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New and Interesting 47 U.S.C. § 230 Content Provider Immunity Opinion,

in Ninth Fair Housing Council v. Roommate.com. The Ninth Circuit decision is written by Judge Kozinski, with a partial dissent by Judge Reinhardt, and a partial concurrence in the judgment (expressing a good deal of disagreement) by Judge Ikuta.

The Fair Housing Council sued Roommate.com, which runs roommates.com, under the Fair Housing Act. Roommates.com (I'll use the more familiar plural site name, rather than the less familiar singular company name) contains many expressions of people's preference for roommates' sex, familial status, sexual orientation, and sometimes race, religion, and handicap; the Fair Housing Act generally prohibits housing advertising that expresses such preference as to "race, color, religion, sex, handicap, familial status, or national origin. (Interestingly, the FHA allows such discrimination when conducted by an owner who is looking for roommates; this might extend to a renter who is looking for roommates, though I'm not sure; but the exemption expressly excludes the advertising ban, so that the advertising ban does apply even to roommate searches. More on that later.)

Roommates.com's defense is 47 U.S.C. § 230, which many courts, including the Ninth Circuit, have interpreted to provide broad immunity to content providers who merely let others post material on their sites. That's why I'm generally not legally liable for things you folks post in the comments (though let's not make a test case out of it, OK?).

But the Ninth Circuit panel held that there's an important limit to such immunity -- because § 230 defines "information content provider" as "any 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" (emphasis in Ninth Circuit opinion), roommates.com may be liable based on its own actions as information content provider. And that, the Ninth Circuit held, means roommates.com might violate the FHA insofar as it solicited discriminatory preferences that the FHA prohibits the publication of, and then let people search based on those preferences.

So how did this play out?

1. Roommates.com did ask people for their preferences by sex, sexual orientation (irrelevant to the FHA), and presence of children, and let searchers search by such preferences. The questions about roommate preferences were roommates.com's own communications, and thus weren't immune under § 230 (though the panel expressed no opinion about whether the questions themselves violated the FHA). All three judges agreed on this.

2. Roommates.com's communication of users' answers to those questions, and provision of search services based on those answers, was also not immune under § 230: Roommates.com expressly asked for this information, and was thus in part the creator and developer of the information. This was the opinion of Judges Kozinski and Reinhardt, with Judge Ikuta seemingly disagreeing.

3. Roommates.com's communication of users' "Additional Comments," given in response to roommates.com's "strongly recommend[ing] taking a moment to personalize your profile by writing a paragraph or two describing yourself and what you are looking for in a roommate," is immune under § 230, because

Roommate's involvement is insufficient to make it a content provider of these comments. Roommate's open-ended question suggests no particular information that is to be provided by members; Roommate certainly does not prompt, encourage or solicit any of the inflammatory information provided by some of its members. Nor does Roommate use the information in the "Additional Comments" section to limit or channel access to listings. Roommate is therefore not "responsible, in whole or in part, for the creation or development of" its users' answers to the open-ended "Additional Comments" form, and is immune from liability for publishing these responses.
This was the opinion of Judges Kozinski and Ikuta, with Judge Reinhardt dissenting at some length.

So the bottom line: If other sites (for instance, Craigslist, which is the subject of a similar lawsuit) simply ask people to post their ads, and let others search the ads in full text, but without expressly asking for sex/familial status/etc. preferences and specifically providing searches for such preferences, the Ninth Circuit opinion suggests they will be immune. But say a site invites a certain kind of information, for instance asks people to express a preference that one may not express in housing ads, or expressly asks people "to provide private, sensitive and/or defamatory information about others" (Judge Kozinski's example). Then the site will be treated as a content provider of that information, won't get § 230 immunity, and thus may be liable (if the request is indeed soliciting information that it would be tortious to publish).

So, the bottom line: This is not a substantial retrenchment of the preexisting law under 47 U.S.C. § 230, which offers a great deal of immunity for those Internet outlets that merely pass along others' speech. But it does suggest that when the outlets try to channel the speech in likely illegal directions, they may be liable for the result of that channeling.

Thanks to Eric Goldman for the pointer; he also has a post on the subject.

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