in that case could be held responsible. That may happen in the Craigslist case as well. The district court judge, who also has embraced Judge Easterbrook's take on Section 230, concluded that there was no basis to find Craigslist responsible under the federal Fair Housing Act for discriminatory posts by users, other than publisher liability, and granted the provider's motion to dismiss.

Steven Libowsky, arguing on behalf of the Chicago Lawyers' Committee for Civil Rights Under the Law, embraced Judge Easterbrook's restrictive construction of Section 230. He advanced the idea that Craigslist could be liable under the FHA as one of the "causers" of the discriminatory postings, relying on the FHA language that makes it unlawful to "make, print, or publish, or cause to be made, printed, or published" any discriminatory housing notice. The judges did not seem warm to this argument.

Patrick Carome, arguing on behalf of Craigslist, made a number of arguments contesting the Easterbrook interpretation of Section 230. First, he referenced the 2002 enactment of the the "Dot Kids Implementation and Efficiency Act," which expressly extended the protection of Section 230 to the newly established "kids.us" subdomain. He pointed out that the committee report accompanying the legislation referenced the judicial interpretations of Section 230, and stated that those opinions "have correctly interpreted" the statute. That argument got a sharp negative response from Judge Easterbrook, who commented to the effect that if Congress wants to adopt a rule, it enacts a statute, not a committee report.

The second point made by Carome is one that Judge Easterbrook does not address in the Doe v. GTE case analysis. Section 230 does not in fact give unlimited immunity to service providers; it contains a number of express exceptions, including intellectual property law, the Electronic Communications Privacy Act and similar state laws, and federal criminal laws. Neither the FHA, nor indeed, any general category of laws imposing non-publisher liability, is among those express exceptions. Thus, the argument goes, if Congress had intended to leave the door open for non-publisher liability, it could have done so in this section, and it did not.

Although it is problematic to predict a result based upon listening to the oral argument, it did appear that the judges had difficulty in identifying a basis for imposing liability on Craigslist other than liability as a publisher. And that, it was conceded, is barred by Section 230 under any interpretation of its provisions.

Should CDA Section 230 Immunity Depend Upon Site Design?

Reading the transcript of the en banc reargument conducted on December 12, 2007, in Fair Housing Council of the San Fernando Valley v. Roommates.com may lead you to think that CDA immunity may depend upon site design in the Ninth Circuit. The oral argument focused intently on the manner in which information is elicited from users of the Roommates.com site, in comparison to the online dating service at issue in Carafano v. Metrosplash, and to the roommate matching service at issue in Chicago Lawyers v. Craigslist, see discussion below.

An audio file of the oral argument is available on the Ninth Circuit Web site. 

Recall that last May, in a split panel decision, the Ninth Circuit ruled that the Roommates.com roommate matching site is not entitled to immunity under Section 230 of the Communications Decency Act from claims under the federal Fair Housing Act, because it is an "information content provider" with respect to certain information elicited by the site via a questionnaire. Fair Housing Council v. Roommates.com LLC, 489 F.3d 921 (Ninth Cir. 2007), vacated for rehearing en banc, 2007 US App. LEXIS 23922 (Ninth Cir. 2007).

Here's how the panel opinion described the site:

As previously explained, in order to become members of Roommate and take advantage of the services it offers, individuals must complete a series of questionnaires. Individuals looking for a room must first complete a form about themselves. They must use a drop-down menu to identify themselves as either "Male" or "Female" and to disclose whether "Children will be present" or "Children will not be present." Individuals looking to rent out a room must complete a similar form. They must use a check-box menu to indicate whether "Straight male(s)," "Gay male(s)," "Straight female-(s)," and/or "Lesbian(s)" now live in the household, and a drop-down menu to disclose if there are "Children present" or "Children not present." If users fail to provide answers to any of these questions, they cannot complete the membership registration process."

And here's how the panel ruled:

As we previously explained, an entity cannot qualify for CDA immunity when it is "responsible, in whole or in part, for the creation or development of [the] information" at issue. 47 U.S.C. § 230(c), (f)(3); see also Batzel, 333 F.3d at 1031. Roommate is "responsible" for these questionnaires because it "creat[ed] or develop[ed]" the forms and answer choices. As a result, Roommate is a content provider of these questionnaires and does not qualify for CDA immunity for their publication.

During the oral argument in the en banc rehearing conducted last week, one focus of discussion was the distinction between the Roommates.com site and the date-matching site at issue in Carafano v. Metrosplash, 339 F.3d 1119 (9th Cir. 2003). In Carafano, the Ninth Circuit ruled that the dating service is statutorily immune from liability for false content in a dating profile provided by someone posing as another person. The court reasoned that although the service provided structure to a user's profile through a questionnaire and other means, the court found that it did not function as an "information content provider" under the statute because a dating profile has no content until a user creates one.

Several of the judges on the en banc panel appeared to reflect the strong view that because Roommates.com requires users to provide information via a series of "drop down" boxes from which a user must select a response in order to use the site, that Roommates.com is an "information content provider" with respect to the resulting user profiles. This procedure was contrasted to the more free-form questionnaire in Carafano v. Metrosplash, and the completely unstructured format of the Craigslist.com site.

Here are some excerpts from the oral argument (with apologies for any transcription errors):

Judge, to counsel for Roommates.com:

However, if in fact I read Carafano, it says, one of the reasons Matchmaker was given its immunity, Matchmaker was not responsible, even in part, for associating certain multiple choice responses with a set of physical characteristics, a group of essay answers, and a photograph. 'Matchmaker cannot be considered an information content provider because no profile has any content until the user actively creates it.' However in your situation, it seems to me that that's just the opposite. *** You've set the profiles up before we even get there, therefore I can't come in and get to what I want to, I can only come in and get to what you want me to get to, because you have been responsible in part for associating my resposes, to .. and my profile already has been set up ... even before I create it. and therefore Carafano does not apply. how do you answer that. ..."

Judge, to counsel for Roommates.com:

The question for me at this point is not whether you're facilitating some illegal activity, the question is whether you are an information content provider within the meaning of the statute, and as soon as you say here are some questions you have to answer, that strikes me as coming within the language, responsible in whole or in part for the development of information.' if you said listen, tell us anything you want to tell, that's a different proposition, but on our site, you have to answer the following questions, I don't see how you get out from under the definition of information content provider.

Judge, referring to comment by counsel for Roommates.com that its computer system is "agnostic":

Lets talk about agnostic, let's explore that. *** Agnosticism in this context would say that you don't care what they put on, you provide a site that would allow landlords to reach tenants. then you structure it, so now you are entering into a decision as to what you believe landlords and tenants will want to know about each other. So you have decided, rather than simply putting down name, address, location, etc., which would be the physical attributes of the property, you are also deciding that there have to be revealed sex, sexual orientation, children and other things. Now if you didn't put those aspects into the questionnare but put it down into the additional comments, and the users voluntarily *** put down what they chose to put down, i don't want to rent to Jews, I don't want to rent to blacks, I don't want gay people any where near my property, and the profile that you generated was above the comments area, that would be agnostic. If the search function, like Google, Craigslist, whatever, .. could reach into the additional comments, prohibited preferences under the fha, but you have elevated up into what you have decided what is important to the landlord and prospective tenant,  I  don't understand how you can say you are agnostic.  And to that extent, I think you are creating, you are developing the information for the site.

It was strongly suggested in the course of the oral argument, if not outright stated, that eliciting information in unstructured questions and allowing users to search using protected categories, i.e., race, gender, sexual orientation, etc., does not make a service provider an "information content provider" under the CDA. The example of Craigslist.com was mentioned several times in the oral argument, almost off-handedly as a site that provides roommate-matching listings, but is not an information content provider within the meaning of the CDA. Note that Craigslist prevailed in similar litigation brought in the Northern District of Illinois under the Fair Housing Act. Chicago Lawyers v. Craigslist, 2006 U.S. Dist. LEXIS 82973 (N.D. Ill. November 14, 2006). The appeal in that case is currently pending in the Seventh Circuit, with briefing scheduled to be completed in early January.

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.

Avvo Attorney Ratings Web Site Seeks Dismissal on CDA Section 230, First Amendment Grounds

Avvo.com is a recently launched Web site that offers information and "ratings" of attorneys. The site was immediately the subject of criticism for many obvious and even rather humorous errors, such as good ratings for indicted or convicted attorneys, ratings for deceased attorneys, and low ratings for certain Supreme Court justices (see CNET article). It wasn't a question of when Avvo would be sued, just which lawyers would take on the task. And so, a class action alleging claims under the Washington Consumer Protection Act was filed in the Western District of Washington on June 14, 2007, captioned John Henry Browne and Alan J. Winokur v. Avvo, Inc., No. cv7-920. Here's the complaint.

The complaint relates the manner in which the site operates. In brief, profiles contain certain "default" information that Avvo gleanes from the Web sites of various attorney disciplinary authorities and other sources. Additional information may come from "clients" who rate their attorneys, and peer reviews by other attorneys. Avvo applies an algorithm to derive a rating for the attorney based upon the information provided from these sources.  Attorneys are also invited to "claim" their profiles to add additional relevant information that may affect their rating. It is necessary to use a credit card to register to claim an attorney profile; according to Avvo the purpose of the credit card requirement is to avoid fraudulent postings.

The complaint contains some interesting statements, including allegations that some attorneys raised their ratings by adding information on sports awards to their Avvo profile, and that attorneys connected with Avvo received the highest ratings of any other attorneys listed on the site.  The complaint also alleges that the act of claiming a profile can immediately raises an attorney's rating by on point (on the site's ten point scale).

The defenses raised by Avvo are as predictable as the filing of the lawsuit. We are guessing that Avvo's attorney had the motion to dismiss prepared in draft form prior to the launch of the site, considering that it was filed on June 28, only two weeks after the complaint. Here's the motion. The motion is based on First Amendment and CDA Section 230 grounds.

The CDA Section 230 claim makes sense with respect to the reviews that may be added by clients and peers directly to the Avvo site, but it is interesting to note that Avvo's Section 230 immunity claim lumps information provided directly to the site by these parties together with the information it apparently proactively obtains from bar disciplinary authorities and attorney Web sites: "Section 230 bars the claims that plaintiffs base on the posting or republication of thirdparty content. Avvo cannot be held liable for information it posts from state bar associations, attorney websites, attorneys, and clients." (Avvo brief, p. 20). Here's the relevant language from Section 230: "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." Does this language encompass information obtained from another online information content provider by the defendant and posted on its own site, rather than being posted by that provider directly to the defendant's Web site?

Ninth Circuit Limits CDA Section 230 Immunity In Structured Questionnaire Case

This is an important case, as it is one of the very few cases involving CDA immunity in which a court has found that CDA immunity is not available.

Fair housing councils in California brought actions against Roommate.com, a Web site for people seeking roommates, alleging that the site violates the Fair Housing Act and various state laws. The site requires users to answer a series of online questions, and then permits users to fill out an open-ended "additional comments" section. The structured questions ask information about roommate preferences based on characteristics such as age, sex, sexual preference, and whether children will live in the user's household.  The information provided by the users is utilized by the site to determine which of the profiles of other users a particular user may search. For example, a female living with a child can only search profiles of room providers who indicate that they are willing to live with women and children.

Roommmates.com moved to dismiss, citing Section 230 of the Communications Decency Act, and the district court dismissed on that ground. On appeal, a panel of the Ninth Circuit Court of Appeals ruled that Roommates is not entitled to CDA immunity for the information provided in response to the structured questions, but is entitled to immunity for the information provided in the open-ended "additional comments" section.

From Judge Kozinski's opinion:

While Roommate provides a useful service, its search mechanism and email notifications mean that it is neither a passive pass-through of information provided by others nor merely a facilitator of expression by individuals. 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. 47 U.S.C. § 230(c), (f)(3); see also Batzel, 333 F.3d at 1031.

Fair Housing Council of San Fernando Valley v. Roommates.com, No. 04-56916 (9th Cir. May 15, 2007).

The opinion is available at http://www.thelen.com/tlu/FairHousingCouncilVRoommatesDotCom.pdf