The Conduit Alters Its Contents

CDA section 230 againI finally got the chance to look at the recent Ninth Circuit Court of Appeals opinion, which of course involves my little buddy, section 230 of the Communications Decency Act. Instead of the usual applause, it seems this time there's some concern over the lack of CDA protection granted the defendant,, LLC, which operates a roommate-finder Web site.

As you've already noticed from commentary elsewhere, this case—at least in the context of section 230—turns on the extent of involvement by the operators of the site. To quote Judge Kozinski, "a provider of an interactive computer service does not lose its CDA immunity if it merely exercises some control over the posting of information provided by others, such as enforcement of rules as to appropriate content or minor editing." "Nor," he adds, "does it generally lose its immunity if it simply facilitates expression of information by individuals." Therefore, "Roommate is immune so long as it merely publishes information provided by its members."

As you can see from the following quotes taken from the court's opinion, the site's involvement—or that of its human operators—wasn't really the problem. Changing the wording doesn't necessarily change its meaning.

When users select the option "I will not live with children," Roommate publishes this response as "no children please." The Councils argue that this alteration makes Roommate a content provider and therefore not immune under the CDA for publishing this statement. However, minor editing that does not affect meaning is protected under the CDA as the "usual prerogative of publishers."

Because "no children please" is materially the same as "I will not live with children," Roommate does not lose its CDA immunity because of the change in wording.

On the other hand, the Councils allege that Roommate takes members' blank selection in the children field and publishes it as "no children please." We could not find support for this proposition in the record, but if Councils' allegation is true, then Roommate significantly alters the meaning of the information provided by its members and is not entitled to CDA immunity for posting the resulting content.

Apparently, the problems began when input from the site's members was manipulated by questionnaires, and the output channeled to other users. Those categorizing, channeling and limiting actions created an additional layer of information.

Roommate is "responsible" for these questionnaires because it "creat[ed] or develop[ed]" the forms and answer choices. As a result, Roommate is a content provider of these questionnaires and does not qualify for CDA immunity for their publication.

. . . Roommate does more than merely publish information it solicits from its members. Roommate also channels the information based on members' answers to various questions, as well as the answers of other members.

While Roommate provides a useful service, its search mechanism and email notifications mean that it is neither a passive pass-through of information provided by others nor merely a facilitator of expression by individuals. By categorizing, channeling and limiting the distribution of users' profiles, Roommate provides an additional layer of information that it is "responsible" at least "in part" for creating or developing.

On the other hand, the additional comments section of the site was considered separately, and found to meet the requirements for CDA immunity . . .

We conclude that 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.

. . . although Judge Reinhardt disagreed:

Roommate cannot receive § 230(c) immunity for publishing information in the Additional Comments," if it is "responsible . . . in part, for the . . . creation or development of information."

In any event, it's yet another interesting test case for section 230 of the Communications Decency Act. I'm sure there will be more.


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