257:, is a website that operates to match individuals renting rooms with those who need rooms. At the time of the suit, Roommates.com had approximately 150,000 room listings. In order to use the site, users had to create a profile by answering a series of questions provided by Roommates.com. These questions included the user's name, whereabouts, and email address, and also included questions about gender, sexual orientation, number of children, and whether the children lived with the user. Users were also prompted to state the type of roommate they were looking for in terms of these last three questions. Finally, there was an âAdditional Commentsâ section where users could further describe what they were looking for in a roommate.
28:
454:âhe 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.â
391:âBy 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 the information. And section 230 provides immunity only if the interactive computer series does not âcreat or developâ the information âin whole or in part.ââ
419:, the court held that the website was immune under 230(c) for a fake dating profile posted by a third party, but also noted that the website would never be liable for a profile created by a third party. The court clarified this previous statement in Roommates.com by stating, âeven if the data are supplied by third parties, a website operator may still contribute to the contentâs illegality and thus be liable as a developer.â In
430:â 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 donât magically become lawful when asked electronically online. The Communications Decency Act was not meant to create a lawless no-manâs-land on the Internet.â
326:, holding that Section 230(c) of the CDA made the website immune from Fair Housing Act violations. The court reasoned that Section 230(c) immunity is quite expansive, and that in this case Roommates.com was an internet service provider, but was not an information content provider. Therefore, the court found that Roommates.com qualified for Section 230(c) immunity.
383:âRoommate created the questions and choice of answers, and designed its website registration process around them. Therefore, Roommate is undoubtedly the âinformation content providerâ as to the questions and can claim no immunity for posting them on its website, or for forcing subscribers to answer them as a condition of using its services.â
476:, the Ninth Circuit held that Section 230 may preempt state negligent undertaking claims. However, 230(c) may not preempt a promissory estoppel claim. If a service provider promises to remove content posted by third party and fails to do so, the service provider could potentially lose 230(c) immunity.
334:
The court reversed the district court's decision in part, and remanded for a determination whether the website violated the Fair
Housing Act. It also vacated the dismissal of the state law claims. In a decision written by Chief Judge Alex Kozinski, a three-judge panel held that Roommates.com was not
434:
However, the court distinguished
Roommates.com's actions from those of search engines: âBy 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 endsâas Roommateâs search function is alleged to do
97:
The Ninth
Circuit, en banc, upheld the three judge panelâs holding. It found that the portion of the Roommates.com website that presented a questionnaire to users was not immune under Section 230 of the CDA because Roommates.com was considered an information content provider, and the questions
378:
for the questions it asked in its dropdown menus, because the website qualified as an information content provider. By requiring users to answer questions relating to gender and sexual orientation, Roommates.com provided content. Just because the users of
Roommates.com are information content
239:. However, the court found that Roommates.com was immune under Section 230 of the CDA for the âadditional commentsâ portion of the website. This case was the first to place a limit on the broad immunity that Section 230(c) gives to service providers that has been established under
301:, as long the content is created solely by third parties. Specifically, section 230(c)(1) states that âo provider . . . of an interactive computer service shall be treated as a publisher or speaker of any information provided by another information content provider.â
304:
In contrast, information content providers who are âresponsible in whole or in part, for the creation or development ofâ the infringing material. are not immune under section 230(c), and may be held liable for defamatory content.
507:
In
November 2008, the district court ruled that Roommates.com violated the Fair Housing Act. In February 2012, the Ninth Circuit reversed that ruling, holding that Roommates.com did not violate the law and dismissing the case.
842:
319:
296:
To avoid crushing liability for service providers, Congress provided section 230(c) immunity. Section 230 of the
Communications Decency Act (also known as the âgood Samaritan provisionâ), grants immunity to an
423:, the dating website did nothing to elicit discriminatory or defamatory information. In contrast, the court in Roommates.com found that the website did elicit discriminatory information through its questions.
98:
violated the FHA. However, the portion of the website labeled âAdditional
Commentsâ qualified for immunity because Roommates.com was not considered an information content provider for this information.
293:, the court held the service provider Prodigy liable as a publisher, because it deleted material that it thought was offensive, but had not deleted other material that was potentially offensive.
458:
She believed that by denying
Roommates.com Section 230(c) immunity, Internet service providers would be unable to determine whether or not they will be held liable for third party content.
399:, the court found Prodigy liable for removing some bad content but not all bad content. In Roommates.com, the court found that the website affirmatively solicited discriminatory content.
406:. In that case, the court held that an interactive service provider is immune under 230(c) if the changes the editor makes to a third party post are minor spelling or grammar changes.
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808:
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stated that âhe majority's unprecedented expansion of liability for
Internet service providers threatens to chill the robust development of the Internet that Congress envisioned.â
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479:
On the other hand, other cases have upheld
Section 230(c) immunity for interactive service providers that were not also information content providers. For example, in
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able to claim Section 230(c) immunity because it acted as an information content provider by requiring users to choose from potentially discriminatory options.
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The Ninth Circuit found that Roommates.com was distinguishable from Stratton Oakmont, the case that motivated Congress to pass Section 230(c). In
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The court affirmed the three judge panel's decision, but Judge Kozinski used the opinion as an opportunity to clarify his previous opinion.
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Fair Housing Council of San Fernando Valley brought an action against the website Roommates.com, alleging that the website violated the
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The majority analogized Roommates.com's use of questions to the physical world to determine whether CDA 230(c) immunity applied.
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of the CDA granted the website immunity, because it was simply an interactive website, and not an information content provider.
646:, Ninth Circuit Screws up 47 U.S.C. 230 -- Fair Housing Council v. Roommates.com, Eric Goldman's Blog, retrieved March 3, 2011.
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that potentially limited 230(c) immunity in a way that the court did not mean to do. Due to the fractured nature of the
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held that Craigslist was immune under 230(c)(1) for illicit advertisements that third parties placed on the website.
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wrote a concurrence in part. Some commentators believed that the original Ninth Circuit opinion included unnecessary
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potentially further limited 230(c) immunity, most other cases since Roommates.com have left the section intact. In
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providers does not mean that Roommates.com is not also an information service provider. The court explained:
518:
Defterderian, Varty (2009). ""Fair Housing Council v. Roommates.com": A New Path for Section 230 Immunity".
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here. Therefore, such search engines play no part in the âdevelopmentâ of any unlawful searches.â
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The court also mentioned that its opinion was consistent with the previous Ninth Circuit case,
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Congress passed Section 230 of the Communications Decency Act in response to the holding in
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opinion, and potential confusion over its scope, the court decided to rehear the case
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for failure to state a claim, finding that the defendant was immune under 230(c)(1).
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by allowing users the ability to discriminate through the website's questionnaires.
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593:, No. 31063/94, 1995 WL 323710, 1995 N.Y. Misc. LEXIS 229 (N.Y. Sup. Ct. 1995).
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wrote a separate opinion concurring in part, and dissenting in part, and Judge
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Eric Goldman's blog post on the Ninth Circuit's 2012 dismissal of the case
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Eric Goldmanâs blog post on the Ninth Circuit's 2008 en banc decision
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Eric Goldmanâs blog post on the Ninth Circuit's 2007 panel decision
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United States District Court for the Central District of California
415:, noting that its language in that case had been overly broad. In
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However, while Chief Judge Alex Kozinski wrote the opinion, Judge
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Fair Housing Council of San Fernando Valley v. Roommates.com, LLC
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Fair Housing Council of San Fernando Valley v. Roommates.com, LLC
761:
Fair Housing Council of San Fernando Valley v. Roommate.com, LLC
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Fair Housing Council of San Fernando Valley v. Roommate.com, LLC
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489 F.3d 921 (9th Cir. 2007); 2004 WL 3799488 (C.D. Cal. 2004).
254:
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Fair Housing Council of San Fernando Valley v. Roommates.com
604:, Communications Decency Act, 47 U.S.C. § 230(c)(1) (2006).
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The court reasoned that Roommates.com was not immune under
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United States Court of Appeals for the Ninth Circuit cases
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Fair Hous. Council of San Fernando Valley v. Roommates.com
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Fair Hous. Council of San Fernando Valley v. Roommates.com
620:, Communications Decency Act, 47 U.S.C. § 230(f) (2006).
219:, 521 F.3d 1157 (9th Cir. 2008), is a case in which the
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591:Stratton Oakmont, Inc. v. Prodigy Services Co.
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858:Section 230 of the Communications Decency Act
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733:, Inc. 665 F.Supp. 2d 961 (N.D.Ill. 2009).
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716:Nemet Chevrolet v. ConsumerAffairs.com
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481:Nemet Chevrolet v. ConsumerAffairs.com
781:EFF's FAQs on Section 230 to Bloggers
575:, LLC, 521 F.3d 1157 (9th Cir. 2008).
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635:, LLC, 489 F.3d 921 (9th Cir. 2007).
409:The court clarified its holding in
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763:, 666 F.3d 1216 (9th Cir. 2012).
661:, 333 F.3d 1018 (9th Cir. 2003).
848:United States Internet case law
718:, 591 F.3d 250 (4th Cir. 2009).
681:, 339 F.3d 1119 (9th Cir 2003).
521:Berkeley Technology Law Journal
439:Partial concurrence and dissent
853:2008 in United States case law
696:570 F.3d 1096 (9th Cir. 2009).
362:Ninth Circuit en banc decision
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502:Northern District of Illinois
74:521 F.3d 1157 (9th Cir. 2008)
806:Harvard Law Information Blog
330:Ninth Circuit panel decision
679:Carafano v. Metrosplash.com
412:Carafano v. Metrosplash.com
324:motion for summary judgment
227:, held that immunity under
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811:December 31, 2010, at the
801:Evan Brown, Internet Cases
387:The court went on to say:
271:Roommates.com argued that
233:Communications Decency Act
199:Communications Decency Act
776:Citizen Media Law Project
487:dismissed the case under
299:internet service provider
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497:Dart v. Craigslist, Inc.
322:granted Roommates.com's
469:Barnes v. Yahoo!, Inc.
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450:She went on to say:
187:M. Margaret McKeown
148:Milan D. Smith, Jr.
132:William A. Fletcher
128:M. Margaret McKeown
731:Dart v. Craigslist
462:Subsequent history
344:Sandra Segal Ikuta
124:Barry G. Silverman
340:Stephen Reinhardt
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116:Stephen Reinhardt
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223:, sitting
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809:Archived
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489:12(b)(6)
421:Carafano
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397:Stratton
367:Majority
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245:(1997).
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183:Dissent
92:Holding
63:Decided
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376:230(c)
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