fair housing 9th cir

8/14/2019 fair housing 9th cir

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FOR PUBLICATION

UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

FAIR HOUSING COUNCIL OF SANFERNANDO VALLEY; THE FAIRHOUSING COUNCIL OF SAN DIEGO,individually and on behalf of the No. 04-56916GENERAL PUBLIC, D.C. No.

Plaintiffs-Appellants,CV-03-09386-PA

v.

ROOMMATES.COM, LLC,Defendant-Appellee.

FAIR HOUSING COUNCIL OF SANFERNANDO VALLEY; THE FAIRHOUSING COUNCIL OF SAN DIEGO,

No. 04-57173individually and on behalf of the

D.C. No.GENERAL PUBLIC, CV-03-09386-PAPlaintiffs-Appellees,OPINIONv.

ROOMMATE.COM, LLC,Defendant-Appellant.

Appeal from the United States District Courtfor the Central District of California

Percy Anderson, District Judge, Presiding

Argued and SubmittedDecember 12, 2007Pasadena, California

Filed April 3, 2008

3445


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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

3446 FAIR HOUSING COUNCIL v. ROOMMATES.COM


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COUNSEL

Michael Evans, Pescadero, California; Christopher Brancart,Brancart & Brancart, Pescadero, California; Gary Rhoades,Rhoades & Al-Mansour, Los Angeles, California, for theplaintiffs-appellants/cross-appellees.

Timothy L. Alger, Kent J. Bullard, Steven B. Stiglitz and Les-ley E. Williams, Quinn Emanuel Urquhart Oliver & Hedges,LLP, Los Angeles, California, for the defendant-appellee/

cross-appellant.

Kelli L. Sager, Los Angeles, California; Thomas R. Burke,San Francisco, California; Bruce E. H. Johnson and AmbikaK. Doran, Davis Wright Tremaine LLP, Seattle, Washington,

3449FAIR HOUSING COUNCIL v. ROOMMATES.COM


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for News Organizations as amici curiae in support of thedefendant-appellee.

Ann Brick, Margaret C. Crosby and Nicole A. Ozer, Ameri-can Civil Liberties Union Foundation of Northern California,San Francisco, California, for American Civil Liberties Unionof Northern California as amicus curiae in support of neitherparty.

John P. Relman, Stephen M. Dane and D. Scott Chang, Rel-man & Dane PLLC, Washington, DC; Joseph D. Rich andNicole Birch, Lawyers Committee for Civil Rights UnderLaw, Washington, DC, for National Fair Housing Allianceand Lawyers Committee for Civil Rights Under Law asamici curiae in support of the plaintiffs-appellants.

OPINION

KOZINSKI, Chief Judge:

We plumb the depths of the immunity provided by section230 of the Communications Decency Act of 1996 (CDA).

Facts1

Defendant Roommate.com, LLC (Roommate) operates awebsite designed to match people renting out spare roomswith people looking for a place to live.2 At the time of the dis-trict courts disposition, Roommates website featuredapproximately 150,000 active listings and received around a

1This appeal is taken from the district courts order granting defendantsmotion for summary judgment, so we view contested facts in the lightmost 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 Room-

mate.com, LLC but pluralizes its websites URL, www.roommates.com.



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million page views a day. Roommate seeks to profit by col-lecting revenue from advertisers and subscribers.

Before subscribers can search listings or post3 housingopportunities on Roommates website, they must create pro-files, a process that requires them to answer a series of ques-tions. In addition to requesting basic informationsuch asname, location and email addressRoommate requires eachsubscriber to disclose his sex, sexual orientation and whetherhe would bring children to a household. Each subscriber mustalso describe his preferences in roommates with respect to thesame three criteria: sex, sexual orientation and whether theywill bring children to the household. The site also encouragessubscribers to provide Additional Comments describingthemselves and their desired roommate in an open-endedessay. After a new subscriber completes the application,Roommate assembles his answers into a profile page. Theprofile page displays the subscribers pseudonym, his descrip-tion and his preferences, as divulged through answers toRoommates questions.

Subscribers can choose between two levels of service:Those using the sites free service level can create their own

personal profile page, search the profiles of others and sendpersonal email messages. They can also receive periodicemails from Roommate, informing them of available housingopportunities matching their preferences. Subscribers whopay a monthly fee also gain the ability to read emails fromother users, and to view other subscribers Additional Com-ments.

The Fair Housing Councils of the San Fernando Valley andSan Diego (Councils) sued Roommate in federal court,alleging that Roommates business violates the federal Fair

3In the online context, posting refers to providing material that can beviewed by other users, much as one posts notices on a physical bulletinboard.



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Housing Act (FHA), 42 U.S.C. 3601 et seq., and Califor-nia housing discrimination laws.4 Councils claim that Room-mate is effectively a housing broker doing online what it maynot lawfully do off-line. The district court held that Room-mate is immune under section 230 of the CDA, 47 U.S.C. 230(c), and dismissed the federal claims without consider-ing whether Roommates actions violated the FHA. The courtthen declined to exercise supplemental jurisdiction over thestate law claims. Councils appeal the dismissal of the FHAclaim and Roommate cross-appeals the denial of attorneysfees.

Analysis

[1] Section 230 of the CDA5 immunizes providers of inter-active computer services6 against liability arising from contentcreated by third parties: No provider . . . of an interactivecomputer service shall be treated as the publisher or speakerof any information provided by another information contentprovider. 47 U.S.C. 230(c).7 This grant of immunity

4The Fair Housing Act prohibits certain forms of discrimination on thebasis of race, color, religion, sex, familial status, or national origin. 42U.S.C. 3604(c). The California fair housing law prohibits discriminationon the basis of sexual orientation, marital status, . . . ancestry, . . . source

of income, or disability, in addition to reiterating the federally protectedclassifications. Cal. Gov. Code 12955.

5The Supreme Court held some portions of the CDA to be unconstitu-tional. See Reno v. ACLU, 521 U.S. 844 (1997). The portions relevant tothis case are still in force.

6Section 230 defines an interactive computer service as any informa-tion service, system, or access software provider that provides or enablescomputer 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 com-puter service under the CDA), affd, 339 F.3d 1119 (9th Cir. 2003).Today, the most common interactive computer services are websites.Councils do not dispute that Roommates website is an interactive com-puter service.

7The Act also gives immunity to users of third-party content. This casedoes not involve any claims against users so we omit all references to userimmunity when quoting and analyzing the statutory text.



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applies only if the interactive computer service provider is notalso an information content provider, which is defined assomeone who is responsible, in whole or in part, for the cre-ation or development of the offending content. Id. 230(f)(3).

[2] A website operator can be both a service provider anda content provider: If it passively displays content that is cre-ated entirely by third parties, then it is only a service providerwith respect to that content. But as to content that it createsitself, or is responsible, in whole or in part for creating or

developing, the website is also a content provider. Thus, awebsite may be immune from liability for some of the contentit displays to the public but be subject to liability for other con-tent.8

Section 230 was prompted by a state court case holding Prod-igy9 responsible for a libelous message posted on one of itsfinancial 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 hadbecome a publisher under state law because it voluntarilydeleted some messages from its message boards on the basis

of offensiveness and bad taste, and was therefore legallyresponsible for the content of defamatory messages that itfailed to delete. Id. at *4. The Stratton Oakmont court rea-soned that Prodigys 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 creatingfake profiles on its own dating website).

9Prodigy was an online service provider with 2 million users, whichseemed like a lot at the time.

10A message board is a system of online discussion allowing users to

post messages. Messages are organized by topicsuch as the financemessage board at issue in Stratton Oakmontand the system generallyallows users to read and reply to messages posted by others.



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responsible for messages on its bulletin board that defamedthird parties. The court distinguished Prodigy from Compu-Serve,11 which had been released from liability in a similardefamation case because CompuServe had no opportunity toreview the contents of the publication at issue before it wasuploaded into CompuServes computer banks. Id.; seeCubby, 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 messagesbecome liable for all messages transmitted, whereas providersthat bury their heads in the sand and ignore problematic posts

altogether escape liability. Prodigy claimed that the sheervolume of message board postings it receivedat the time,over 60,000 a daymade manual review of every messageimpossible; thus, if it were forced to choose between takingresponsibility for all messages and deleting no messages atall, it would have to choose the latter course. Stratton Oak-mont, 1995 WL 323710 at *3.

[3] In passing section 230, Congress sought to spare inter-active computer services this grim choice by allowing them toperform some editing on user-generated content withoutthereby becoming liable for all defamatory or otherwiseunlawful messages that they didnt edit or delete. In otherwords, Congress sought to immunize the removal of user-generated content, not the creation of content: [S]ection[230] provides Good Samaritan protections from civil liabil-ity for providers . . . of an interactive computer service foractions to restrict. . . access to objectionable online material.One of the specific purposes of this section is to overruleStratton-Oakmont[sic] v. Prodigy and any other similar deci-sions which have treated such providers . . . as publishers orspeakers of content that is not their own because they haverestricted 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.



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U.S.C.C.A.N. 10 (emphasis added).12

Indeed, the section istitled Protection for good samaritan blocking and screeningof offensive material and, as the Seventh Circuit recentlyheld, the substance of section 230(c) can and should be inter-preted consistent with its caption. Chicago Lawyers Commit-tee for Civil Rights Under Law, Inc. v. craigslist, Inc., No. 07-1101, 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 specificfunctions performed by Roommate that are alleged to violate

the Fair Housing Act and California law.

1. Councils first argue that the questions Roommate posesto prospective subscribers during the registration process vio-late the Fair Housing Act and the analogous California law.Councils allege that requiring subscribers to disclose theirsex, family status and sexual orientation indicates an intentto discriminate against them, and thus runs afoul of both theFHA 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 con-tent provider as to the questions and can claim no immunity

12While the Conference Report refers to this as [o]ne of the specificpurposes of section 230, it seems to be the principal or perhaps the onlypurpose. The report doesnt describe any other purposes, beyond support-ing the important federal policy of empowering parents to determine thecontent of communications their children receive through interactive com-puter services. H.R. Rep. No. 104-458, at 194 (1996) (Conf. Rep.), asreprinted in 1996 U.S.C.C.A.N. 10, 207-08.

13The Fair Housing Act prohibits any statement . . . with respect to thesale or rental of a dwelling that indicates . . . an intention to make [a] pref-erence, limitation, or discrimination on the basis of a protected category.42 U.S.C. 3604(c) (emphasis added). California law prohibits any writ-ten or oral inquiry concerning the protected status of a housing seeker.Cal. Gov. Code 12955(b).



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for posting them on its website, or for forcing subscribers toanswer them as a condition of using its services.

Here, we must determine whether Roommate has immunityunder the CDA because Councils have at least a plausibleclaim that Roommate violated state and federal law by merelyposing the questions. We need not decide whether any ofRoommates questions actually violate the Fair Housing Actor California law, or whether they are protected by the FirstAmendment 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 substan-tive claims only insofar as necessary to determine whethersection 230 immunity applies. However, we note that askingquestions certainly can violate the Fair Housing Act and anal-ogous laws in the physical world.14 For example, a real estatebroker may not inquire as to the race of a prospective buyer,and an employer may not inquire as to the religion of a pro-spective employee. If such questions are unlawful when posedface-to-face or by telephone, they dont magically becomelawful when asked electronically online. The Communica-tions Decency Act was not meant to create a lawless no-mans-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 andfamily status of housing applicants is unlawful. See, e.g., Jancikv.HUD,44 F.3d 553, 557 (7th Cir. 1995).

15The dissent stresses the importance of the Internet to modern life andcommerce, Dissent at 3476, and we, of course, agree: The Internet is nolonger a fragile new means of communication that could easily be smoth-ered in the cradle by overzealous enforcement of laws and regulationsapplicable to brick-and-mortar businesses. Rather, it has become adominantperhaps the preeminentmeans through which commerce isconducted. And its vast reach into the lives of millions is exactly why wemust be careful not to exceed the scope of the immunity provided by Con-gress and thus give online businesses an unfair advantage over their real-world counterparts, which must comply with laws of general applicability.



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the questions as a condition of using Roommates servicesunlawfully 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 of42 U.S.C. 3604(c). The CDA does not grant immunity forinducing third parties to express illegal preferences. Room-mates own actsposting the questionnaire and requiringanswers to itare entirely its doing and thus section 230 ofthe CDA does not apply to them. Roommate is entitled to noimmunity.16

[6] 2. Councils also charge that Roommates development

and display of subscribers discriminatory preferences isunlawful. Roommate publishes a profile page for each sub-scriber on its website. The page describes the clients personalinformationsuch as his sex, sexual orientation and whetherhe has childrenas well as the attributes of the housing situa-tion he seeks. The content of these pages is drawn directlyfrom the registration process: For example, Roommaterequires subscribers to specify, using a drop-down menu17

provided by Roommate, whether they are Male or Femaleand then displays that information on the profile page. Room-mate also requires subscribers who are listing available hous-ing to disclose whether there are currently Straight male(s),Gay male(s), Straight female(s) or Lesbian(s) living inthe dwelling. Subscribers who are seeking housing must makea selection from a drop-down menu, again provided by Room-mate, to indicate whether they are willing to live withStraight or gay males, only with Straight males, only withGay males or with No males. Similarly, Roommate

16Roommate argues that Councils waived the argument that the ques-tionnaire violated the FHA by failing to properly raise it in the districtcourt. But, under our liberal pleading standard, it was sufficient for Coun-cils in their First Amended Complaint to allege that Roommate encour-ages 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.



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requires subscribers listing housing to disclose whether thereare Children present or Children not present and requireshousing seekers to say I will live with children or I will notlive with children. Roommate then displays these answers,along with other information, on the subscribers profile page.This information is obviously included to help subscribersdecide which housing opportunities to pursue and which tobypass. In addition, Roommate itself uses this information tochannel subscribers away from listings where the individualoffering housing has expressed preferences that arent com-patible with the subscribers answers.

[7] The dissent tilts at windmills when it shows, quite con-vincingly, that Roommates subscribers are information con-tent providers who create the profiles by picking amongoptions and providing their own answers. Dissent at 3485-88.There is no disagreement on this point. But, the fact that usersare information content providers does not preclude Room-mate from also being an information content provider byhelping develop at least in part the information in the pro-files. As we explained inBatzel, the party responsible for put-ting information online may be subject to liability, even if theinformation 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 theFair Housing Act and state housing discrimination lawstheinformation about sex, family status and sexual orientationis provided by subscribers in response to Roommates ques-tions, which they cannot refuse to answer if they want to usedefendants services. By requiring subscribers to provide theinformation as a condition of accessing its service, and byproviding a limited set of pre-populated answers, Roommatebecomes much more than a passive transmitter of informationprovided by others; it becomes the developer, at least in part,

of that information. And section 230 provides immunity only

18See also discussion ofBatzel pp. 3466-67 infra.



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if the interactive computer service does not creat[e] or devel-op[ ] the information in whole or in part. See 47 U.S.C. 230(f)(3).

Our dissenting colleague takes a much narrower view ofwhat it means to develop information online, and concludesthat Roommate does not develop the information because[a]ll Roommate does is to provide a form with options forstandardized answers. Dissent at 3487. But Roommate doesmuch more than provide options. To begin with, it asks dis-criminatory questions that even the dissent grudgingly admitsare not entitled to CDA immunity. Dissent at 3480 n.5. The

FHA makes it unlawful to ask certain discriminatory ques-tions for a very good reason: Unlawful questions solicit (a.k.a.develop) unlawful answers. Not only does Roommate askthese questions, Roommate makes answering the discrimina-tory questions a condition of doing business. This is no differ-ent from a real estate broker in real life saying, Tell mewhether youre Jewish or you can find yourself another bro-ker. When a business enterprise extracts such informationfrom potential customers as a condition of accepting them asclients, it is no stretch to say that the enterprise is responsible,at least in part, for developing that information. For the dis-sent to claim that the information in such circumstances iscreated solely by the customer, and that the business has nothelped in the least to develop it, Dissent at 3487-88, strainsboth credulity and English.19

19The dissent may be laboring under a misapprehension as to how theRoommate website is alleged to operate. For example, the dissent spendssome time explaining that certain portions of the user profile applicationare voluntary. Dissent at 3485-87. We do not discuss these because plain-tiffs 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 Roommates influence on themandatory portions of the applications by referring to it with such wordsas encourage or encouragement or solicitation. Dissent at 3493; seeid. at 3499. Roommate, of course, does much more than encourage orsolicit; it forces users to answer certain questions and thereby provideinformation that other clients can use to discriminate unlawfully.



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Roommate also argues that it is not responsible for theinformation on the profile page because it is each subscribersaction that leads to publication of his particular profileinother words, the user pushes the last button or takes the lastact before publication. We are not convinced that this is eventrue,20 but dont see why it matters anyway. The projectionistin the theater may push the last button before a film is dis-played on the screen, but surely this doesnt make him thesole producer of the movie. By any reasonable use of theEnglish language, Roommate is responsible at least inpart for each subscribers profile page, because every suchpage is a collaborative effort between Roommate and the sub-scriber.

[9] Similarly, Roommate is not entitled to CDA immunityfor the operation of its search system, which filters listings, orof its email notification system, which directs emails to sub-scribers according to discriminatory criteria.21 Roommatedesigned its search system so it would steer users based on thepreferences and personal characteristics that Roommate itselfforces subscribers to disclose. If Roommate has no immunityfor asking the discriminatory questions, as we concludedabove, see pp. 3455-57 supra, it can certainly have no immu-

nity for using the answers to the unlawful questions to limitwho has access to housing.

For example, a subscriber who self-identifies as a Gaymale will not receive email notifications of new housing

20When a prospective subscriber submits his application, Roommatesserver presumably checks it to ensure that all required fields are complete,and that any credit card information is not fraudulent or erroneous. More-over, some algorithm developed by Roommate then decodes the input,transforms it into a profile page and notifies other subscribers of a newapplicant or individual offering housing matching their preferences.

21Other circuits have held that it is unlawful for housing intermediariesto screen prospective housing applicants on the basis of race, even if thepreferences arise with landlords. See Jeanty v.McKey & Poague, Inc., 496F.2d 1119, 1120-21 (7th Cir. 1974).



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opportunities supplied by owners who limit the universe ofacceptable tenants to Straight male(s), Straight female(s)and Lesbian(s). Similarly, subscribers with children will notbe notified of new listings where the owner specifies no chil-dren. Councils charge that limiting the information a sub-scriber can access based on that subscribers protected statusviolates the Fair Housing Act and state housing discriminationlaws. It is, Councils allege, no different from a real estate bro-ker saying to a client: Sorry, sir, but I cant show you anylistings on this block because you are [gay/female/black/a par-ent]. If such screening is prohibited when practiced in personor by telephone, we see no reason why Congress would havewanted to make it lawful to profit from it online.

Roommates search function is similarly designed to steerusers based on discriminatory criteria. Roommates searchengine thus differs materially from generic search enginessuch as Google, Yahoo! and MSN Live Search, in that Room-mate designed its system to use allegedly unlawful criteria soas to limit the results of each search, and to force users to par-ticipate in its discriminatory process. In other words, Councilsallege that Roommates search is designed to make it moredifficult or impossible for individuals with certain protected

characteristics to find housingsomething the law prohibits.By contrast, ordinary search engines do not use unlawfulcriteria to limit the scope of searches conducted on them, norare they designed to achieve illegal endsas Roommatessearch function is alleged to do here. Therefore, such searchengines play no part in the development of any unlawfulsearches. See 47 U.S.C. 230(f)(3).

[10] Its true that the broadest sense of the term developcould include the functions of an ordinary search engineindeed, just about any function performed by a website. Butto read the term so broadly would defeat the purposes of sec-

tion 230 by swallowing up every bit of the immunity that thesection otherwise provides. At the same time, reading theexception for co-developers as applying only to content that



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originates entirely with the websiteas the dissent wouldseem to suggestignores the words development . . . inpart in the statutory passage creation or development inwhole or in part. 47 U.S.C. 230(f)(3) (emphasis added).We believe that both the immunity for passive conduits andthe exception for co-developers must be given their properscope and, to that end, we interpret the term developmentas referring not merely to augmenting the content generally,but to materially contributing to its alleged unlawfulness. Inother words, a website helps to develop unlawful content, andthus 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 languageof the statute, dissent at 3493, but we clearly do pay closeattention to the statutory language, particularly the word de-velop, which we spend many pages exploring. The dissentmay disagree with our definition of the term, which is entirelyfair, but surely our dissenting colleague is mistaken in sug-gesting we ignore the term. Nor is the statutory language quiteas plain as the dissent would have it. Dissent at 3491-93.Quoting selectively from the dictionary, the dissent comes upwith an exceedingly narrow definition of this rather complex

and multi faceted term.22 Dissent at 3491 (defining develop-ment as gradual advance or growth through progressivechanges) (quoting Websters Third New International Dictio-nary 618 (2002)). The dissent does not pause to consider howsuch a definition could apply to website content at all, as itexcludes the kinds of swift and disorderly changes that are thehallmark of growth on the Internet. Had our dissenting col-league looked just a few lines lower on the same page of the

22Development, it will be recalled, has many meanings, which differmaterially depending on context. Thus, development when used as partof the phrase research and development means something quite different

than when referring to mental development, and something else againwhen referring to real estate development, musical development oreconomic development.



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same edition of the same dictionary, she would have foundanother definition of development that is far more suitableto the context in which we operate: making usable or avail-able. Id. The dissent does not explain why the definition ithas chosen reflects the statutes plain meaning, while theones it bypasses do not.

More fundamentally, the dissent does nothing at all to grap-ple with the difficult statutory problem posed by the fact thatsection 230(c) uses both create and develop as separatebases for loss of immunity. Everything that the dissent

includes within its cramped definition of development fitsjust as easily within the definition of creationwhich ren-ders the term development superfluous. The dissent makesno attempt to explain or offer examples as to how its interpre-tation of the statute leaves room for development as a sepa-rate basis for a website to lose its immunity, yet we areadvised by the Supreme Court that we must give meaning toall statutory terms, avoiding redundancy or duplication wher-ever 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 dec-ades, compare Websters Third New International Dictionary618 (1963) with Websters Third New International Dictio-nary 618 (2002) (both containing gradual advance or growththrough progressive changes), the dissent overlooks the farmore relevant definition of [web] content development inWikipedia: the process of researching, writing, gathering,organizing and editing information for publication on websites. 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 withthe context-appropriate meaning of the term, and easily fitsthe activities Roommate engages in.



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In an abundance of caution, and to avoid the kind of misun-derstanding the dissent seems to encourage, we offer a fewexamples to elucidate what does and does not amount to de-velopment under section 230 of the CommunicationsDecency Act: If an individual uses an ordinary search engineto query for a white roommate, the search engine has notcontributed to any alleged unlawfulness in the individualsconduct; providing neutral tools to carry out what may beunlawful or illicit searches does not amount to developmentfor purposes of the immunity exception. A dating website thatrequires users to enter their sex, race, religion and marital sta-tus through drop-down menus, and that provides means forusers to search along the same lines, retains its CDA immu-nity insofar as it does not contribute to any alleged illegality;23

this immunity is retained even if the website is sued for libelbased on these characteristics because the website would nothave contributed materially to any alleged defamation. Simi-larly, a housing website that allows users to specify whetherthey will or will not receive emails by means of user-definedcriteria might help some users exclude email from other usersof a particular race or sex. However, that website would beimmune, so long as it does not require the use of discrimina-tory criteria. A website operator who edits user-created

contentsuch as by correcting spelling, removing obscenityor trimming for lengthretains his immunity for any illegal-ity in the user-created content, provided that the edits areunrelated to the illegality. However, a website operator whoedits in a manner that contributes to the alleged illegalitysuch as by removing the word not from a users messagereading [Name] did notsteal the artwork in order to trans-form an innocent message into a libelous oneis directlyinvolved in the alleged illegality and thus not immune.24

23It is perfectly legal to discriminate along those lines in dating, andthus there can be no claim based solely on the content of these questions.

24Requiring website owners to refrain from taking affirmative acts thatare unlawful does not strike us as an undue burden. These are, after all,businesses that are being held responsible only for their own conduct;



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[11] Here, Roommates connection to the discriminatoryfiltering process is direct and palpable: Roommate designedits search and email systems to limit the listings available tosubscribers based on sex, sexual orientation and presence ofchildren.25 Roommate selected the criteria used to hide list-ings, and Councils allege that the act of hiding certain listingsis itself unlawful under the Fair Housing Act, which prohibitsbrokers from steering clients in accordance with discrimina-tory preferences.26 We need not decide the merits of Councilsclaim to hold that Roommate is sufficiently involved with thedesign and operation of the search and email systemswhich

are engineered to limit access to housing on the basis of theprotected characteristics elicited by the registration processso as to forfeit any immunity to which it was otherwise enti-tled under section 230.

there is no vicarious liability for the misconduct of their customers. Com-pliance with laws of general applicability seems like an entirely justifiedburden for all businesses, whether they operate online or through quaintbrick-and-mortar facilities. Insofar, however, as a plaintiff would bring aclaim under state or federal law based on a website operators passiveacquiescence in the misconduct of its users, the website operator wouldlikely be entitled to CDA immunity. This is true even if the users commit-

ted their misconduct using electronic tools of general applicability pro-vided by the website operator.

25Of course, the logic of Roommates argument is not limited to dis-crimination based on these particular criteria. If Roommate were free todiscriminate in providing housing services based on sex, there is no reasonanother website could not discriminate based on race, religion or nationalorigin. Nor is its logic limited to housing; it would apply equally to web-sites providing employment or educational opportunitiesor anythingelse, for that matter.

26The dissent argues that Roommate is not liable because the decisionto discriminate on these grounds does not originate with Roommate;instead, users have chosen to select characteristics that they find desir-able. Dissent at 3493. But, it is Roommate that forces users to express a

preference and Roommate that forces users to disclose the information thatcan form the basis of discrimination by others. Thus, Roommate makesdiscrimination both possible and respectable.



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Roommates situation stands in stark contrast to StrattonOakmont, the case Congress sought to reverse through pas-sage of section 230. There, defendant Prodigy was held liablefor a users unsolicited message because it attempted toremove some problematic content from its website, but didntremove enough. Here, Roommate is not being sued forremoving some harmful messages while failing to removeothers; instead, it is being sued for the predictable conse-quences of creating a website designed to solicit and enforcehousing preferences that are alleged to be illegal.

We take this opportunity to clarify two of our previous rul-

ings regarding the scope of section 230 immunity. Todaysholding sheds additional light on Batzel v. Smith, 333 F.3d1018 (9th Cir. 2003). There, the editor of an email newsletterreceived a tip about some artwork, which the tipster falselyalleged to be stolen. The newsletter editor incorporated thetipsters email into the next issue of his newsletter and addeda short headnote, which he then emailed to his subscribers. 27

The art owner sued for libel and a split panel held the newslet-ter editor to be immune under section 230 of the CDA. 28

Our opinion is entirely consistent with that part ofBatzel

which holds that an editors minor changes to the spelling,grammar and length of third-party content do not strip him ofsection 230 immunity. None of those changes contributed tothe libelousness of the message, so they do not add up to de-velopment 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 for-ward tips from his subscribers. In effect, the newsletter served as a heavilymoderated discussion list.

28As an initial matter, theBatzel panel held that the defendant newslettereditor was a user of an interactive computer service within the definitionprovided by section 230. While we have our doubts, we express no viewon 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 230s coveragewithout endorsing Batzels analysis on this point.



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selecting the tipsters email for inclusion in the newsletter,depending on whether or not the tipster had tendered the pieceto the editor for posting online, and remanded for a determi-nation of that issue. Batzel, 333 F.3d at 1035.

[12] The distinction drawn by Batzel anticipated theapproach we take today. As Batzel explained, if the tipstertendered the material for posting online, then the editors jobwas, essentially, to determine whether or not to prevent itspostingprecisely the kind of activity for which section 230was meant to provide immunity.29 And any activity that canbe boiled down to deciding whether to exclude material that

third parties seek to post online is perforce immune under sec-tion 230. See p. 3468-69 & n.32 infra. But if the editor pub-lishes material that he does not believe was tendered to himfor posting online, then he is the one making the affirmativedecision to publish, and so he contributes materially to itsallegedly unlawful dissemination. He is thus properly deemeda developer and not entitled to CDA immunity. See Batzel,333 F.3d at 1033.30

29AsBatzel pointed out, there can be no meaningful difference betweenan editor starting with a default rule of publishing all submissions and thenmanually selecting material to be removed from publication, and a defaultrule of publishing no submissions and manually selecting material to be

publishedthey are flip sides of precisely the same coin. Batzel, 333 F.3dat 1032 (The scope of [section 230] immunity cannot turn on whether thepublisher 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 debaters point by noting that the same activitymight amount to development or not, depending on whether it contrib-utes materially to the illegality of the content. Dissent at 3489. But we arenot defining development for all purposes; we are defining the term onlyfor purposes of determining whether the defendant is entitled to immunityfor a particular act. This definition does not depend on finding substantiveliability, but merely requires analyzing the context in which a claim isbrought. A finding that a defendant is not immune is quite distinct fromfinding liability: On remand, Roommate may still assert other defenses toliability under the Fair Housing Act, or argue that its actions do not violatethe Fair Housing Act at all. Our holding is limited to a determination thatthe CDA provides no immunity to Roommates actions in soliciting anddeveloping the content of its website; whether that content is in fact illegalis a question we leave to the district court.



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We must also clarify the reasoning undergirding our hold-ing in Carafano v.Metrosplash.com, Inc., 339 F.3d 1119 (9thCir. 2003), as we used language there that was unduly broad.In Carafano, an unknown prankster impersonating actressChristianne Carafano created a profile for her on an onlinedating site. The profile included Carafanos home address andsuggested that she was looking for an unconventional liaison.When Carafano received threatening phone calls, she sued thedating site for publishing the unauthorized profile. The siteasserted immunity under section 230. We correctly held thatthe website was immune, but incorrectly suggested that itcould never be liable because no [dating] profile has anycontent until a user actively creates it. Id. at 1124. As weexplain above, see pp. 3458-64 supra, even if the data aresupplied by third parties, a website operator may still contrib-ute to the contents illegality and thus be liable as a developer.31

Providing immunity every time a website uses data initiallyobtained from third parties would eviscerate the exception tosection 230 for develop[ing] unlawful content in whole orin part. 47 U.S.C. 230(f)(3).

We believe a more plausible rationale for the unquestion-ably correct result in Carafano is this: The allegedly libelous

content therethe false implication that Carafano wasunchastewas created and developed entirely by the malevo-lent user, without prompting or help from the website opera-tor. To be sure, the website provided neutral tools, which theanonymous dastard used to publish the libel, but the websitedid absolutely nothing to encourage the posting of defamatorycontentindeed, the defamatory posting was contrary to thewebsites express policies. The claim against the website was,in effect, that it failed to review each user-created profile toensure that it wasnt defamatory. That is precisely the kind ofactivity for which Congress intended to grant absolution with

31We disavow any suggestion that Carafano holds an information con-tent provider automatically immune so long as the content originated withanother information content provider. 339 F.3d at 1125.



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the passage of section 230. With respect to the defamatorycontent, the website operator was merely a passive conduitand thus could not be held liable for failing to detect andremove it.32

By contrast, Roommate both elicits the allegedly illegalcontent and makes aggressive use of it in conducting its busi-ness. Roommate does not merely provide a framework thatcould be utilized for proper or improper purposes; rather,Roommates work in developing the discriminatory questions,discriminatory answers and discriminatory search mechanism

is directly related to the alleged illegality of the site. UnlikeCarafano, where the website operator had nothing to do withthe users decision to enter a celebritys name and personalinformation in an otherwise licit dating service, here, Room-mate is directly involved with developing and enforcing a sys-tem that subjects subscribers to allegedly discriminatoryhousing practices.

Our ruling today also dovetails with another facet ofCara-fano: The mere fact that an interactive computer service clas-sifies user characteristics . . . does not transform [it] into adeveloper of the underlying misinformation. Carafano,

339 F.3d at 1124. Carafano, likeBatzel, correctly anticipatedour common-sense interpretation of the term develop[ ] insection 230. Of course, any classification of information, likethe sorting of dating profiles by the type of relationshipsought 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 websites classifi-

32Section 230 requires us to scrutinize particularly closely any claimthat can be boiled down to the failure of an interactive computer serviceto edit or block user-generated content that it believes was tendered forposting online, see pp. 3466-67 supra, as that is the very activity Congresssought to immunize by passing the section. See pp. 3453-55 supra.



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cations of user characteristics did absolutely nothing toenhance the defamatory sting of the message, to encouragedefamation or to make defamation easier: The site providedneutral tools specifically designed to match romantic partnersdepending on their voluntary inputs. By sharp contrast,Roommates website is designed to force subscribers todivulge protected characteristics and discriminatory prefer-ences, and to match those who have rooms with those who arelooking for rooms based on criteria that appear to be prohib-ited 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 inter-circuit conflict. And with good reason: No other circuit has considereda case like ours and none has a case that even arguably conflicts with ourholding today. No case cited by the dissent involves active participationby the defendant in the creation or development of the allegedly unlawfulcontent; in each, the interactive computer service provider passivelyrelayed content generated by third parties, just as in Stratton Oakmont, anddid 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 Circuitheld the online classified website craigslist immune from liability for dis-criminatory housing advertisements submitted by users. Craigslists ser-vice works very much like the Additional Comments section of

Roommates website, in that users are given an open text prompt in whichto enter any description of the rental property without any structureimposed on their content or any requirement to enter discriminatory infor-mation: Nothing in the service craigslist offers induces anyone to post anyparticular listing or express a preference for discrimination . . . . Slip op.at 9. We similarly hold the Additional Comments section of Room-mates site immune, see pp. 3471-75 infra. Consistent with our opinion,the Seventh Circuit explained the limited scope of section 230(c) immu-nity. Craigslist, slip op. at 5-7. More directly, the Seventh Circuit notedin dicta that causing aparticularstatement to be made, or perhaps [caus-ing] the discriminatory content of a statement might be sufficient tocreate liability for a website. Slip op. at 9 (emphasis added). Despite thedissents attempt to imply the contrary, the Seventh Circuits opinion isactually in line with our own.

In Universal Communications Systems v. Lycos, Inc., the First Circuitheld a message board owner immune under the CDA for defamatory com-ments posted on a message board. 478 F.3d 413 (1st Cir. 2007). The alleg-



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3. Councils finally argue that Roommate should be held lia-ble for the discriminatory statements displayed in the Addi-tional Comments section of profile pages. At the end of theregistration process, on a separate page from the other regis-tration steps, Roommate prompts subscribers to tak[e] amoment to personalize your profile by writing a paragraph ortwo describing yourself and what you are looking for in aroommate. The subscriber is presented with a blank text box,in which he can type as much or as little about himself as hewishes. Such essays are visible only to paying subscribers.

Subscribers provide a variety of provocative, and often

edly defamatory comments were made without any prompting orencouragement by defendant: [T]here is not even a colorable argumentthat any misinformation was prompted by Lycoss registration process orits link structure. Id. at 420.

Green v.America Online, 318 F.3d 465 (3d Cir. 2003), falls yet fartherfrom the mark. There, AOL was held immune for derogatory commentsand malicious software transmitted by other defendants through AOLsRomance over 30 chat room. There was no allegation that AOL solic-ited the content, encouraged users to post harmful content or otherwisehad any involvement whatsoever with the harmful content, other thanthrough providing chat rooms for general use.

InBen Ezra, Weinstein, and Co. v. America Online Inc., 206 F.3d 980(10th Cir. 2000), the Tenth Circuit held AOL immune for relaying inaccu-rate stock price information it received from other vendors. While AOLundoubtedly participated in the decision to make stock quotations avail-able to members, it did not cause the errors in the stock data, nor did itencourage or solicit others to provide inaccurate data. AOL was immunebecause Plaintiff could not identify any evidence indicating Defendant[AOL] developed or created the stock quotation information. Id. at 985n.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 defama-tory and harassing message board postings. Again, AOL did not solicit the

harassing content, did not encourage others to post it, and had nothing todo with its creation other than through AOLs role as the provider of ageneric message board for general discussions.



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very revealing, answers. The contents range from subscriberswho [p]ref[er] white Male roommates or require that [t]heperson applying for the room MUST be a BLACK GAYMALE 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 fewsubscribers express more particular preferences, such as pre-ferring to live in a home free of psychos or anyone on mentalmedication. Some subscribers are just looking for someonewho will get along with their significant other34 or with theirmost significant Other.35

[13] Roommate publishes these comments as written.36 Itdoes not provide any specific guidance as to what the essayshould contain, nor does it urge subscribers to input discrimi-natory preferences. Roommate is not responsible, in whole orin part, for the development of this content, which comesentirely from subscribers and is passively displayed by Room-mate. Without reviewing every essay, Roommate would haveno way to distinguish unlawful discriminatory preferencesfrom perfectly legitimate statements. Nor can there be anydoubt that this information was tendered to Roommate forpublication online. See pp. 3466-67 supra. This is precisely

the kind of situation for which section 230 was designed toprovide immunity. See pp. 3453-3455 supra.

[14] The fact that Roommate encourages subscribers toprovide something in response to the prompt is not enough tomake it a develop[er] of the information under thecommon-sense interpretation of the term we adopt today. It is

34The female we are looking for hopefully wont [sic] mind having alittle sexual incounter [sic] with my boyfriend and I [very sic].

35We are 3 Christian females who Love our Lord Jesus Christ . . . . Wehave weekly bible studies and bi-weekly times of fellowship.

36It is unclear whether Roommate performs any filtering for obscenityor spam, but even if it were to perform this kind of minor editing andselection, the outcome would not change. See Batzel, 333 F.3d at 1031.



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entirely consistent with Roommates business model to havesubscribers disclose as much about themselves and their pref-erences as they are willing to provide. But Roommate doesnot tell subscribers what kind of information they should ormust include as Additional Comments, and certainly doesnot encourage or enhance any discriminatory content createdby users. Its simple, generic prompt does not make it a devel-oper of the information posted.37

Councils argue thatgiven the context of the discrimina-tory questions presented earlier in the registration processthe Additional Comments prompt impliedly suggests thatsubscribers should make statements expressing a desire to dis-criminate on the basis of protected classifications; in otherwords, Councils allege that, by encouraging some discrimina-tory preferences, Roommate encourages other discriminatorypreferences when it gives subscribers a chance to describethemselves. But the encouragement that bleeds over from onepart of the registration process to another is extremely weak,if it exists at all. Such weak encouragement cannot strip awebsite of its section 230 immunity, lest that immunity berendered meaningless as a practical matter.38

We must keep firmly in mind that this is an immunity stat-ute 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 itprovided a free-text search that enabled users to find keywords in the Ad-ditional Comments of others, even if users utilized it to search for dis-criminatory keywords. Providing neutral tools for navigating websites isfully protected by CDA immunity, absent substantial affirmative conducton the part of the website creator promoting the use of such tools forunlawful purposes.

38Its true that, under a pedantic interpretation of the term develop,any action by the websiteincluding the mere act of making a text boxavailable to write incould be seen as develop[ing] content. However,we have already rejected such a broad reading of the term developbecause it would defeat the purpose of section 230. See pp. 3461-64 supra.



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offensive content. See pp. 3453-3455 supra. Websites arecomplicated enterprises, and there will always be close caseswhere a clever lawyer could argue that something the websiteoperator did encouraged the illegality. Such close cases, webelieve, must be resolved in favor of immunity, lest we cutthe heart out of section 230 by forcing websites to face deathby ten thousand duck-bites, fighting off claims that they pro-moted or encouragedor at least tacitly assented tothe ille-gality of third parties. Where it is very clear that the websitedirectly participates in developing the alleged illegalityas itis clear here with respect to Roommates questions, answersand the resulting profile pagesimmunity will be lost. But in

cases of enhancement by implication or development byinferencesuch as with respect to the Additional Com-ments heresection 230 must be interpreted to protect web-sites not merely from ultimate liability, but from having tofight costly and protracted legal battles.

[15] The dissent prophesies doom and gloom for countlessInternet services, Dissent at 3490-91, but fails to recognizethat we hold part of Roommates service entirely immunefrom liability. The search engines the dissent worries about,id., closely resemble the Additional Comments section ofRoommates website. Both involve a generic text prompt withno direct encouragement to perform illegal searches or to pub-lish illegal content. We hold Roommate immune and there isno reason to believe that future courts will have any difficultyapplying this principle.39 The message to website operators is

39The dissent also accuses us of creating uncertainty that will chill thecontinued growth of commerce on the Internet. Dissent at 3496. Evenlooking beyond the fact that the Internet has outgrown its swaddlingclothes and no longer needs to be so gently coddled, see p. 3456 n.15supra, some degree of uncertainty is inevitable at the edge of any rule oflaw. Any immunity provision, including section 230, has its limits andthere will always be close cases. Our opinion extensively clarifies wherethat edge lies, and gives far more guidance than our previous cases. Whilethe dissent disagrees about the scope of the immunity, there can be littledoubt that website operators today know more about how to conform theirconduct to the law than they did yesterday.



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clear: If you dont encourage illegal content, or design yourwebsite to require users to input illegal content, you will beimmune.

We believe that this distinction is consistent with the intentof Congress to preserve the free-flowing nature of Internetspeech and commerce without unduly prejudicing theenforcement of other important state and federal laws. WhenCongress passed section 230 it didnt intend to prevent theenforcement of all laws online; rather, it sought to encourageinteractive computer services that provide users neutral toolsto post content online to police that content without fear that

through their good samaritan . . . screening of offensivematerial, 47 U.S.C. 230(c), they would become liable forevery single message posted by third parties on their website.

* * *

[16] In light of our determination that the CDA does notprovide immunity to Roommate for all of the content of itswebsite and email newsletters, we remand for the districtcourt to determine in the first instance whether the allegedactions 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 provi-sions. Its no surprise that defendants want to extend immunity as broadlyas possible. We have long dealt with immunity in different, and arguablyfar more important, contextssuch as qualified immunity for police offi-cers in the line of duty, see Clementv. J&E Service Inc., No. 05-56692,slip op. at 2347 (9th Cir. Mar. 11, 2008)and observed many defendantsargue that the risk of getting a close case wrong is a justification forbroader immunity. Accepting such an argument would inevitably lead toan endless broadening of immunity, as every new holding creates its ownborderline cases.

40We do not address Roommates claim that its activities are protectedby the First Amendment. The district court based its decision entirely onthe CDA and we refrain from deciding an issue that the district court hasnot had the opportunity to evaluate. See Mukherjee v.INS, 793 F.2d 1006,1010 (9th Cir. 1986).



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of the state law claims so that the district court may recon-sider whether to exercise its supplemental jurisdiction in lightof our ruling on the federal claims. Fredenburg v. ContraCosta County Dept of Health Servs., 172 F.3d 1176, 1183(9th Cir. 1999). We deny Roommates cross-appeal of thedenial of attorneys fees and costs; Councils prevail on someof their arguments before us so their case is perforce not friv-olous.

REVERSED in part, VACATED in part, AFFIRMEDin 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 than1.3 billion Internet users and over 158 million websites in exis-tence,1 a vast number of them interactive like Google, Yahoo!,Craigslist, MySpace, YouTube, and Facebook, the question ofwebhost liability is a significant one. On a daily basis, we relyon 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 patrio-tism; and enlighten ourselves on subjects from aardvarks toZoroastrianism.2

The majoritys unprecedented expansion of liability forInternet service providers threatens to chill the robust devel-opment of the Internet that Congress envisioned. The majoritycondemns Roommates 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).



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heart of interactive service providers. My concern is not anempty Chicken Little sky is falling alert. By exposing everyinteractive service provider to liability for sorting, searching,and utilizing the all too familiar drop-down menus, the major-ity has dramatically altered the landscape of Internet liability.Instead of the robust3 immunity envisioned by Congress,interactive service providers are left scratching their headsand 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 serviceproviders will not be held legally responsible for publishinginformation provided by third parties. 47 U.S.C. 230(c)(1).Even though traditional publishers retain liability for perform-ing essentially equivalent acts in the non-virtual world,Congress chose to treat interactive service providers differ-ently by immunizing them from liability stemming from sort-ing, searching, and publishing third-party information. As weexplained in Batzel v. Smith:

[Section] 230(c)(1)[ ] overrides the traditional treat-

ment of publishers, distributors, and speakers understatutory and common law. As a matter of policy,Congress decided not to treat providers of interac-tive computer services like other information provid-ers such as newspapers, magazines or television andradio stations . . . . Congress . . . has chosen to treatcyberspace differently.

333 F.3d 1018, 1026-1027 (9th Cir. 2003) (quoting Blumen-thal v. Drudge, 992 F. Supp. 44, 49 (D.D.C. 1998) (footnoteomitted)).

3Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1123 (9th Cir.2003).



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Now, with the stroke of a pen or, more accurately, a fewstrokes of the keyboard, the majority upends the settled viewthat interactive service providers enjoy broad immunity whenpublishing information provided by third parties. Instead,interactive service providers are now joined at the hip withthird-party users, and they rise and fall together in liability forInternet sortings and postings.

To be sure, the statute, which was adopted just as the Inter-net was beginning a surge of popular currency,4 is not a per-fect match against todays technology. The Web 2.0 versionis a far cry from web technology in the mid-1990s. Nonethe-less, the basic message from Congress has retained its trac-tion, and there should be a high bar to liability for organizingand searching third-party information. The bipartisan view inCongress was that the Internet, as a new form of communica-tion, should not be impeded by the transference of regulationsand principles developed from traditional modes of communi-cation. The majority repeatedly harps that if something is pro-hibited in the physical world, Congress could not haveintended it to be legal in cyberspace. Yet that is precisely thepath Congress took with the CDA: the anomaly that a web-host may be immunized for conducting activities in cyber-

space that would traditionally be cause for liability is exactlywhat Congress intended by enacting the CDA.

In the end, the majority offers interactive computer serviceproviders no bright lines and little comfort in finding a homewithin 230(c)(1). The result in this case is driven by the dis-taste for housing discrimination, a laudable endgame werehousing the real focus of this appeal. But it is not. I share themajoritys view that housing discrimination is a troublingissue. Nevertheless, we should be looking at the housing issue

4According to one commentator, in 1985, there were approximately1,000 host computers connected to the Internet; by 1995, that number hadexploded to 4,000,000. Paul H. Arne, New Wine in Old Bottles: TheDeveloping Law of the Internet, 416 PLI/Pat 9, 15 (Sept. 1995).



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through the lens of the Internet, not from the perspective oftraditional publisher liability. Whether 230(c)(1) trumps theFair Housing Act (FHA) is a policy decision for Congress,not us. Congress has spoken: third-party content on the Inter-net should not be burdened with the traditional legal frame-work.

I respectfully part company with the majority as to Part 25

of the opinion because the majority has misconstrued the stat-utory protection under the CDA for Roommates publishingand sorting of user profiles. The plain language and structure

of the CDA unambiguously demonstrate that Congressintended these activitiesthe collection, organizing, analyz-ing, searching, and transmitting of third-party contentto bebeyond the scope of traditional publisher liability. The majori-tys decision, which sets us apart from five circuits, contra-venes congressional intent and violates the spirit andserendipity of the Internet.

Specifically, the majoritys analysis is flawed for three rea-sons: (1) the opinion conflates the questions of liability underthe FHA and immunity under the CDA; (2) the majority

rewrites the statute with its definition of information contentprovider, labels the search function information develop-ment, and strips interactive service providers of immunity;and (3) the majoritys approach undermines the purpose of 230(c)(1) and has far-reaching practical consequences in theInternet world.

5The complaint centers on the responses and profiles generated by theusers. To the extent that the inquiry in isolation is part of the claims, thenI agree with Part 1 of the majoritys opinion that 230(c)(1) would notprotect Roommate. However, I cannot join the majority insofar as it evis-cerates the distinction between traditional publishers and webhosts. See,

e.g., Maj. Op. at 3456 (ignoring the Congressional carveout for interactiveservice providers and concluding that if a face-to-face transaction wereillegal, it could not be legal in cyberspace).



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To begin, it is important to recognize what this appeal isnot about. At this stage, there has been no determination ofliability under the FHA, nor has there been any determinationthat the questions, answers or even the existence of Room-mates website violate the FHA. The FHA is a complicatedstatute and there may well be room for potential roommatesto select who they want to live with, e.g., a tidy accountantwanting a tidy professional roommate, a collegiate malerequesting a male roommate, an observant Jew needing ahouse with a kosher kitchen, or a devout, single, religiousfemale preferring not to have a male housemate. It also bearsnoting that even if Roommate is immune under the CDA, the

issue of user liability for allegedly discriminatory preferencesis a separate question. See Zeran v. Am. Online, Inc., 129 F.3d327, 330 (4th Cir. 1997) (stating that the original culpableparty does not escape accountability).

By offering up inflammatory examples, the majoritysopinion 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 orendorse unlawful discriminatory roommate selection prac-tices; I simply underscore that the merits of the FHA claimare not before us. However, one would not divine this posture

from the majoritys opinion, which is infused with condemna-tion of Roommates users practices. To mix and match, asdoes the majority, the alleged unlawfulness of the informationwith the question of webhost immunity is to rewrite the stat-ute.

Examples from the opinion highlight that the majoritysconclusion rests on the premise that Roommates questionsand 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 face-to-face or by telephone, they dont magically



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become lawful when asked electronicallyonline. Id. at 3456.

If such screening is prohibited when practiced inperson or by telephone, we see no reason whyCongress would have wanted to make it lawful toprofit from it online. Id. at 3461.

Roommates search function thus differs materi-ally from generic search engines such as Google,Yahoo! and MSN Live Search, in that Roommate

designed its system to use allegedly unlawfulcriteria so as to limit the results of each search,and to force users to participate in its discrimina-tory process. Id.

By contrast, ordinary search engines do not useunlawful criteria to limit the scope of searchesconducted on them, nor are they designed toachieve illegal endsas Roommates searchfunction is alleged to do here. Id.

Roommates website is designed to force sub-scribers to divulge protected characteristics anddiscriminatory preferences. Id. at 3470.

The entire opinion links Roommates ostensibly reprehensi-ble conduct (and that of its users) with an unprecedentedinterpretation of the CDAs immunity provision. The majoritycondemns Roommate for soliciting illegal content, but therehas been no determination that Roommates questions or stan-dardized answers are illegal. Instead of foreshadowing a rul-ing on the FHA, the opinion should be confined to the issue

before usapplication of 230(c)(1) to Roommate. The dis-trict court has not yet ruled on the merits of the FHA claimand neither should we.



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The Statute

With this background in mind, I first turn to the text of thestatute. Section 230 begins with a detailed recitation of find-ings and policy reasons for the statute. Congress expresslyfound that the Internet and other interactive computer ser-vices offer a forum for a true diversity of political discourse,unique opportunities for cultural development, and myriadavenues for intellectual activity, and that [i]ncreasinglyAmericans are relying on interactive media for a variety ofpolitical, educational, cultural, and entertainment services.

47 U.S.C. 230(a)(3), (5). Congress declared that [i]t is thepolicy of the United States to . . . promote the continueddevelopment of the Internet and other interactive computerservices and other interactive media. 230(b)(1).6

Unlike some statutes, subsections (a) and (b) set out inclear terms the congressional findings and policies underlyingthe statute. For this reason, it strikes me as odd that the major-ity begins, not with the statute and these express findings, butwith legislative history. Granted, Congress was prompted byseveral cases, particularly the Prodigy case, to take action toprotect 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 thescope of the statute, and the background leading up to enact-ment of the CDA is no substitute for the language of the stat-ute itself. See Chicago Lawyers Comm. for Civil RightsUnder 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 Prod-igy).

6The statute also seeks to remove disincentives for the developmentand utilization of blocking and filtering technologies and to ensure vig-orous enforcement of Federal criminal laws to deter and punish traffickingin obscenity, stalking, and harassment by means of computer. 230(b)(4), (5).



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Section 230(c), the heart of this case, is entitled Protectionfor good samaritan blocking and screening of offensivematerial[.] The substantive language of the statute itself isnot so limited. Section 230(c)(1) provides:

(1) Treatment of publisher or speaker

No provider or user of an interactive computer ser-vice shall be treated as the publisher or speaker ofany information provided by another informationcontent provider.

230(c)(1). Since it was first addressed in 1997 inZeran, thissection has been interpreted by the courts as providing web-host immunity, although to be more precise, it provides asafe haven for interactive computer service providers byremoving them from the traditional liabilities attached tospeakers and publishers.7See Zeran, 129 F.3d at 330 (By itsplain language, 230 creates a federal immunity to any causeof action that would make service providers liable for infor-mation 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 sistercircuits have similarly embraced this robust view of immunityby providing differential treatment to interactive service pro-viders. Chicago Lawyers Comm. for Civil Rights Under theLaw, Inc. v. Craigslist, Inc., No. 07-1101, slip op. at 7-8 (7thCir. Mar. 14, 2008); Universal Commcn Sys. v. Lycos, Inc.,478 F.3d 413, 415 (1st Cir. 2007); Green v. Am. Online, 318F.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 accuratelycharacterized as an immunity provision, but is not relevant to our discus-

sion here. Compare 47 U.S.C. 230(c)(2) (stating that [n]o provider oruser of an interactive computer service shall be held liable . . .) (emphasisadded).



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Zeran, 129 F.3d at 330; see also Whitney Info. Network, Inc.v. Xcentric Ventures, LLC, No. 2:04-cv-47-FtM-34SPC, 2008U.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); Gentryv. 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 provid-er. The CDA defines an interactive computer service asany information service, system, or access software providerthat provides or enables computer access by multiple users toa computer server. 230(f)(2). An interactive computer ser-vice provider is not liable as a publisher or speaker ofinformation if the information is provided by anotherinformation content provider. 230(c)(1). The statute thendefines an information content provider as a person orentity that is responsible, in whole or in part, for the creationor development of information provided through the Internet

or any other interactive computer service. 230(f)(3). If theprovider of an interactive computer service is an informationcontent provider of the information at issue, it cannot claimimmunity as a publisher or speaker. Carafano, 339 F.3d at1123.

Courts deciding the question of 230(c)(1) immunity donot write on a blank slate. Universal Commcn, 478 F.3d at418. Even though rapid developments in technology havemade webhosts increasingly adept at searching and displayingthird-party information, reviewing courts have, in the twelveyears since the CDAs enactment, adopt[ed] a relatively

expansive definition of interactive computer service and arelatively restrictive definition of information content provid-er. See Carafano, 339 F.3d at 1123 (footnotes omitted). As



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long as information is provided by a third party, webhosts areimmune from liability for publishing ads for housing, auc-tions of paintings that may have been stolen by Nazis, bitingcomments about steroids in baseball, efforts to verify the truthof politicians promises, and everything else that third partiesmay post on a web site. Craigslist, No. 07-1101, slip op. at9. We have underscored that this broad grant of webhostimmunity gives effect to Congresss stated goals to promotethe continued development of the Internet and other interac-tive computer services and to preserve the vibrant and com-petitive free market that presently exists for the Internet andother interactive computer services. Carafano, 339 F.3d at1123 (discussing 230(b)(1), (2)).

Application of 230(c)(1) to Roommates Website

Because our focus is on the term information content pro-vider, and what it means to create or develop information, itis worth detailing exactly how the website operates, whatinformation is at issue and who provides it. The roommatematching process involves three categories of data: AboutMe or Household Description; Roommate Preferences; andComments.

To become a member of Roommates.com, a user mustcomplete a personal profile by selecting answers from drop-down menus or checking off boxes on the screen. The profileincludes location information (e.g., city and state, region ofthe city, and data about the surrounding neighborhood);details about the residence (e.g., the total number of bedroomsand bathrooms in the home, and amenities such as air condi-tioning, wheelchair access, high-speed Internet, or parking),and the rental details (e.g., monthly rent charged, leaseperiod, and availability). The last section of the profile is theHousehold Description section,8 which includes the total

8A user who is a room-seeker fills out an equivalent section namedAbout Me.



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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 com-pletely optional; a user who skips them has created a profilebased on the information already provided. At his option, theuser may select an emoticon to describe the household char-acter, and may upload images of the room or residence.Next, users may, at their option, specify characteristicsdesired in a potential roommate, such as a preferred agerange, 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 BasicsRent: $800 per month + $800 depositLease: 6 monthDate available: 09/01/04 (14 days)Utilities included: N/AFeatures: Private bedroom, Private bathroom

Residence & VicinityBuilding: House, 2 bed, 1.5 bathFeatures: N/ALocation: (Central) Long Beach, CA

HouseholdOccupant: 1, Age 26, Male (straight)Occupation: StudentSmoking habits: Outside smokerCleanliness: About averageChildren: Children will not be living with usPets: Dog(s)

PreferencesAge group: 18-99Gender: Male (straight or gay), Female (straight or lesbian)Smoking: Smoking okayCleanliness level: Clean, Average, MessyPets: Dog okay, Cat okay, Caged pet okayChildren: Children okay

CommentsLOOKING FOR CHILL ROOMATE [sic] TO SHARE 2 BRHOUSE WITH DOG AND FERRET - RENT800/MO+utill.6mo.lease.



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cess, which is also optional, is the Comments section, inwhich users are presented with a blank text box in which theymay write whatever they like, to be published with their mem-ber profiles.

Users may choose an optional custom search of user pro-files based on criteria that they specify, like the amount ofmonthly rent or distance from a preferred city. Based on theinformation provided by users during the registration process,Roommates automated system then searches and matchespotential roommates. Roommates Terms of Service providein part, You understand that we do not provide the informa-tion on the site and that all publicly posted or privately trans-mitted information, data, text, photographs, graphics,messages, or other materials (Content) are the sole responsi-bility of the person from which such Content originated.

Roommates users are information content providersbecause they are responsible for creating the information intheir user profiles and, at their option not the websiteschoice in expressing preferences as to roommate character-istics. 230(f)(3). The critical question is whether Roommateis itself an information content provider, such that it cannot

claim that the information at issue was provided by anotherinformation content provider. A close reading of the statuteleads to the conclusion that Roommate is not an informationcontent provider for two reasons: (1) providing a drop-downmenu does not constitute creating or developing informa-tion; and (2) the structure and text of the statute make plainthat Congress intended to immunize Roommates sorting, dis-playing, and transmitting of third-party information.

Roommate neither creates nor develops the informa-tion that is challenged by the Councils, i.e., the informationprovided by the users as to their protected characteristics and

the preferences expressed as to roommate characteristics. AllRoommate does is to provide a form with options for stan-dardized answers. Listing categories such as geographic loca-



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tion, cleanliness, gender and number of occupants, andtransmitting to users profiles of other users whose expressedinformation matches their expressed preferences, can hardlybe said to be creating or developing information. Even addingstandardized options does not develop information. Room-mate, with its prompts, is merely selecting material for publi-cation, which we have stated does not constitute thedevelopment of information.Batzel, 333 F.3d at 1031. Theprofile is created solely by the user, not the provider of theinteractive website. Indeed, without user participation, there isno information at all. The drop-down menu is simply a pre-categorization of user information before the electronic sort-ing and displaying that takes place via an algorithm. If a userhas identified herself as a non-smoker and another hasexpressed a preference for a non-smoking roommate, Room-mates sorting and matching of user information are no differ-ent than that performed by a generic search engine.

Displaying the prompt Gender and offering the list ofchoices, Straight male; Gay male; Straight female; Gayfemale does not develop the information, I am a Gay male.The user has identified himself as such and provided thatinformation 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 Preferencessection and drop-down menus of options does not developa users preference for a non-smoking roommate. As westated in Carafano, the actual profile information consist[s]of the particular options chosen by the user, such that Room-mate is not responsible, even in part, for associating certainmultiple choice responses with a set of [ ] characteristics.339 F.3d at 1124.

The thrust of the majoritys proclamation that Roommate isdeveloping the information that it publishes, sorts, and

transmits is as follows: [W]e interpret the term develop-ment as referring not merely to augmenting the content gen-erally, but to materially contributing to its unlawfulness.



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Maj. Op. at 3462. This definition is original to say the leastand springs forth untethered to anything in the statute.

The majoritys definition of development epitomizes itsconsistent collapse of substantive liability with the issue ofimmunity. Where in the statute does Congress say anythingabout unlawfulness? Whether Roommate is entitled to immu-nity for publishing and sorting profiles is wholly distinct fromwhether Roommate may be liable for violations of the FHA.Immunity has meaning only when there is something to beimmune from, whether a disease or the violation of a law. Itwould be nonsense to claim to be immune only from theinnocuous. But the majoritys immunity analysis is built onsubstantive liability: to the majority, CDA immunity dependson whether a webhost materially contributed to the unlawful-ness of the information. Whether the information at issue isunlawful and whether the webhost has contributed to itsunlawfulness are issues analytically independent of the deter-mination of immunity. Grasping at straws to distinguishRoommate from other interactive websites such as Googleand Yahoo!, the majority repeatedly gestures to Roommatespotential substantive liability as sufficient reason to disturb itsimmunity. 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 onlypurported statutory violations but also potential defamatorystatements. The irony is that the majority would have usdetermine guilt or liability in order to decide whetherimmunity is available. This upside-down approach wouldknock out even the narrowest immunity offered under 230(c) immunity for defamation as a publisher orspeaker.

Another flaw in the majoritys approach is that it fails to

account for all of the other information allegedly developedby the webhost. For purposes of determining whether Room-mate is an information content provider vis-a-vis the profiles,

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