Roomates.com Case and its interpretation of the Communications Decency Act -Was this a victory against Internet defamation and other online misconduct?
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FAIR HOUSING COUNCIL OF SAN ü
FERNANDO VALLEY; THE FAIR
HOUSING COUNCIL OF SAN DIEGO,
individually and on behalf of the
No. 04-56916
GENERAL PUBLIC,
Plaintiffs-Appellants,
CV-03-09386-PA
v.
ROOMMATES.COM, LLC,
Defendant-Appellee.
FAIR HOUSING COUNCIL OF SAN ü
FERNANDO VALLEY; THE FAIR
HOUSING COUNCIL OF SAN DIEGO,
No. 04-57173
individually and on behalf of the
GENERAL PUBLIC, D.C. No.
CV-03-09386-PA
Plaintiffs-Appellees,
OPINION
v.
ROOMMATE.COM, LLC,
Defendant-Appellant. þ
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted
December 12, 2007—Pasadena, California
Filed April 3, 2008
3445
3446 FAIR HOUSING COUNCIL v. ROOMMATES.COM
Before: Alex Kozinski, Chief Judge, Stephen Reinhardt,
Pamela Ann Rymer, Barry G. Silverman,
M. Margaret McKeown, William A. Fletcher,
Raymond C. Fisher, Richard A. Paez, Carlos T. Bea,
Milan D. Smith, Jr. and N. Randy Smith, Circuit Judges.
Opinion by Chief Judge Kozinski;
Partial Concurrence and Partial Dissent by Judge McKeown
FAIR HOUSING COUNCIL v. ROOMMATES.COM 3449
OPINION
KOZINSKI, Chief Judge:
We plumb the depths of the immunity provided by section
230 of the Communications Decency Act of 1996 (“CDA”).
Facts1
Defendant Roommate.com, LLC (“Roommate”) operates a
website designed to match people renting out spare rooms
with people looking for a place to live.2 At the time of the district
court’s disposition, Roommate’s website featured
approximately 150,000 active listings and received around a
1This appeal is taken from the district court’s order granting defendant’s
motion for summary judgment, so we view contested facts in the light
most favorable to plaintiffs. See Winterrowd v. Nelson, 480 F.3d 1181,
1183 n.3 (9th Cir. 2007).
2For unknown reasons, the company goes by the singular name “Roommate.
com, LLC” but pluralizes its website’s URL, www.roommates.com.
FAIR HOUSING COUNCIL v. ROOMMATES.COM 3451
million page views a day. Roommate seeks to profit by collecting
revenue from advertisers and subscribers.
Before subscribers can search listings or post3 housing
opportunities on Roommate’s website, they must create profiles,
a process that requires them to answer a series of questions.
In addition to requesting basic information—such as
name, location and email address—Roommate requires each
subscriber to disclose his sex, sexual orientation and whether
he would bring children to a household. Each subscriber must
also describe his preferences in roommates with respect to the
same three criteria: sex, sexual orientation and whether they
will bring children to the household. The site also encourages
subscribers to provide “Additional Comments” describing
themselves and their desired roommate in an open-ended
essay. After a new subscriber completes the application,
Roommate assembles his answers into a “profile page.” The
profile page displays the subscriber’s pseudonym, his description
and his preferences, as divulged through answers to
Roommate’s questions.
Subscribers can choose between two levels of service:
Those using the site’s free service level can create their own
personal profile page, search the profiles of others and send
personal email messages. They can also receive periodic
emails from Roommate, informing them of available housing
opportunities matching their preferences. Subscribers who
pay a monthly fee also gain the ability to read emails from
other users, and to view other subscribers’ “Additional Comments.”
The Fair Housing Councils of the San Fernando Valley and
San Diego (“Councils”) sued Roommate in federal court,
alleging that Roommate’s business violates the federal Fair
3In the online context, “posting” refers to providing material that can be
viewed by other users, much as one “posts” notices on a physical bulletin
board.
3452 FAIR HOUSING COUNCIL v. ROOMMATES.COM
Housing Act (“FHA”), 42 U.S.C. § 3601 et seq., and California
housing discrimination laws.4 Councils claim that Roommate
is effectively a housing broker doing online what it may
not lawfully do off-line. The district court held that Roommate
is immune under section 230 of the CDA, 47 U.S.C.
§ 230(c), and dismissed the federal claims without considering
whether Roommate’s actions violated the FHA. The court
then declined to exercise supplemental jurisdiction over the
state law claims. Councils appeal the dismissal of the FHA
claim and Roommate cross-appeals the denial of attorneys’
fees.
Analysis
[1] Section 230 of the CDA5 immunizes providers of interactive
computer services6 against liability arising from content
created by third parties: “No provider . . . of an interactive
computer service shall be treated as the publisher or speaker
of any information provided by another information content
provider.” 47 U.S.C. § 230(c).7 This grant of immunity
4The Fair Housing Act prohibits certain forms of discrimination on the
basis of “race, color, religion, sex, familial status, or national origin.” 42
U.S.C. § 3604(c). The California fair housing law prohibits discrimination
on the basis of “sexual orientation, marital status, . . . ancestry, . . . source
of income, or disability,” in addition to reiterating the federally protected
classifications. Cal. Gov. Code § 12955.
5The Supreme Court held some portions of the CDA to be unconstitutional.
See Reno v. ACLU, 521 U.S. 844 (1997). The portions relevant to
this case are still in force.
6Section 230 defines an “interactive computer service” as “any information
service, system, or access software provider that provides or enables
computer access by multiple users to a computer server.” 47 U.S.C.
§ 230(f)(2); see Carafano v. Metrosplash.com, Inc., 207 F. Supp. 2d 1055,
1065-66 (C.D. Cal. 2002) (an online dating website is an “interactive computer
service” under the CDA), aff’d, 339 F.3d 1119 (9th Cir. 2003).
Today, the most common interactive computer services are websites.
Councils do not dispute that Roommate’s website is an interactive computer
service.
7The Act also gives immunity to users of third-party content. This case
does not involve any claims against users so we omit all references to user
immunity when quoting and analyzing the statutory text.
FAIR HOUSING COUNCIL v. ROOMMATES.COM 3453
applies only if the interactive computer service provider is not
also an “information content provider,” which is defined as
someone who is “responsible, in whole or in part, for the creation
or development of” the offending content. Id.
§ 230(f)(3).
[2] A website operator can be both a service provider and
a content provider: If it passively displays content that is created
entirely by third parties, then it is only a service provider
with respect to that content. But as to content that it creates
itself, or is “responsible, in whole or in part” for creating or
developing, the website is also a content provider. Thus, a
website may be immune from liability for some of the content
it displays to the public but be subject to liability for other content.
8
Section 230 was prompted by a state court case holding Prodigy9
responsible for a libelous message posted on one of its
financial message boards.10 See Stratton Oakmont, Inc. v.
Prodigy Servs. Co., 1995 WL 323710 (N.Y. Sup. Ct. May 24,
1995) (unpublished). The court there found that Prodigy had
become a “publisher” under state law because it voluntarily
deleted some messages from its message boards “on the basis
of offensiveness and ‘bad taste,’ ” and was therefore legally
responsible for the content of defamatory messages that it
failed to delete. Id. at *4. The Stratton Oakmont court reasoned
that Prodigy’s decision to perform some voluntary self-
policing made it akin to a newspaper publisher, and thus
8See, e.g., Anthony v. Yahoo! Inc., 421 F. Supp. 2d 1257, 1262-63 (N.D.
Cal. 2006) (Yahoo! is not immune under the CDA for allegedly creating
fake profiles on its own dating website).
9Prodigy was an online service provider with 2 million users, which
seemed like a lot at the time.
10A “message board” is a system of online discussion allowing users to
“post” messages. Messages are organized by topic—such as the “finance”
message board at issue in Stratton Oakmont—and the system generally
allows users to read and reply to messages posted by others.
3454 FAIR HOUSING COUNCIL v. ROOMMATES.COM
responsible for messages on its bulletin board that defamed
third parties. The court distinguished Prodigy from CompuServe,
11 which had been released from liability in a similar
defamation case because CompuServe “had no opportunity to
review the contents of the publication at issue before it was
uploaded into CompuServe’s computer banks.” Id.; see
Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135, 140
(S.D.N.Y. 1991). Under the reasoning of Stratton Oakmont,
online service providers that voluntarily filter some messages
become liable for all messages transmitted, whereas providers
that bury their heads in the sand and ignore problematic posts
altogether escape liability. Prodigy claimed that the “sheer
volume” of message board postings it received—at the time,
over 60,000 a day—made manual review of every message
impossible; thus, if it were forced to choose between taking
responsibility for all messages and deleting no messages at
all, it would have to choose the latter course. Stratton Oakmont,
1995 WL 323710 at *3.
[3] In passing section 230, Congress sought to spare interactive
computer services this grim choice by allowing them to
perform some editing on user-generated content without
thereby becoming liable for all defamatory or otherwise
unlawful messages that they didn’t edit or delete. In other
words, Congress sought to immunize the removal of user-
generated content, not the creation of content: “[S]ection
[230] provides ‘Good Samaritan’ protections from civil liability
for providers . . . of an interactive computer service for
actions to restrict . . . access to objectionable online material.
One of the specific purposes of this section is to overrule
Stratton-Oakmont [sic] v. Prodigy and any other similar decisions
which have treated such providers . . . as publishers or
speakers of content that is not their own because they have
restricted access to objectionable material.” H.R. Rep. No.
104-458 (1996) (Conf. Rep.), as reprinted in 1996
11CompuServe was a competing online service provider of the day.
FAIR HOUSING COUNCIL v. ROOMMATES.COM 3455
U.S.C.C.A.N. 10 (emphasis added).12 Indeed, the section is
titled “Protection for ‘good samaritan’ blocking and screening
of offensive material” and, as the Seventh Circuit recently
held, the substance of section 230(c) can and should be interpreted
consistent with its caption. Chicago Lawyers’ Committee
for Civil Rights Under Law, Inc. v. craigslist, Inc., No. 071101,
slip op. at 6 (7th Cir. Mar. 14, 2008) (quoting Doe v.
GTE Corp., 347 F.3d 655, 659-60 (7th Cir. 2003)).
With this backdrop in mind, we examine three specific
functions performed by Roommate that are alleged to violate
the Fair Housing Act and California law.
1. Councils first argue that the questions Roommate poses
to prospective subscribers during the registration process violate
the Fair Housing Act and the analogous California law.
Councils allege that requiring subscribers to disclose their
sex, family status and sexual orientation “indicates” an intent
to discriminate against them, and thus runs afoul of both the
FHA and state law.13
[4] Roommate created the questions and choice of answers,
and designed its website registration process around them.
Therefore, Roommate is undoubtedly the “information content
provider” as to the questions and can claim no immunity
12While the Conference Report refers to this as “[o]ne of the specific
purposes” of section 230, it seems to be the principal or perhaps the only
purpose. The report doesn’t describe any other purposes, beyond supporting
“the important federal policy of empowering parents to determine the
content of communications their children receive through interactive computer
services.” H.R. Rep. No. 104-458, at 194 (1996) (Conf. Rep.), as
reprinted in 1996 U.S.C.C.A.N. 10, 207-08.
13The Fair Housing Act prohibits any “statement . . . with respect to the
sale or rental of a dwelling that indicates . . . an intention to make [a] preference,
limitation, or discrimination” on the basis of a protected category.
42 U.S.C. § 3604(c) (emphasis added). California law prohibits “any written
or oral inquiry concerning the” protected status of a housing seeker.
Cal. Gov. Code § 12955(b).
3456 FAIR HOUSING COUNCIL v. ROOMMATES.COM
for posting them on its website, or for forcing subscribers to
answer them as a condition of using its services.
Here, we must determine whether Roommate has immunity
under the CDA because Councils have at least a plausible
claim that Roommate violated state and federal law by merely
posing the questions. We need not decide whether any of
Roommate’s questions actually violate the Fair Housing Act
or California law, or whether they are protected by the First
Amendment or other constitutional guarantees, see craigslist,
slip op. at 2; we leave those issues for the district court on
remand. Rather, we examine the scope of plaintiffs’ substantive
claims only insofar as necessary to determine whether
section 230 immunity applies. However, we note that asking
questions certainly can violate the Fair Housing Act and analogous
laws in the physical world.14 For example, a real estate
broker may not inquire as to the race of a prospective buyer,
and an employer may not inquire as to the religion of a prospective
employee. If such questions are unlawful when posed
face-to-face or by telephone, they don’t magically become
lawful when asked electronically online. The Communications
Decency Act was not meant to create a lawless no-
man’s-land on the Internet.15
[5] Councils also claim that requiring subscribers to answer
14The Seventh Circuit has expressly held that inquiring into the race and
family status of housing applicants is unlawful. See, e.g., Jancik v. HUD,
44 F.3d 553, 557 (7th Cir. 1995).
15The dissent stresses the importance of the Internet to modern life and
commerce, Dissent at 3476, and we, of course, agree: The Internet is no
longer a fragile new means of communication that could easily be smothered
in the cradle by overzealous enforcement of laws and regulations
applicable to brick-and-mortar businesses. Rather, it has become a
dominant—perhaps the preeminent—means through which commerce is
conducted. And its vast reach into the lives of millions is exactly why we
must be careful not to exceed the scope of the immunity provided by Congress
and thus give online businesses an unfair advantage over their real-
world counterparts, which must comply with laws of general applicability.
FAIR HOUSING COUNCIL v. ROOMMATES.COM 3457
the questions as a condition of using Roommate’s services
unlawfully “cause[s]” subscribers to make a “statement . . .
with respect to the sale or rental of a dwelling that indicates
[a] preference, limitation, or discrimination,” in violation of
42 U.S.C. § 3604(c). The CDA does not grant immunity for
inducing third parties to express illegal preferences. Roommate’s
own acts—posting the questionnaire and requiring
answers to it—are entirely its doing and thus section 230 of
the CDA does not apply to them. Roommate is entitled to no
immunity.16
[6] 2. Councils also charge that Roommate’s development
and display of subscribers’ discriminatory preferences is
unlawful. Roommate publishes a “profile page” for each subscriber
on its website. The page describes the client’s personal
information—such as his sex, sexual orientation and whether
he has children—as well as the attributes of the housing situation
he seeks. The content of these pages is drawn directly
from the registration process: For example, Roommate
requires subscribers to specify, using a drop-down menu17
provided by Roommate, whether they are “Male” or “Female”
and then displays that information on the profile page. Roommate
also requires subscribers who are listing available housing
to disclose whether there are currently “Straight male(s),”
“Gay male(s),” “Straight female(s)” or “Lesbian(s)” living in
the dwelling. Subscribers who are seeking housing must make
a selection from a drop-down menu, again provided by Roommate,
to indicate whether they are willing to live with
“Straight or gay” males, only with “Straight” males, only with
“Gay” males or with “No males.” Similarly, Roommate
16Roommate argues that Councils waived the argument that the questionnaire
violated the FHA by failing to properly raise it in the district
court. But, under our liberal pleading standard, it was sufficient for Councils
in their First Amended Complaint to allege that Roommate “encourages”
subscribers to state discriminatory preferences. See Johnson v.
Barker, 799 F.2d 1396, 1401 (9th Cir. 1986).
17A drop-down menu allows a subscriber to select answers only from
among options provided by the website.
3458 FAIR HOUSING COUNCIL v. ROOMMATES.COM
requires subscribers listing housing to disclose whether there
are “Children present” or “Children not present” and requires
housing seekers to say “I will live with children” or “I will not
live with children.” Roommate then displays these answers,
along with other information, on the subscriber’s profile page.
This information is obviously included to help subscribers
decide which housing opportunities to pursue and which to
bypass. In addition, Roommate itself uses this information to
channel subscribers away from listings where the individual
offering housing has expressed preferences that aren’t compatible
with the subscriber’s answers.
[7] The dissent tilts at windmills when it shows, quite convincingly,
that Roommate’s subscribers are information content
providers who create the profiles by picking among
options and providing their own answers. Dissent at 3485-88.
There is no disagreement on this point. But, the fact that users
are information content providers does not preclude Roommate
from also being an information content provider by
helping “develop” at least “in part” the information in the profiles.
As we explained in Batzel, the party responsible for putting
information online may be subject to liability, even if the
information originated with a user. See Batzel v. Smith, 333
F.3d 1018, 1033 (9th Cir. 2003).18
[8] 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
18See also discussion of Batzel pp. 3466-67 infra.
FAIR HOUSING COUNCIL v. ROOMMATES.COM 3459
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).
Our dissenting colleague takes a much narrower view of
what it means to “develop” information online, and concludes
that Roommate does not develop the information because
“[a]ll Roommate does is to provide a form with options for
standardized answers.” Dissent at 3487. But Roommate does
much more than provide options. To begin with, it asks discriminatory
questions that even the dissent grudgingly admits
are not entitled to CDA immunity. Dissent at 3480 n.5. The
FHA makes it unlawful to ask certain discriminatory questions
for a very good reason: 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. This is no different
from a real estate broker in real life saying, “Tell me
whether you’re Jewish or you can find yourself another broker.”
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. For the dissent
to claim that the information in such circumstances is
“created solely by” the customer, and that the business has not
helped in the least to develop it, Dissent at 3487-88, strains
both credulity and English.19
19The dissent may be laboring under a misapprehension as to how the
Roommate website is alleged to operate. For example, the dissent spends
some time explaining that certain portions of the user profile application
are voluntary. Dissent at 3485-87. We do not discuss these because plaintiffs
do not base their claims on the voluntary portions of the application,
except the “Additional Comments” portion, discussed below, see pp.
3471-75 infra. The dissent also soft-pedals Roommate’s influence on the
mandatory portions of the applications by referring to it with such words
as “encourage” or “encouragement” or “solicitation.” Dissent at 3493; see
id. at 3499. Roommate, of course, does much more than encourage or
solicit; it forces users to answer certain questions and thereby provide
information that other clients can use to discriminate unlawfully.
3460 FAIR HOUSING COUNCIL v. ROOMMATES.COM
Roommate also argues that it is not responsible for the
information on the profile page because it is each subscriber’s
action that leads to publication of his particular profile—in
other words, the user pushes the last button or takes the last
act before publication. We are not convinced that this is even
true,20 but don’t see why it matters anyway. The projectionist
in the theater may push the last button before a film is displayed
on the screen, but surely this doesn’t make him the
sole producer of the movie. By any reasonable use of the
English language, Roommate is “responsible” at least “in
part” for each subscriber’s profile page, because every such
page is a collaborative effort between Roommate and the subscriber.
[9] Similarly, Roommate is not entitled to CDA immunity
for the operation of its search system, which filters listings, or
of its email notification system, which directs emails to subscribers
according to discriminatory criteria.21 Roommate
designed its search system so it would steer users based on the
preferences and personal characteristics that Roommate itself
forces subscribers to disclose. If Roommate has no immunity
for asking the discriminatory questions, as we concluded
above, see pp. 3455-57 supra, it can certainly have no immunity
for using the answers to the unlawful questions to limit
who has access to housing.
For example, a subscriber who self-identifies as a “Gay
male” will not receive email notifications of new housing
20When a prospective subscriber submits his application, Roommate’s
server presumably checks it to ensure that all required fields are complete,
and that any credit card information is not fraudulent or erroneous. Moreover,
some algorithm developed by Roommate then decodes the input,
transforms it into a profile page and notifies other subscribers of a new
applicant or individual offering housing matching their preferences.
21Other circuits have held that it is unlawful for housing intermediaries
to “screen” prospective housing applicants on the basis of race, even if the
preferences arise with landlords. See Jeanty v. McKey & Poague, Inc., 496
F.2d 1119, 1120-21 (7th Cir. 1974).
FAIR HOUSING COUNCIL v. ROOMMATES.COM 3461
opportunities supplied by owners who limit the universe of
acceptable tenants to “Straight male(s),” “Straight female(s)”
and “Lesbian(s).” Similarly, subscribers with children will not
be notified of new listings where the owner specifies “no children.”
Councils charge that limiting the information a subscriber
can access based on that subscriber’s protected status
violates the Fair Housing Act and state housing discrimination
laws. It is, Councils allege, no different from a real estate broker
saying to a client: “Sorry, sir, but I can’t show you any
listings on this block because you are [gay/female/black/a parent].”
If such screening is prohibited when practiced in person
or by telephone, we see no reason why Congress would have
wanted to make it lawful to profit from it online.
Roommate’s search function is similarly designed to steer
users based on discriminatory criteria. Roommate’s search
engine thus differs materially from generic search engines
such as Google, Yahoo! and MSN Live Search, in that Roommate
designed its system to use allegedly unlawful criteria so
as to limit the results of each search, and to force users to participate
in its discriminatory process. In other words, Councils
allege that Roommate’s search is designed to make it more
difficult or impossible for individuals with certain protected
characteristics to find housing—something the law prohibits.
By contrast, ordinary search engines do not use unlawful
criteria to limit the scope of searches conducted on them, nor
are they designed to achieve illegal ends—as Roommate’s
search function is alleged to do here. Therefore, such search
engines play no part in the “development” of any unlawful
searches. See 47 U.S.C. § 230(f)(3).
[10] It’s true that the broadest sense of the term “develop”
could include the functions of an ordinary search engine—
indeed, just about any function performed by a website. But
to read the term so broadly would defeat the purposes of section
230 by swallowing up every bit of the immunity that the
section otherwise provides. At the same time, reading the
exception for co-developers as applying only to content that
3462 FAIR HOUSING COUNCIL v. ROOMMATES.COM
originates entirely with the website—as the dissent would
seem to suggest—ignores the words “development . . . in
part” in the statutory passage “creation or development in
whole or in part.” 47 U.S.C. § 230(f)(3) (emphasis added).
We believe that both the immunity for passive conduits and
the exception for co-developers must be given their proper
scope and, to that end, we interpret the term “development”
as referring not merely to augmenting the content generally,
but to materially contributing to its alleged unlawfulness. In
other words, a website helps to develop unlawful content, and
thus falls within the exception to section 230, if it contributes
materially to the alleged illegality of the conduct.
The dissent accuses us of “rac[ing] past the plain language
of the statute,” dissent at 3493, but we clearly do pay close
attention to the statutory language, particularly the word “develop,”
which we spend many pages exploring. The dissent
may disagree with our definition of the term, which is entirely
fair, but surely our dissenting colleague is mistaken in suggesting
we ignore the term. Nor is the statutory language quite
as plain as the dissent would have it. Dissent at 3491-93.
Quoting selectively from the dictionary, the dissent comes up
with an exceedingly narrow definition of this rather complex
and multi faceted term.22 Dissent at 3491 (defining development
as “gradual advance or growth through progressive
changes”) (quoting Webster’s Third New International Dictionary
618 (2002)). The dissent does not pause to consider how
such a definition could apply to website content at all, as it
excludes the kinds of swift and disorderly changes that are the
hallmark of growth on the Internet. Had our dissenting colleague
looked just a few lines lower on the same page of the
22Development, it will be recalled, has many meanings, which differ
materially depending on context. Thus, “development” when used as part
of the phrase “research and development” means something quite different
than when referring to “mental development,” and something else again
when referring to “real estate development,” “musical development” or
“economic development.”
FAIR HOUSING COUNCIL v. ROOMMATES.COM 3463
same edition of the same dictionary, she would have found
another definition of “development” that is far more suitable
to the context in which we operate: “making usable or available.”
Id. The dissent does not explain why the definition it
has chosen reflects the statute’s “plain meaning,” while the
ones it bypasses do not.
More fundamentally, the dissent does nothing at all to grapple
with the difficult statutory problem posed by the fact that
section 230(c) uses both “create” and “develop” as separate
bases for loss of immunity. Everything that the dissent
includes within its cramped definition of “development” fits
just as easily within the definition of “creation”—which renders
the term “development” superfluous. The dissent makes
no attempt to explain or offer examples as to how its interpretation
of the statute leaves room for “development” as a separate
basis for a website to lose its immunity, yet we are
advised by the Supreme Court that we must give meaning to
all statutory terms, avoiding redundancy or duplication wherever
possible. See Park ‘N Fly, Inc. v. Dollar Park & Fly,
Inc., 469 U.S. 189, 197 (1985).
While content to pluck the “plain meaning” of the statute
from a dictionary definition that predates the Internet by decades,
compare Webster’s Third New International Dictionary
618 (1963) with Webster’s Third New International Dictionary
618 (2002) (both containing “gradual advance or growth
through progressive changes”), the dissent overlooks the far
more relevant definition of “[web] content development” in
Wikipedia: “the process of researching, writing, gathering,
organizing and editing information for publication on web
sites.” Wikipedia, Content Development (Web), http://
en.wikipedia.org/w/index.php?title=Content_development_
%28web%29&oldid=188219503 (last visited Mar. 19, 2008).
Our interpretation of “development” is entirely in line with
the context-appropriate meaning of the term, and easily fits
the activities Roommate engages in.
3464 FAIR HOUSING COUNCIL v. ROOMMATES.COM
In an abundance of caution, and to avoid the kind of misunderstanding
the dissent seems to encourage, we offer a few
examples to elucidate what does and does not amount to “development”
under section 230 of the Communications
Decency Act: If an individual uses an ordinary search engine
to query for a “white roommate,” the search engine has not
contributed to any alleged unlawfulness in the individual’s
conduct; providing neutral tools to carry out what may be
unlawful or illicit searches does not amount to “development”
for purposes of the immunity exception. A dating website that
requires users to enter their sex, race, religion and marital status
through drop-down menus, and that provides means for
users to search along the same lines, retains its CDA immunity
insofar as it does not contribute to any alleged illegality;23
this immunity is retained even if the website is sued for libel
based on these characteristics because the website would not
have contributed materially to any alleged defamation. Similarly,
a housing website that allows users to specify whether
they will or will not receive emails by means of user-defined
criteria might help some users exclude email from other users
of a particular race or sex. However, that website would be
immune, so long as it does not require the use of discriminatory
criteria. A website operator who edits user-created
content—such as by correcting spelling, removing obscenity
or trimming for length—retains his immunity for any illegality
in the user-created content, provided that the edits are
unrelated to the illegality. However, a website operator who
edits in a manner that contributes to the alleged illegality—
such as by removing the word “not” from a user’s message
reading “[Name] did not steal the artwork” in order to transform
an innocent message into a libelous one—is directly
involved in the alleged illegality and thus not immune.24
23It is perfectly legal to discriminate along those lines in dating, and
thus there can be no claim based solely on the content of these questions.
24Requiring website owners to refrain from taking affirmative acts that
are unlawful does not strike us as an undue burden. These are, after all,
businesses that are being held responsible only for their own conduct;
FAIR HOUSING COUNCIL v. ROOMMATES.COM 3465
[11] Here, Roommate’s connection to the discriminatory
filtering process is direct and palpable: Roommate designed
its search and email systems to limit the listings available to
subscribers based on sex, sexual orientation and presence of
children.25 Roommate selected the criteria used to hide listings,
and Councils allege that the act of hiding certain listings
is itself unlawful under the Fair Housing Act, which prohibits
brokers from steering clients in accordance with discriminatory
preferences.26 We need not decide the merits of Councils’
claim to hold that Roommate is sufficiently involved with the
design and operation of the search and email systems—which
are engineered to limit access to housing on the basis of the
protected characteristics elicited by the registration process—
so as to forfeit any immunity to which it was otherwise entitled
under section 230.
there is no vicarious liability for the misconduct of their customers. Compliance
with laws of general applicability seems like an entirely justified
burden for all businesses, whether they operate online or through quaint
brick-and-mortar facilities. Insofar, however, as a plaintiff would bring a
claim under state or federal law based on a website operator’s passive
acquiescence in the misconduct of its users, the website operator would
likely be entitled to CDA immunity. This is true even if the users committed
their misconduct using electronic tools of general applicability provided
by the website operator.
25Of course, the logic of Roommate’s argument is not limited to discrimination
based on these particular criteria. If Roommate were free to
discriminate in providing housing services based on sex, there is no reason
another website could not discriminate based on race, religion or national
origin. Nor is its logic limited to housing; it would apply equally to web-
sites providing employment or educational opportunities—or anything
else, for that matter.
26The dissent argues that Roommate is not liable because the decision
to discriminate on these grounds does not originate with Roommate;
instead, “users have chosen to select characteristics that they find desirable.”
Dissent at 3493. But, it is Roommate that forces users to express a
preference and Roommate that forces users to disclose the information that
can form the basis of discrimination by others. Thus, Roommate makes
discrimination both possible and respectable.
3466 FAIR HOUSING COUNCIL v. ROOMMATES.COM
Roommate’s situation stands in stark contrast to Stratton
Oakmont, the case Congress sought to reverse through passage
of section 230. There, defendant Prodigy was held liable
for a user’s unsolicited message because it attempted to
remove some problematic content from its website, but didn’t
remove enough. Here, Roommate is not being sued for
removing some harmful messages while failing to remove
others; instead, it is being sued for the predictable consequences
of creating a website designed to solicit and enforce
housing preferences that are alleged to be illegal.
We take this opportunity to clarify two of our previous rulings
regarding the scope of section 230 immunity. Today’s
holding sheds additional light on Batzel v. Smith, 333 F.3d
1018 (9th Cir. 2003). There, the editor of an email newsletter
received a tip about some artwork, which the tipster falsely
alleged to be stolen. The newsletter editor incorporated the
tipster’s email into the next issue of his newsletter and added
a short headnote, which he then emailed to his subscribers.27
The art owner sued for libel and a split panel held the newsletter
editor to be immune under section 230 of the CDA.28
Our opinion is entirely consistent with that part of Batzel
which holds that an editor’s minor changes to the spelling,
grammar and length of third-party content do not strip him of
section 230 immunity. None of those changes contributed to
the libelousness of the message, so they do not add up to “development”
as we interpret the term. See pp. 3461-64 supra.
Batzel went on to hold that the editor could be liable for
27Apparently, it was common practice for this editor to receive and forward
tips from his subscribers. In effect, the newsletter served as a heavily
moderated discussion list.
28As an initial matter, the Batzel panel held that the defendant newsletter
editor was a “user” of an interactive computer service within the definition
provided by section 230. While we have our doubts, we express no view
on this issue because it is not presented to us. See p. 3452 n.7 supra. Thus,
we assume that the editor fell within the scope of section 230’s coverage
without endorsing Batzel’s analysis on this point.
FAIR HOUSING COUNCIL v. ROOMMATES.COM 3467
selecting the tipster’s email for inclusion in the newsletter,
depending on whether or not the tipster had tendered the piece
to the editor for posting online, and remanded for a determination
of that issue. Batzel, 333 F.3d at 1035.
[12] The distinction drawn by Batzel anticipated the
approach we take today. As Batzel explained, if the tipster
tendered the material for posting online, then the editor’s job
was, essentially, to determine whether or not to prevent its
posting—precisely the kind of activity for which section 230
was meant to provide immunity.29 And any activity that can
be boiled down to deciding whether to exclude material that
third parties seek to post online is perforce immune under section
230. See p. 3468-69 & n.32 infra. But if the editor publishes
material that he does not believe was tendered to him
for posting online, then he is the one making the affirmative
decision to publish, and so he contributes materially to its
allegedly unlawful dissemination. He is thus properly deemed
a developer and not entitled to CDA immunity. See Batzel,
333 F.3d at 1033.30
29As Batzel pointed out, there can be no meaningful difference between
an editor starting with a default rule of publishing all submissions and then
manually selecting material to be removed from publication, and a default
rule of publishing no submissions and manually selecting material to be
published—they are flip sides of precisely the same coin. Batzel, 333 F.3d
at 1032 (“The scope of [section 230] immunity cannot turn on whether the
publisher approaches the selection process as one of inclusion or removal,
as the difference is one of method or degree, not substance.”).
30The dissent scores a debater’s point by noting that the same activity
might amount to “development” or not, depending on whether it contributes
materially to the illegality of the content. Dissent at 3489. But we are
not defining “development” for all purposes; we are defining the term only
for purposes of determining whether the defendant is entitled to immunity
for a particular act. This definition does not depend on finding substantive
liability, but merely requires analyzing the context in which a claim is
brought. A finding that a defendant is not immune is quite distinct from
finding liability: On remand, Roommate may still assert other defenses to
liability under the Fair Housing Act, or argue that its actions do not violate
the Fair Housing Act at all. Our holding is limited to a determination that
the CDA provides no immunity to Roommate’s actions in soliciting and
developing the content of its website; whether that content is in fact illegal
is a question we leave to the district court.
3468 FAIR HOUSING COUNCIL v. ROOMMATES.COM
We must also clarify the reasoning undergirding our holding
in Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th
Cir. 2003), as we used language there that was unduly broad.
In Carafano, an unknown prankster impersonating actress
Christianne Carafano created a profile for her on an online
dating site. The profile included Carafano’s home address and
suggested that she was looking for an unconventional liaison.
When Carafano received threatening phone calls, she sued the
dating site for publishing the unauthorized profile. The site
asserted immunity under section 230. We correctly held that
the website was immune, but incorrectly suggested that it
could never be liable because “no [dating] profile has any
content until a user actively creates it.” Id. at 1124. As we
explain above, see pp. 3458-64 supra, even if the data are
supplied by third parties, a website operator may still contribute
to the content’s illegality and thus be liable as a developer.31
Providing immunity every time a website uses data initially
obtained from third parties would eviscerate the exception to
section 230 for “develop[ing]” unlawful content “in whole or
in part.” 47 U.S.C. § 230(f)(3).
We believe a more plausible rationale for the unquestionably
correct result in Carafano is this: The allegedly libelous
content there—the false implication that Carafano was
unchaste—was created and developed entirely by the malevolent
user, without prompting or help from the website operator.
To be sure, the website provided neutral tools, which the
anonymous dastard used to publish the libel, but the website
did absolutely nothing to encourage the posting of defamatory
content—indeed, the defamatory posting was contrary to the
website’s express policies. The claim against the website was,
in effect, that it failed to review each user-created profile to
ensure that it wasn’t defamatory. That is precisely the kind of
activity for which Congress intended to grant absolution with
31We disavow any suggestion that Carafano holds an information content
provider automatically immune so long as the content originated with
another information content provider. 339 F.3d at 1125.
FAIR HOUSING COUNCIL v. ROOMMATES.COM 3469
the passage of section 230. With respect to the defamatory
content, the website operator was merely a passive conduit
and thus could not be held liable for failing to detect and
remove it.32
By contrast, Roommate both elicits the allegedly illegal
content and makes aggressive use of it in conducting its business.
Roommate does not merely provide a framework that
could be utilized for proper or improper purposes; rather,
Roommate’s work in developing the discriminatory questions,
discriminatory answers and discriminatory search mechanism
is directly related to the alleged illegality of the site. Unlike
Carafano, where the website operator had nothing to do with
the user’s decision to enter a celebrity’s name and personal
information in an otherwise licit dating service, here, Roommate
is directly involved with developing and enforcing a system
that subjects subscribers to allegedly discriminatory
housing practices.
Our ruling today also dovetails with another facet of Carafano:
The mere fact that an interactive computer service “classifies
user characteristics . . . does not transform [it] into a
‘developer’ of the ‘underlying misinformation.’ ” Carafano,
339 F.3d at 1124. Carafano, like Batzel, correctly anticipated
our common-sense interpretation of the term “develop[ ]” in
section 230. Of course, any classification of information, like
the sorting of dating profiles by the type of relationship
sought in Carafano, could be construed as “develop[ment]”
under an unduly broad reading of the term. But, once again,
such a broad reading would sap section 230 of all meaning.
The salient fact in Carafano was that the website’s classifi
32Section 230 requires us to scrutinize particularly closely any claim
that can be boiled down to the failure of an interactive computer service
to edit or block user-generated content that it believes was tendered for
posting online, see pp. 3466-67 supra, as that is the very activity Congress
sought to immunize by passing the section. See pp. 3453-55 supra.
3470 FAIR HOUSING COUNCIL v. ROOMMATES.COM
cations of user characteristics did absolutely nothing to
enhance the defamatory sting of the message, to encourage
defamation or to make defamation easier: The site provided
neutral tools specifically designed to match romantic partners
depending on their voluntary inputs. By sharp contrast,
Roommate’s website is designed to force subscribers to
divulge protected characteristics and discriminatory preferences,
and to match those who have rooms with those who are
looking for rooms based on criteria that appear to be prohibited
by the FHA.33
33The dissent coyly suggests that our opinion “sets us apart from” other
circuits, Dissent at 3479, 3483-84, carefully avoiding the phrase “intercircuit
conflict.” And with good reason: No other circuit has considered
a case like ours and none has a case that even arguably conflicts with our
holding today. No case cited by the dissent involves active participation
by the defendant in the creation or development of the allegedly unlawful
content; in each, the interactive computer service provider passively
relayed content generated by third parties, just as in Stratton Oakmont, and
did not design its system around the dissemination of unlawful content.
In Chicago Lawyers’ Committee for Civil Rights Under Law, Inc. v.
craigslist, Inc., No. 07-1101 (7th Cir. Mar. 14, 2008), the Seventh Circuit
held the online classified website craigslist immune from liability for discriminatory
housing advertisements submitted by users. Craigslist’s service
works very much like the “Additional Comments” section of
Roommate’s website, in that users are given an open text prompt in which
to enter any description of the rental property without any structure
imposed on their content or any requirement to enter discriminatory information:
Nothing in the service craigslist offers induces anyone to post any
particular listing or express a preference for discrimination . . . .” Slip op.
at 9. We similarly hold the “Additional Comments” section of Roommate’s
site immune, see pp. 3471-75 infra. Consistent with our opinion,
the Seventh Circuit explained the limited scope of section 230(c) immunity.
Craigslist, slip op. at 5-7. More directly, the Seventh Circuit noted
in dicta that “causing a particular statement to be made, or perhaps [causing]
the discriminatory content of a statement” might be sufficient to
create liability for a website. Slip op. at 9 (emphasis added). Despite the
dissent’s attempt to imply the contrary, the Seventh Circuit’s opinion is
actually in line with our own.
In Universal Communications Systems v. Lycos, Inc., the First Circuit
held a message board owner immune under the CDA for defamatory comments
posted on a message board. 478 F.3d 413 (1st Cir. 2007). The alleg
FAIR HOUSING COUNCIL v. ROOMMATES.COM 3471
3. Councils finally argue that Roommate should be held liable
for the discriminatory statements displayed in the “Additional
Comments” section of profile pages. At the end of the
registration process, on a separate page from the other registration
steps, Roommate prompts subscribers to “tak[e] a
moment to personalize your profile by writing a paragraph or
two describing yourself and what you are looking for in a
roommate.” The subscriber is presented with a blank text box,
in which he can type as much or as little about himself as he
wishes. Such essays are visible only to paying subscribers.
Subscribers provide a variety of provocative, and often
edly defamatory comments were made without any prompting or
encouragement by defendant: “[T]here is not even a colorable argument
that any misinformation was prompted by Lycos’s registration process or
its link structure.” Id. at 420.
Green v. America Online, 318 F.3d 465 (3d Cir. 2003), falls yet farther
from the mark. There, AOL was held immune for derogatory comments
and malicious software transmitted by other defendants through AOL’s
“Romance over 30” “chat room.” There was no allegation that AOL solicited
the content, encouraged users to post harmful content or otherwise
had any involvement whatsoever with the harmful content, other than
through providing “chat rooms” for general use.
In Ben Ezra, Weinstein, and Co. v. America Online Inc., 206 F.3d 980
(10th Cir. 2000), the Tenth Circuit held AOL immune for relaying inaccurate
stock price information it received from other vendors. While AOL
undoubtedly participated in the decision to make stock quotations available
to members, it did not cause the errors in the stock data, nor did it
encourage or solicit others to provide inaccurate data. AOL was immune
because “Plaintiff could not identify any evidence indicating Defendant
[AOL] developed or created the stock quotation information.” Id. at 985
n.5.
And, finally, in Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir.
1997), the Fourth Circuit held AOL immune for yet another set of defamatory
and harassing message board postings. Again, AOL did not solicit the
harassing content, did not encourage others to post it, and had nothing to
do with its creation other than through AOL’s role as the provider of a
generic message board for general discussions.
3472 FAIR HOUSING COUNCIL v. ROOMMATES.COM
very revealing, answers. The contents range from subscribers
who “[p]ref[er] white Male roommates” or require that “[t]he
person applying for the room MUST be a BLACK GAY
MALE” to those who are “NOT looking for black muslims.”
Some common themes are a desire to live without “drugs,
kids or animals” or “smokers, kids or druggies,” while a few
subscribers express more particular preferences, such as preferring
to live in a home free of “psychos or anyone on mental
medication.” Some subscribers are just looking for someone
who will get along with their significant other34 or with their
most significant Other.35
[13] Roommate publishes these comments as written.36 It
does not provide any specific guidance as to what the essay
should contain, nor does it urge subscribers to input discriminatory
preferences. Roommate is not responsible, in whole or
in part, for the development of this content, which comes
entirely from subscribers and is passively displayed by Roommate.
Without reviewing every essay, Roommate would have
no way to distinguish unlawful discriminatory preferences
from perfectly legitimate statements. Nor can there be any
doubt that this information was tendered to Roommate for
publication online. See pp. 3466-67 supra. This is precisely
the kind of situation for which section 230 was designed to
provide immunity. See pp. 3453-3455 supra.
[14] The fact that Roommate encourages subscribers to
provide something in response to the prompt is not enough to
make it a “develop[er]” of the information under the
common-sense interpretation of the term we adopt today. It is
34“The female we are looking for hopefully wont [sic] mind having a
little sexual incounter [sic] with my boyfriend and I [very sic].”
35“We are 3 Christian females who Love our Lord Jesus Christ . . . . We
have weekly bible studies and bi-weekly times of fellowship.”
36It is unclear whether Roommate performs any filtering for obscenity
or “spam,” but even if it were to perform this kind of minor editing and
selection, the outcome would not change. See Batzel, 333 F.3d at 1031.
FAIR HOUSING COUNCIL v. ROOMMATES.COM 3473
entirely consistent with Roommate’s business model to have
subscribers disclose as much about themselves and their preferences
as they are willing to provide. But Roommate does
not tell subscribers what kind of information they should or
must include as “Additional Comments,” and certainly does
not encourage or enhance any discriminatory content created
by users. Its simple, generic prompt does not make it a developer
of the information posted.37
Councils argue that—given the context of the discriminatory
questions presented earlier in the registration process—
the “Additional Comments” prompt impliedly suggests that
subscribers should make statements expressing a desire to discriminate
on the basis of protected classifications; in other
words, Councils allege that, by encouraging some discriminatory
preferences, Roommate encourages other discriminatory
preferences when it gives subscribers a chance to describe
themselves. But the encouragement that bleeds over from one
part of the registration process to another is extremely weak,
if it exists at all. Such weak encouragement cannot strip a
website of its section 230 immunity, lest that immunity be
rendered meaningless as a practical matter.38
We must keep firmly in mind that this is an immunity statute
we are expounding, a provision enacted to protect web-
sites against the evil of liability for failure to remove
37Nor would Roommate be the developer of discriminatory content if it
provided a free-text search that enabled users to find keywords in the “Additional
Comments” of others, even if users utilized it to search for discriminatory
keywords. Providing neutral tools for navigating websites is
fully protected by CDA immunity, absent substantial affirmative conduct
on the part of the website creator promoting the use of such tools for
unlawful purposes.
38It’s true that, under a pedantic interpretation of the term “develop,”
any action by the website—including the mere act of making a text box
available to write in—could be seen as “develop[ing]” content. However,
we have already rejected such a broad reading of the term “develop”
because it would defeat the purpose of section 230. See pp. 3461-64 supra.
3474 FAIR HOUSING COUNCIL v. ROOMMATES.COM
offensive content. See pp. 3453-3455 supra. 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 web-
sites not merely from ultimate liability, but from having to
fight costly and protracted legal battles.
[15] The dissent prophesies doom and gloom for countless
Internet services, Dissent at 3490-91, but fails to recognize
that we hold part of Roommate’s service entirely immune
from liability. The search engines the dissent worries about,
id., closely resemble the “Additional Comments” section of
Roommate’s website. Both involve a generic text prompt with
no direct encouragement to perform illegal searches or to publish
illegal content. We hold Roommate immune and there is
no reason to believe that future courts will have any difficulty
applying this principle.39 The message to website operators is
39The dissent also accuses us of creating uncertainty that will chill the
continued growth of commerce on the Internet. Dissent at 3496. Even
looking beyond the fact that the Internet has outgrown its swaddling
clothes and no longer needs to be so gently coddled, see p. 3456 n.15
supra, some degree of uncertainty is inevitable at the edge of any rule of
law. Any immunity provision, including section 230, has its limits and
there will always be close cases. Our opinion extensively clarifies where
that edge lies, and gives far more guidance than our previous cases. While
the dissent disagrees about the scope of the immunity, there can be little
doubt that website operators today know more about how to conform their
conduct to the law than they did yesterday.
FAIR HOUSING COUNCIL v. ROOMMATES.COM 3475
clear: If you don’t encourage illegal content, or design your
website to require users to input illegal content, you will be
immune.
We believe that this distinction is consistent with the intent
of Congress to preserve the free-flowing nature of Internet
speech and commerce without unduly prejudicing the
enforcement of other important state and federal laws. When
Congress passed section 230 it didn’t intend to prevent the
enforcement of all laws online; rather, it sought to encourage
interactive computer services that provide users neutral tools
to post content online to police that content without fear that
through their “good samaritan . . . screening of offensive
material,” 47 U.S.C. § 230(c), they would become liable for
every single message posted by third parties on their website.
***
[16] In light of our determination that the CDA does not
provide immunity to Roommate for all of the content of its
website and email newsletters, we remand for the district
court to determine in the first instance whether the alleged
actions for which Roommate is not immune violate the Fair
Housing Act, 42 U.S.C. § 3604(c).40 We vacate the dismissal
However, a larger point remains about the scope of immunity provisions.
It’s no surprise that defendants want to extend immunity as broadly
as possible. We have long dealt with immunity in different, and arguably
far more important, contexts—such as qualified immunity for police officers
in the line of duty, see Clement v. J&E Service Inc., No. 05-56692,
slip op. at 2347 (9th Cir. Mar. 11, 2008)—and observed many defendants
argue that the risk of getting a close case wrong is a justification for
broader immunity. Accepting such an argument would inevitably lead to
an endless broadening of immunity, as every new holding creates its own
borderline cases.
40We do not address Roommate’s claim that its activities are protected
by the First Amendment. The district court based its decision entirely on
the CDA and we refrain from deciding an issue that the district court has
not had the opportunity to evaluate. See Mukherjee v. INS, 793 F.2d 1006,
1010 (9th Cir. 1986).
3476 FAIR HOUSING COUNCIL v. ROOMMATES.COM
of the state law claims so that the district court may reconsider
whether to exercise its supplemental jurisdiction in light
of our ruling on the federal claims. Fredenburg v. Contra
Costa County Dep’t of Health Servs., 172 F.3d 1176, 1183
(9th Cir. 1999). We deny Roommate’s cross-appeal of the
denial of attorneys’ fees and costs; Councils prevail on some
of their arguments before us so their case is perforce not frivolous.
REVERSED in part, VACATED in part, AFFIRMED
in part and REMANDED. NO COSTS.
McKEOWN, Circuit Judge, with whom RYMER and BEA,
Circuit Judges, join, concurring in part and dissenting in part:
The ubiquity of the Internet is undisputed. With more than
1.3 billion Internet users and over 158 million websites in existence,
1 a vast number of them interactive like Google, Yahoo!,
Craigslist, MySpace, YouTube, and Facebook, the question of
webhost liability is a significant one. On a daily basis, we rely
on the tools of cyberspace to help us make, maintain, and
rekindle friendships; find places to live, work, eat, and travel;
exchange views on topics ranging from terrorism to patriotism;
and enlighten ourselves on subjects from “aardvarks to
Zoroastrianism.”2
The majority’s unprecedented expansion of liability for
Internet service providers threatens to chill the robust development
of the Internet that Congress envisioned. The majority
condemns Roommate’s “search system,” a function that is the
1Internet World Stats, World Internet Users: December 2007, http://
www.internetworldstats.com/stats.htm (last visited Mar. 14, 2008);
Netcraft, February 2008 Web Server Survey, http://news.netcraft.com/
archives/web_server_survey.html (last visited Mar. 14, 2008).
2Ashcroft v. ACLU, 535 U.S. 564, 566 (2002).
FAIR HOUSING COUNCIL v. ROOMMATES.COM 3477
heart of interactive service providers. My concern is not an
empty Chicken Little “sky is falling” alert. By exposing every
interactive service provider to liability for sorting, searching,
and utilizing the all too familiar drop-down menus, the majority
has dramatically altered the landscape of Internet liability.
Instead of the “robust”3 immunity envisioned by Congress,
interactive service providers are left scratching their heads
and wondering where immunity ends and liability begins.
To promote the unfettered development of the Internet,
Congress adopted the Communications Decency Act of 1996
(“CDA”), which provides that interactive computer service
providers will not be held legally responsible for publishing
information provided by third parties. 47 U.S.C. § 230(c)(1).
Even though traditional publishers retain liability for performing
essentially equivalent acts in the “non-virtual world,”
Congress chose to treat interactive service providers differently
by immunizing them from liability stemming from sorting,
searching, and publishing third-party information. As we
explained in Batzel v. Smith:
[Section] 230(c)(1)[ ] overrides the traditional treatment
of publishers, distributors, and speakers under
statutory and common law. As a matter of policy,
“Congress decided not to treat providers of interactive
computer services like other information providers
such as newspapers, magazines or television and
radio stations . . . .” Congress . . . has chosen to treat
cyberspace differently.
333 F.3d 1018, 1026-1027 (9th Cir. 2003) (quoting Blumenthal
v. Drudge, 992 F. Supp. 44, 49 (D.D.C
