Roommates dot com case

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. 1998) (footnote
omitted)).
3Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1123 (9th Cir.
2003).
3478 FAIR HOUSING COUNCIL v. ROOMMATES.COM
Now, with the stroke of a pen or, more accurately, a few
strokes of the keyboard, the majority upends the settled view
that interactive service providers enjoy broad immunity when
publishing information provided by third parties. Instead,
interactive service providers are now joined at the hip with
third-party users, and they rise and fall together in liability for
Internet sortings and postings.
To be sure, the statute, which was adopted just as the Internet
was beginning a surge of popular currency,4 is not a perfect
match against today’s technology. The Web 2.0 version
is a far cry from web technology in the mid-1990s. Nonetheless,
the basic message from Congress has retained its traction,
and there should be a high bar to liability for organizing
and searching third-party information. The bipartisan view in
Congress was that the Internet, as a new form of communication,
should not be impeded by the transference of regulations
and principles developed from traditional modes of communication.
The majority repeatedly harps that if something is prohibited
in the physical world, Congress could not have
intended it to be legal in cyberspace. Yet that is precisely the
path Congress took with the CDA: the anomaly that a web-
host may be immunized for conducting activities in cyberspace
that would traditionally be cause for liability is exactly
what Congress intended by enacting the CDA.
In the end, the majority offers interactive computer service
providers no bright lines and little comfort in finding a home
within § 230(c)(1). The result in this case is driven by the distaste
for housing discrimination, a laudable endgame were
housing the real focus of this appeal. But it is not. I share the
majority’s view that housing discrimination is a troubling
issue. Nevertheless, we should be looking at the housing issue
4According to one commentator, in 1985, there were approximately
1,000 host computers connected to the Internet; by 1995, that number had
exploded to 4,000,000. Paul H. Arne, New Wine in Old Bottles: The
Developing Law of the Internet, 416 PLI/Pat 9, 15 (Sept. 1995).
FAIR HOUSING COUNCIL v. ROOMMATES.COM 3479
through the lens of the Internet, not from the perspective of
traditional publisher liability. Whether § 230(c)(1) trumps the
Fair Housing Act (“FHA”) is a policy decision for Congress,
not us. Congress has spoken: third-party content on the Internet
should not be burdened with the traditional legal framework.
I respectfully part company with the majority as to Part 25
of the opinion because the majority has misconstrued the statutory
protection under the CDA for Roommate’s publishing
and sorting of user profiles. The plain language and structure
of the CDA unambiguously demonstrate that Congress
intended these activities—the collection, organizing, analyzing,
searching, and transmitting of third-party content—to be
beyond the scope of traditional publisher liability. The majority’s
decision, which sets us apart from five circuits, contravenes
congressional intent and violates the spirit and
serendipity of the Internet.
Specifically, the majority’s analysis is flawed for three reasons:
(1) the opinion conflates the questions of liability under
the FHA and immunity under the CDA; (2) the majority
rewrites the statute with its definition of “information content
provider,” labels the search function “information development,”
and strips interactive service providers of immunity;
and (3) the majority’s approach undermines the purpose of
§ 230(c)(1) and has far-reaching practical consequences in the
Internet world.
5The complaint centers on the responses and profiles generated by the
users. To the extent that the inquiry in isolation is part of the claims, then
I agree with Part 1 of the majority’s opinion that § 230(c)(1) would not
protect Roommate. However, I cannot join the majority insofar as it eviscerates
the distinction between traditional publishers and webhosts. See,
e.g., Maj. Op. at 3456 (ignoring the Congressional carveout for interactive
service providers and concluding that if a face-to-face transaction were
illegal, it could not be legal in cyberspace).
3480 FAIR HOUSING COUNCIL v. ROOMMATES.COM
To begin, it is important to recognize what this appeal is
not about. At this stage, there has been no determination of
liability under the FHA, nor has there been any determination
that the questions, answers or even the existence of Roommate’s
website violate the FHA. The FHA is a complicated
statute and there may well be room for potential roommates
to select who they want to live with, e.g., a tidy accountant
wanting a tidy professional roommate, a collegiate male
requesting a male roommate, an observant Jew needing a
house with a kosher kitchen, or a devout, single, religious
female preferring not to have a male housemate. It also bears
noting that even if Roommate is immune under the CDA, the
issue of user liability for allegedly discriminatory preferences
is a separate question. See Zeran v. Am. Online, Inc., 129 F.3d
327, 330 (4th Cir. 1997) (stating that “the original culpable
party” does not “escape accountability”).
By offering up inflammatory examples, the majority’s
opinion screams “discrimination.” The hazard is, of course,
that the question of discrimination has not yet been litigated.
In dissenting, I do not condone housing discrimination or
endorse unlawful discriminatory roommate selection practices;
I simply underscore that the merits of the FHA claim
are not before us. However, one would not divine this posture
from the majority’s opinion, which is infused with condemnation
of Roommate’s users’ practices. To mix and match, as
does the majority, the alleged unlawfulness of the information
with the question of webhost immunity is to rewrite the statute.
Examples from the opinion highlight that the majority’s
conclusion rests on the premise that Roommate’s questions
and matching function violate the FHA:
•
“Unlawful questions solicit (a.k.a. ‘develop’)
unlawful answers.” Maj. Op. at 3459.
•
“If such questions are unlawful when posed faceto-
face or by telephone, they don’t magically
FAIR HOUSING COUNCIL v. ROOMMATES.COM 3481
become lawful when asked electronically
online.” Id. at 3456.
•
“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.” Id. at 3461.
•
“Roommate’s search function 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.” Id.
•
“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.” Id.
•
“Roommate’s website is designed to force subscribers
to divulge protected characteristics and
discriminatory preferences.” Id. at 3470.
The entire opinion links Roommate’s ostensibly reprehensible
conduct (and that of its users) with an unprecedented
interpretation of the CDA’s immunity provision. The majority
condemns Roommate for soliciting illegal content, but there
has been no determination that Roommate’s questions or standardized
answers are illegal. Instead of foreshadowing a ruling
on the FHA, the opinion should be confined to the issue
before us—application of § 230(c)(1) to Roommate. The district
court has not yet ruled on the merits of the FHA claim
and neither should we.
3482 FAIR HOUSING COUNCIL v. ROOMMATES.COM
The Statute
With this background in mind, I first turn to the text of the
statute. Section 230 begins with a detailed recitation of findings
and policy reasons for the statute. Congress expressly
found that the “Internet and other interactive computer services
offer a forum for a true diversity of political discourse,
unique opportunities for cultural development, and myriad
avenues for intellectual activity,” and that “[i]ncreasingly
Americans are relying on interactive media for a variety of
political, educational, cultural, and entertainment services.”
47 U.S.C. § 230(a)(3), (5). Congress declared that “[i]t is the
policy of the United States to . . . promote the continued
development of the Internet and other interactive computer
services and other interactive media.” § 230(b)(1).6
Unlike some statutes, subsections (a) and (b) set out in
clear terms the congressional findings and policies underlying
the statute. For this reason, it strikes me as odd that the majority
begins, not with the statute and these express findings, but
with legislative history. Granted, Congress was prompted by
several cases, particularly the Prodigy case, to take action to
protect interactive service providers. See Stratton Oakmont,
Inc. v. Prodigy Servs. Co., 1995 N.Y. Misc. LEXIS 229 (N.Y.
Sup. Ct. May 24, 1995). But that case does not cabin the
scope of the statute, and the background leading up to enactment
of the CDA is no substitute for the language of the statute
itself. See Chicago Lawyers’ Comm. for Civil Rights
Under the Law, Inc. v. Craigslist, Inc., No. 07-1101, slip op.
at 8 (7th Cir. Mar. 14, 2008) (concluding that, as enacted,
“Section 230(c)(1) is general[,]” despite its “genesis” in Prodigy).
6The statute also seeks to “remove disincentives for the development
and utilization of blocking and filtering technologies” and “to ensure vigorous
enforcement of Federal criminal laws to deter and punish trafficking
in obscenity, stalking, and harassment by means of computer.”
§ 230(b)(4), (5).
FAIR HOUSING COUNCIL v. ROOMMATES.COM 3483
Section 230(c), the heart of this case, is entitled “Protection
for ‘good samaritan’ blocking and screening of offensive
material[.]” The substantive language of the statute itself is
not so limited. Section 230(c)(1) provides:
(1) Treatment of publisher or speaker
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.
§ 230(c)(1). Since it was first addressed in 1997 in Zeran, this
section has been interpreted by the courts as providing web-
host “immunity,” although to be more precise, it provides a
safe haven for interactive computer service providers by
removing them from the traditional liabilities attached to
speakers and publishers.7 See Zeran, 129 F.3d at 330 (“By its
plain language, § 230 creates a federal immunity to any cause
of action that would make service providers liable for information
originating with a third-party user of the service.”).
We have characterized this immunity under § 230(c)(1) as
“quite robust.” Carafano, 339 F.3d at 1123. Five of our sister
circuits have similarly embraced this robust view of immunity
by providing differential treatment to interactive service providers.
Chicago Lawyers’ Comm. for Civil Rights Under the
Law, Inc. v. Craigslist, Inc., No. 07-1101, slip op. at 7-8 (7th
Cir. Mar. 14, 2008); Universal Commc’n Sys. v. Lycos, Inc.,
478 F.3d 413, 415 (1st Cir. 2007); Green v. Am. Online, 318
F.3d 465, 470 (3d Cir. 2003); Ben Ezra, Weinstein, & Co.,
Inc. v. Am. Online Inc., 206 F.3d 980, 986 (10th Cir. 2000);
7The second part of this subsection, § 230(c)(2), is more accurately
characterized as an immunity provision, but is not relevant to our discussion
here. Compare 47 U.S.C. § 230(c)(2) (stating that “[n]o provider or
user of an interactive computer service shall be held liable . . .”) (emphasis
added).
3484 FAIR HOUSING COUNCIL v. ROOMMATES.COM
Zeran, 129 F.3d at 330; see also Whitney Info. Network, Inc.
v. Xcentric Ventures, LLC, No. 2:04-cv-47-FtM-34SPC, 2008
U.S. Dist. LEXIS 11632 (M.D. Fla. Feb. 15, 2008); Doe v.
MySpace, Inc., 474 F. Supp. 2d 843, 849 (W.D. Tex. 2007);
Corbis Corp. v. Amazon.com, Inc., 351 F. Supp. 2d 1090,
1118 (W.D. Wash. 2004); Blumenthal, 992 F. Supp. at 50-53;
Barrett v. Rosenthal, 146 P.3d 510, 529 (Cal. 2006); Gentry
v. eBay, Inc., 121 Cal. Rptr. 2d 703, 717-18 (Cal. Ct. App.
2002); Schneider v. Amazon.com, Inc., 31 P.3d 37, 42-43
(Wash. Ct. App. 2001).
Key to this immunity provision are the terms “interactive
computer service” provider and “information content provider.”
The CDA 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.” § 230(f)(2). An interactive computer service
provider is not liable as a “publisher” or “speaker” of
information if the “information” is “provided by another
information content provider.” § 230(c)(1). The statute then
defines an “information content provider” as a “person or
entity that is responsible, in whole or in part, for the creation
or development of information provided through the Internet
or any other interactive computer service.” § 230(f)(3). If the
provider of an interactive computer service is an information
content provider of the information at issue, it cannot claim
immunity as a publisher or speaker. Carafano, 339 F.3d at
1123.
Courts deciding the question of § 230(c)(1) immunity “do
not write on a blank slate.” Universal Commc’n, 478 F.3d at
418. Even though rapid developments in technology have
made webhosts increasingly adept at searching and displaying
third-party information, reviewing courts have, in the twelve
years since the CDA’s enactment, “adopt[ed] a relatively
expansive definition of ‘interactive computer service’ and a
relatively restrictive definition of ‘information content provider.’
” See Carafano, 339 F.3d at 1123 (footnotes omitted). As
FAIR HOUSING COUNCIL v. ROOMMATES.COM 3485
long as information is provided by a third party, webhosts are
immune from liability for publishing “ads for housing, auctions
of paintings that may have been stolen by Nazis, biting
comments about steroids in baseball, efforts to verify the truth
of politicians’ promises, and everything else that third parties
may post on a web site.” Craigslist, No. 07-1101, slip op. at
9. We have underscored that this broad grant of webhost
immunity gives effect to Congress’s stated goals “to promote
the continued development of the Internet and other interactive
computer services” and “to preserve the vibrant and competitive
free market that presently exists for the Internet and
other interactive computer services.” Carafano, 339 F.3d at
1123 (discussing § 230(b)(1), (2)).
Application of § 230(c)(1) to Roommate’s Website
Because our focus is on the term “information content provider,”
and what it means to create or develop information, it
is worth detailing exactly how the website operates, what
information is at issue and who provides it. The roommate
matching process involves three categories of data: About
Me or Household Description; Roommate Preferences; and
Comments.
To become a member of Roommates.com, a user must
complete a personal profile by selecting answers from drop-
down menus or checking off boxes on the screen. The profile
includes “location” information (e.g., city and state, region of
the city, and data about the surrounding neighborhood);
details about the residence (e.g., the total number of bedrooms
and bathrooms in the home, and amenities such as air conditioning,
wheelchair access, high-speed Internet, or parking),
and the “rental details” (e.g., monthly rent charged, lease
period, and availability). The last section of the profile is the
“Household Description” section,8 which includes the total
8A user who is a room-seeker fills out an equivalent section named
“About Me.”
3486 FAIR HOUSING COUNCIL v. ROOMMATES.COM
number of occupants in the home, their age range, gender,
occupation, level of cleanliness, whether they are smokers,
and whether children or pets are present.
The remaining sections of the registration process are completely
optional; a user who skips them has created a profile
based on the information already provided. At his option, the
user may select an emoticon to describe the “household character,”
and may upload images of the room or residence.
Next, users may, at their option, specify characteristics
desired in a potential roommate, such as a preferred age
range, gender, and level of cleanliness. If nothing is selected,
all options are included.9 The final step in the registration pro
9The following is an example of a member profile:
The Basics
Rent: $800 per month + $800 deposit
Lease: 6 month
Date available: 09/01/04 (14 days)
Utilities included: N/A
Features: Private bedroom, Private bathroom
Residence & Vicinity
Building: House, 2 bed, 1.5 bath
Features: N/A
Location: (Central) Long Beach, CA
Household
Occupant: 1, Age 26, Male (straight)
Occupation: Student
Smoking habits: Outside smoker
Cleanliness: About average
Children: Children will not be living with us
Pets: Dog(s)
Preferences
Age group: 18-99
Gender: Male (straight or gay), Female (straight or lesbian)
Smoking: Smoking okay
Cleanliness level: Clean, Average, Messy
Pets: Dog okay, Cat okay, Caged pet okay
Children: Children okay
Comments
LOOKING FOR CHILL ROOMATE [sic] TO SHARE 2 BR
HOUSE WITH DOG AND FERRET -RENT
800/MO+utill.6mo.lease.
FAIR HOUSING COUNCIL v. ROOMMATES.COM 3487
cess, which is also optional, is the “Comments” section, in
which users are presented with a blank text box in which they
may write whatever they like, to be published with their member
profiles.
Users may choose an optional “custom search” of user profiles
based on criteria that they specify, like the amount of
monthly rent or distance from a preferred city. Based on the
information provided by users during the registration process,
Roommate’s automated system then searches and matches
potential roommates. Roommate’s Terms of Service provide
in part, “You understand that we do not provide the information
on the site and that all publicly posted or privately transmitted
information, data, text, photographs, graphics,
messages, or other materials (‘Content’) are the sole responsibility
of the person from which such Content originated.”
Roommate’s users are “information content providers”
because they are responsible for creating the information in
their user profiles and, at their option — not the website’s
choice — in expressing preferences as to roommate characteristics.
§ 230(f)(3). The critical question is whether Roommate
is itself an “information content provider,” such that it cannot
claim that the information at issue was “provided by another
information content provider.” A close reading of the statute
leads to the conclusion that Roommate is not an information
content provider for two reasons: (1) providing a drop-down
menu does not constitute “creating” or “developing” information;
and (2) the structure and text of the statute make plain
that Congress intended to immunize Roommate’s sorting, displaying,
and transmitting of third-party information.
Roommate neither “creates” nor “develops” the information
that is challenged by the Councils, i.e., the information
provided by the users as to their protected characteristics and
the preferences expressed as to roommate characteristics. All
Roommate does is to provide a form with options for standardized
answers. Listing categories such as geographic loca
3488 FAIR HOUSING COUNCIL v. ROOMMATES.COM
tion, cleanliness, gender and number of occupants, and
transmitting to users profiles of other users whose expressed
information matches their expressed preferences, can hardly
be said to be creating or developing information. Even adding
standardized options does not “develop” information. Roommate,
with its prompts, is merely “selecting material for publication,”
which we have stated does not constitute the
“development” of information. Batzel, 333 F.3d at 1031. The
profile is created solely by the user, not the provider of the
interactive website. Indeed, without user participation, there is
no information at all. The drop-down menu is simply a pre-
categorization of user information before the electronic sorting
and displaying that takes place via an algorithm. If a user
has identified herself as a non-smoker and another has
expressed a preference for a non-smoking roommate, Roommate’s
sorting and matching of user information are no different
than that performed by a generic search engine.
Displaying the prompt “Gender” and offering the list of
choices, “Straight male; Gay male; Straight female; Gay
female” does not develop the information, “I am a Gay male.”
The user has identified himself as such and provided that
information to Roommate to publish. Thus, the user is the sole
creator of that information; no “development” has occurred.
In the same vein, presenting the user with a “Preferences”
section and drop-down menus of options does not “develop”
a user’s preference for a non-smoking roommate. As we
stated in Carafano, the “actual profile ‘information’ consist[s]
of the particular options chosen” by the user, such that Roommate
is not “responsible, even in part, for associating certain
multiple choice responses with a set of [ ] characteristics.”
339 F.3d at 1124.
The thrust of the majority’s proclamation that Roommate is
“developing” the information that it publishes, sorts, and
transmits is as follows: “[W]e interpret the term ‘development’
as referring not merely to augmenting the content generally,
but to materially contributing to its unlawfulness.”
FAIR HOUSING COUNCIL v. ROOMMATES.COM 3489
Maj. Op. at 3462. This definition is original to say the least
and springs forth untethered to anything in the statute.
The majority’s definition of “development” epitomizes its
consistent collapse of substantive liability with the issue of
immunity. Where in the statute does Congress say anything
about unlawfulness? Whether Roommate is entitled to immunity
for publishing and sorting profiles is wholly distinct from
whether Roommate may be liable for violations of the FHA.
Immunity has meaning only when there is something to be
immune from, whether a disease or the violation of a law. It
would be nonsense to claim to be immune only from the
innocuous. But the majority’s immunity analysis is built on
substantive liability: to the majority, CDA immunity depends
on whether a webhost materially contributed to the unlawfulness
of the information. Whether the information at issue is
unlawful and whether the webhost has contributed to its
unlawfulness are issues analytically independent of the determination
of immunity. Grasping at straws to distinguish
Roommate from other interactive websites such as Google
and Yahoo!, the majority repeatedly gestures to Roommate’s
potential substantive liability as sufficient reason to disturb its
immunity. But our task is to determine whether the question
of substantive liability may be reached in the first place.
Keep in mind that “unlawfulness” would include not only
purported statutory violations but also potential defamatory
statements. The irony is that the majority would have us
determine “guilt” or liability in order to decide whether
immunity is available. This upside-down approach would
knock out even the narrowest immunity offered under
§ 230(c) — immunity for defamation as a publisher or
speaker.
Another flaw in the majority’s approach is that it fails to
account for all of the other information allegedly developed
by the webhost. For purposes of determining whether Roommate
is an information content provider vis-a-vis the profiles,
3490 FAIR HOUSING COUNCIL v. ROOMMATES.COM
the inquiry about geography and the inquiry about gender
should stand on the same footing. Both are single word
prompts followed by a drop-down menu of options. If a
prompt about gender constitutes development, then so too
does the prompt about geography. And therein lies the rub.
Millions of websites use prompts and drop-down menus.
Inquiries range from what credit card you want to use and
consumer satisfaction surveys asking about age, sex and
household income, to dating sites, e.g., match.com, sites lambasting
corporate practices, e.g., ripoffreports.com, and sites
that allow truckers to link up with available loads, e.g.,
getloaded.com. Some of these sites are innocuous while others
may not be. Some may solicit illegal information; others
may not. But that is not the point. The majority’s definition
of “development” would transform every interactive site into
an information content provider and the result would render
illusory any immunity under § 230(c). Virtually every site
could be responsible in part for developing content.
For example, the majority purports to carve out a place for
Google and other search engines. Maj. Op. at 3461. But the
modern Google is more than a match engine: it ranks search
results, provides prompts beyond what the user enters, and
answers questions. In contrast, Roommate is a straight match
service that searches information and criteria provided by the
user, not Roommate. It should be afforded no less protection
than Google, Yahoo!, or other search engines.
The majority then argues that “providing neutral tools to
carry out what may be unlawful or illicit searches does not
amount to ‘development.’ ” Maj. Op. at 3464. But this effort
to distinguish Google, Yahoo!, and other search engines from
Roommate is unavailing. Under the majority’s definition of
“development,” these search engines are equivalent to Roommate.
Google “encourages” or “contributes” (the majority’s
catch phrases) to the unlawfulness by offering search tools
that allow the user to perform an allegedly unlawful match. If
FAIR HOUSING COUNCIL v. ROOMMATES.COM 3491
a user types into Google’s search box, “looking for a single,
Christian, female roommate,” and Google displays responsive
listings, Google is surely “materially contributing to the
alleged unlawfulness” of information created by third parties,
by publishing their intention to discriminate on the basis of
protected characteristics. In the defamation arena, a webhost’s
publication of a defamatory statement “materially contributes”
to its unlawfulness, as publication to third parties is an
element of the offense. At bottom, the majority’s definition of
“development” can be tucked in, let out, or hemmed up to fit
almost any search engine, creating tremendous uncertainty in
an area where Congress expected predictability.
“Development” is not without meaning. In Batzel, we
hinted that the “development of information” that transforms
one into an “information content provider” is “something
more substantial than merely editing portions of an email and
selecting material for publication.” 333 F.3d at 1031. We did
not flesh out further the meaning of “development” because
the editor’s alterations of an email message and decision to
publish it did not constitute “development.” Id.
Because the statute does not define “development,” we
should give the term its ordinary meaning. See San Jose
Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1034
(9th Cir. 2004) (stating that dictionaries may be used to determine
the “ ‘plain meaning’ of a term undefined by a statute”).
“Development” is defined in Webster’s Dictionary as a “gradual
advance or growth through progressive changes.” Webster’s
Third New International Dictionary 618 (2002). The
multiple uses of “development” and “develop” in other provisions
of § 230 give texture to the definition of “development,”
and further expose the folly of the majority’s ungrounded definition.
See, e.g., § 230(b)(3) (stating that “[i]t is the policy of
the United States to encourage the development of technologies
which maximize user control over what information is
received by individuals, families, and schools”) (emphasis
3492 FAIR HOUSING COUNCIL v. ROOMMATES.COM
added).10 Defining “development” in this way keeps intact the
settled rule that the CDA immunizes a webhost who exercises
a publisher’s “traditional editorial functions — such as deciding
whether to publish, withdraw, post-pone, or alter content.”
Batzel, 333 F.3d at 1031 n.18.11
Applying the plain meaning of “development” to Roommate’s
sorting and transmitting of third-party information
demonstrates that it was not transformed into an “information
content provider.” In searching, sorting, and transmitting
information, Roommate made no changes to the information
10Congress also stated in the CDA that “[i]t is the policy of the United
States to—(1) to promote the continued development of the Internet and
other interactive computer services and other interactive media,” and “(4)
to remove disincentives for the development and utilization of blocking
and filtering technologies . . .” § 230(b)(1), (4) (emphasis added).
11The majority’s notion of using a different definition of “development”
digs the majority into a deeper hole. See Maj. Op. at 3461-63. For example,
adopting the Wikipedia definition of “content development”—“the
process of researching, writing, gathering, organizing and editing information
for publication on web sites”—would run us smack into the sphere of
Congressionally conferred immunity. Wikipedia, Content Development
(Web), http://en.wikipedia.org/w/index.php?title=Content_development_
%28web%29&oldid=188219503 (last visited Mar. 24, 2008). Both our
circuit and others have steadfastly maintained that activities such as organizing
or editing information are traditional editorial functions that fall
within the scope of CDA immunity. See, e.g., Carafano, 339 F.3d at 112425;
Zeran, 129 F.3d at 330. Likewise, an alternative definition of “development”
from Webster’s such as “a making usable or available” sweeps
too broadly, as “making usable or available” is precisely what Google and
Craigslist do. In an effort to cabin the reach of the opinion, the majority
again goes back to whether the content is legal, i.e., a dating website that
requires sex, race, religion, or marital status is legal because it is legal to
discriminate in dating. See Maj. Op. at 3464. Of course this approach
ignores whether the claim may be one in tort, such as defamation, rather
than a statutory discrimination claim. And, this circularity also circumvents
the plain language of the statute. Interestingly, the majority has no
problem offering up potentially suitable definitions of “development” by
turning to dictionaries, but it fails to explain why, and from where, it
plucked its definition of “development” as “materially contributing to
[the] alleged unlawfulness” of content. See Maj. Op. at 3462.
FAIR HOUSING COUNCIL v. ROOMMATES.COM 3493
provided to it by users. Even having notice that users may be
using its site to make discriminatory statements is not sufficient
to invade Roommate’s immunity. See Zeran, 129 F.3d
at 333 (stating that “liability upon notice has a chilling effect
on the freedom of Internet speech.”).
The majority blusters that Roommate develops information,
because it “requir[es] subscribers to provide the information
as a condition of accessing its services,” and “designed its
search system so it would steer users based on the preferences
and personal characteristics that Roommate itself forces subscribers
to disclose.” Maj. Op. at 3458, 3460.12 But the majority,
without looking back, races past the plain language of the
statute. That Roommate requires users to answer a set of
prompts to identify characteristics about themselves does not
change the fact that the users have furnished this information
to Roommate for Roommate to publish in their profiles. Nor
do Roommate’s prompts alter the fact that users have chosen
to select characteristics that they find desirable in potential
roommates, and have directed Roommate to search and compile
results responsive to their requests. Moreover, tagging
Roommate with liability for the design of its search system is
dangerous precedent for analyzing future Internet cases.
Even if Roommate’s prompts and drop-down menus could
be construed to seek out, or encourage, information from
users, the CDA does not withhold immunity for the encouragement
or solicitation of information.13 See Blumenthal, 992
F. Supp. at 52 (stating that “Congress has made a different
12Again, Roommate does not force users to disclose preferences as to
roommate characteristics.
13The First Circuit has noted that “[i]t is not at all clear that there is a
culpable assistance exception to Section 230 immunity[,]” similar to the
notion of secondary liability under the Electronic Communications Privacy
Act of 1986. Universal Commc’n, 478 F.3d at 421. But it also stated
that it “need not decide whether a claim premised on active inducement
might be consistent with Section 230 in the absence of a specific exception.”
Id.
3494 FAIR HOUSING COUNCIL v. ROOMMATES.COM
policy choice by providing immunity even where the interactive
service provider has an active, even aggressive role in
making available content prepared by others.”) (emphasis
added); Gentry, 121 Cal. Rptr. 2d at 718 (noting that “enforcing
appellants’ negligence claim would place liability on eBay
for simply compiling false and/or misleading content created
by the individual defendants and other coconspirators.”). The
CDA does not countenance an exception for the solicitation
or encouragement of information provided by users.
A number of district courts have recently encountered the
claim that an interactive website’s solicitation of information,
by requiring user selection of content from drop-down menus,
transformed it into an information content provider. Unsurprisingly,
these courts reached the same commonsense solution
that I reach here: § 230(c)(1) immunizes the interactive
service provider. See Whitney Info. Network, Inc. v. Xcentric
Ventures, LLC, No. 2:04-cv-47-FtM-34SPC, 2008 U.S. Dist.
LEXIS 11632, at *36 (M.D. Fla. Feb. 15, 2008) (stating that
the “mere fact that Xcentric provides categories from which
a poster must make a selection in order to submit a report on
the [ ] website is not sufficient to treat Defendants as information
content providers of the reports”); Global Royalties, Ltd.
v. Xcentric Ventures, LLC, No. 07-956-PHX-FJM, 2007 U.S.
Dist. LEXIS 77551 (D. Ariz. Oct. 10, 2007). Simply supplying
a list of options from which a user must select options “is
minor and passive participation” that does not defeat CDA
immunity. Global Royalties, 2007 U.S. Dist. LEXIS 77551, at
*9; see also Corbis, 351 F. Supp. 2d at 1118 (holding that
even though Amazon.com “may have encouraged third parties
to use the Zshops platform and provided the tools to assist
them, that does not disqualify it from immunity under § 230
because the Zshops vendor ultimately decided what information
to put on its site.”).
Carafano presented circumstances virtually indistinguishable
from those before us, yet the majority comes to the exact
opposite conclusion here in denying immunity for sorting and
FAIR HOUSING COUNCIL v. ROOMMATES.COM 3495
matching third-party information provided in response to
webhost prompts. The website in Carafano, an online dating
service named Matchmaker.com, asked its users sixty-two
detailed questions and matched users according to their
responses. We held that § 230(c)(1) immunized the dating service,
and flatly rejected the proposition that matching, sorting,
and publishing user information in response to webhost
prompts abrogated CDA immunity. Carafano, 339 F.3d at
1124-25. A provider’s “decision to structure the information
provided by users,” which enables the provider to “offer additional
features, such as ‘matching’ profiles with similar characteristics
or highly structured searches based on
combinations of multiple choice questions,” ultimately “promotes
the expressed Congressional policy ‘to promote the
continued development of the Internet and other interactive
computer services.’ ” Id. (quoting § 230(b)(1)). Now the
majority narrows Carafano on the basis that Matchmaker did
not prompt the allegedly libelous information that was provided
by a third party. Maj. Op. at 3468. But the majority
makes this distinction without any language in the statute supporting
the consideration of the webhost’s prompting or solicitation.
The structure of the statute also supports my view that Congress
intended to immunize Roommate’s sorting and publishing
of user profiles. An “interactive computer service” is
defined to include an “access software provider.” § 230(f)(2).
The statute defines an “access software provider” as one that
provides “enabling tools” to “filter,” “screen,” “pick,”
“choose,” “analyze,” “digest,” “search,” “forward,” “organize,”
and “reorganize” content. § 230(f)(4)(A)-(C).
By providing a definition for “access software provider”
that is distinct from the definition of an “information content
provider,” and withholding immunity for “information content
providers,” the statute makes resoundingly clear that
packaging, sorting, or publishing third-party information are
not the kind of activities that Congress associated with “infor
3496 FAIR HOUSING COUNCIL v. ROOMMATES.COM
mation content providers.” Yet these activities describe
exactly what Roommate does through the publication and distribution
of user profiles: Roommate “receives,” “filters,” “digests,”
and “analyzes” the information provided by users in
response to its registration prompts, and then “transmits,” “organizes,”
and “forwards” that information to users in the form
of uniformly organized profiles. Roommate is performing
tasks that Congress recognized as typical of entities that it
intended to immunize.
Finally, consider the logical disconnect of the majority’s
opinion. The majority writes—and I agree—that the open-
ended Comments section contains only third-party content.
Maj. Op. at 3471-75. But if Roommate’s search function permits
sorting by key words such as children or gender, the
majority would label Roommate’s use of such criteria as a
“discriminatory filtering process.” Id. at 3465.
At a minimum, the CDA protects the search criteria
employed by websites and does not equate tools that “filter,”
“screen,” “pick,” “choose,” “analyze,” “digest,” “search,”
“forward,” “organize,” and “reorganize” with the “creation or
development” of information. § 230(f)(4)(A)-(C).
Ramifications of the Majority Opinion
I am troubled by the consequences that the majority’s conclusion
poses for the ever-expanding Internet community. The
unwise narrowing of our precedent, coupled with the mixing
and matching of CDA immunity with substantive liability,
make it exceedingly difficult for website providers to know
whether their activities will be considered immune under the
CDA. We got it right in Carafano, that “[u]nder § 230(c) . . .
so long as a third party willingly provides the essential published
content, the interactive service provider receives full
immunity regardless of the specific editing or selection process.”
339 F.3d at 1124 (quoted in Doe, 474 F. Supp. 2d at
847; Chicago Lawyers’ Comm. for Civil Rights Under the
FAIR HOUSING COUNCIL v. ROOMMATES.COM 3497
Law, Inc. v. Craigslist, Inc., 461 F. Supp. 2d 681, 690 n.7
(N.D. Ill. 2006); Dimeo v. Max, 433 F. Supp. 2d 523, 530
n.12 (E.D. Pa. 2006); Prickett v. Infousa, Inc., No. 04:05-CV10,
2006 U.S. Dist. LEXIS 21867, at *4 (E.D. Tex. Mar. 30,
2006)).
Significantly, § 230(e) expressly exempts from its scope
certain areas of law, such as intellectual property law and federal
criminal laws. § 230(e)(1) (“Nothing in this section shall
be construed to impair the enforcement of [selected obscenity
statutes] or any other Federal criminal statute.”); § 230(e)(2)
(“Nothing in this section shall be construed to limit or expand
any law pertaining to intellectual property.”). See also Perfect
10, Inc. v. CCBILL LLC, 488 F.3d 1102, 1118 (9th Cir.
2007). Thus, for example, a webhost may still be liable as a
publisher or speaker of third-party information that is alleged
to infringe a copyright. Notably, the CDA does not exempt
the FHA and a host of other federal statutes from its scope.
See § 230(e). The FHA existed at the time of the CDA’s
enactment, yet Congress did not add it to the list of specifically
enumerated laws for which publisher and speaker liability
was left intact. The absence of a statutory exemption
suggests that Congress did not intend to provide special case
status to the FHA in connection with immunity under the
CDA. See TRW Inc. v. Andrews, 534 U.S. 19, 28 (2001) (stating
that “[w]here Congress explicitly enumerates certain
exceptions to a general prohibition, additional exceptions are
not to be implied, in the absence of evidence of a contrary
legislative intent.”) (citation omitted); see also Craigslist, No.
07-1101, slip op. at 8 (stating that “[t]he question is not
whether Congress gave any thought to the Fair Housing Act,
but whether it excluded § 3604(c) from the reach of
§ 230(c)(1)”).
Anticipating the morphing of the Internet and the limits of
creative genius and entrepreneurship that fuel its development
is virtually impossible. However, Congress explicitly drafted
the law to permit this unfettered development of the Internet.
3498 FAIR HOUSING COUNCIL v. ROOMMATES.COM
Had Congress discovered that, over time, courts across the
country have created more expansive immunity than it originally
envisioned under the CDA, Congress could have
amended the law. But it has not. In fact, just six years ago,
Congress approved of the broad immunity that courts have
uniformly accorded interactive webhosts under § 230(c).
In 2002, Congress passed the “Dot Kids Implementation
and Efficiency Act,” which established a new “kids.us”
domain for material that is safe for children. Pub. L. No. 107317,
116 Stat. 2766. Congress stated that the statutory protections
of § 230(c) were extended to certain entities that operated
within the new domain. 47 U.S.C. § 941 (stating that
certain entities “are deemed to be interactive computer services
for purposes of § 230(c)”). The Committee Report that
accompanied the statute declared:
The Committee notes that ISPs have successfully
defended many lawsuits using section 230(c). The
courts have correctly interpreted section 230(c),
which was aimed at protecting against liability for
such claims as negligence (See, e.g., Doe v. America
Online, 783 So.2d 1010 (Fla. 2001)) and defamation
(Ben Ezra, Weinstein, and Co. v. America Online,
206 F.3d 980 (2000); Zeran v. America Online, 129
F.3d 327 (1997)). The Committee intends these
interpretations of section 230(c) to be equally applicable
to those entities covered by H.R. 3833.
H.R. REP. No. 107-449 (emphasis added). These statements
“reflect the Committee’s intent that the existing statutory construction,”
i.e., broad immunity for interactive webhosts, “be
maintained in a new legislative context.” Barrett, 146 P.3d at
523 n.17 (discussing H.R. Rep. No. 107-449); see also Heckler
v. Turner, 470 U.S. 184, 209 (1985) (noting that subsequent
legislative history can shed useful light on
Congressional intent). This express Congressional approval of
the courts’ interpretation of § 230(c)(1), six years after its
FAIR HOUSING COUNCIL v. ROOMMATES.COM 3499
enactment, advises us to stay the course of “robust” webhost
immunity.
The consequences of the majority’s interpretation are far-
reaching. Its position will chill speech on the Internet and
impede “the continued development of the Internet and other
interactive computer services and other interactive media.”
§ 230(b)(1). To the extent the majority strips immunity
because of sorting, channeling, and categorizing functions, it
guts the heart of § 230(c)(1) immunity. Countless websites
operate just like Roommate: they organize information provided
by their users into a standardized format, and provide
structured searches to help users find information. These sites,
and their attendant display, search, and inquiry tools, are an
indispensable part of the Internet tool box. Putting a lid on the
sorting and searching functions of interactive websites stifles
the core of their services.
To the extent the majority strips immunity because the
information or query may be illegal under some statute or federal
law, this circumstance puts the webhost in the role of a
policeman for the laws of the fifty states and the federal system.
There are not enough Net Nannies in cyberspace to
implement this restriction, and the burden of filtering content
would be unfathomable.
To the extent the majority strips immunity because a site
solicits or actively encourages content, the result is a direct
restriction on the free exchange of ideas and information on
the Internet. As noted in the amici curiae brief of the news
organizations, online news organization routinely solicit third-
party information. Were the websites to face host liability for
this content, they “would have no choice but to severely limit
its use” and “[s]heer economics would dictate that vast quantities
of valuable information be eliminated from websites.”
Brief of Amici Curiae News Organizations in Support of
Roommate.com, LLC 22.
3500 FAIR HOUSING COUNCIL v. ROOMMATES.COM
To the extent the majority strips immunity because a web-
site “materially contributed” to the content or output of a web-
site by “specialization” of content, this approach would
essentially swallow the immunity provision. The combination
of solicitation, sorting, and potential for liability would put
virtually every interactive website in this category. Having a
website directed to Christians, Muslims, gays, disabled veterans,
or childless couples could land the website provider in
hot water.14
Because the statute itself is cumbersome to interpret in light
of today’s Internet architecture, and because the decision
today will ripple through the billions of web pages already
online, and the countless pages to come in the future, I would
take a cautious, careful, and precise approach to the restriction
of immunity, not the broad swath cut by the majority. I
respectfully dissent and would affirm the district court’s judgment
that Roommate is entitled to immunity under
§ 230(c)(1) of the CDA, subject to examination of whether
the bare inquiry itself is unlawful.
14It is no surprise that there are countless specialized roommate sites.
See, e.g., http://islam.tc/housing/index.php, http://christian-room
mates.com, and http://prideroommates.com.