Liability of Interactive Computer Service for Violating the Fair Housing Act

Liability of Interactive Computer Service
for Violating the Fair Housing Act
Henry Cohen
Legislative Attorney
American Law Division
Summary
In Fair Housing Council of San Fernando Valley v. Roommates.com, 489 F.3d 921
(9th Cir. 2007), a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit
held that an interactive computer service may be held liable for violating the Fair
Housing Act, notwithstanding a federal statute that provides immunity from all civil
liability to interactive computer services in some circumstances. An interactive
computer service is defined by 47 U.S.C. § 230(f)(2) as a service that “enables computer
access by multiple users to a computer server”; it may include an Internet service¹
provider, such as AOL, or a website that allows others to post messages. On April 3,

2008, the en banc Ninth Circuit (i.e., 11 judges) affirmed the panel’s decision.²

On May 15, 2007, a three-judge panel of the U.S. Court of Appeals for the Ninth
Circuit held that 47 U.S.C. § 230(c) does not provide immunity from liability for alleged
violations of the Fair Housing Act (FHA) to a website that posts information provided by
people seeking roommates. Although 47 U.S.C. § 230(c) provides immunity to interactive
computer services that publish information provided by others, in this case, the court
found, the website had provided questionnaires on which the information provided by
people seeking roommates was based. This meant, the court held, that the website was
itself an information content provider and had not merely published information provided
by others. On April 3, 2008, the en banc Ninth Circuit affirmed the panel’s decision.
The federal statute that provides immunity to interactive computer services is 47
U.S.C. § 230(c), which was enacted as part of Title V of the Communications Decency
Act of 1996 (CDA), P.L. 104-104. It provides that “[n]o provider . . . of an interactive

¹ The full definition reads, “The term ‘interactive computer service’ means any information
service, system, or access software provider that provides or enables computer access by multiple
users to a computer server, including specifically a service or system that provides access to the
Internet and such systems operated or services offered by libraries or educational institutions.”
² Although the website, as it appears on the Internet and in the title of the case, is
“Roommates.com,” the court, in both decisions, refers to the party as “Roommate” (singular).

computer service shall be treated as the publisher or speaker of any information provided
by another information content provider.”³
The defendant in this case, Roommate, is a website that “helps individuals find
roommates based on their descriptions of themselves and their roommate preferences.”
It furnishes such members with online questionnaires through which the members
“disclose information about themselves and their roommate preferences based on such
characteristics as age, sex and whether children will live in the household. They can then
provide ‘Additional Comments’ through an open-ended essay prompt.”⁴
The plaintiff in this case charged that Roommate had violated the Fair Housing Act,
which prohibits, among other things, publishing or causing to be published any statement,
such as an advertisement, with respect to the sale or rental of a dwelling that indicates any
preference “based on race, color, religion, sex, handicap, familial status, or national
origin.” 42 U.S.C. § 3604(c).⁵ The plaintiff alleged that Roommate had violated this
provision in three ways: (1) by posting its questionnaires, (2) by posting and distributing
by e-mail profiles based on the questionnaires, and (3) by posting the “Additional
Comments” that members provide. Roommate claimed that it was immune from liability
under 47 U.S.C. § 230(c), and a three-judge panel of the Ninth Circuit ruled as follows
with respect to the three charges against Roommate:
Judge Kozinski: Roommate was immune only with respect to charge (3).
Judge Reinhardt: Roommate was immune with respect to none of the charges.
Judge Ikuta: Roommate was immune only with respect to charges (2) and (3).
Thus, there were no votes for immunity with respect to charge (1), one vote for
immunity with respect to charge (2), and two votes for immunity with respect to charge
(3). Roommate thus received a majority in its favor only with respect to charge (3). This
coincided with Judge Kozinski’s vote, so Judge Kozinski’s opinion became the opinion
of the court. Judge Kozinski’s opinion concluded:

³ “One of Congress’s goals in adopting this provision was to encourage ‘the unfettered and
unregulated development of free speech on the Internet.’” Roommates.com, 489 F.3d at 925,
quoting Batzel v. Smith, 333 F.3d 1018, 1027 (9th Cir. 2003).
⁴ 489 F.3d at 924.
⁵ Even though the FHA Act prohibits publishing statements that discriminate on the basis of race,
color, religion, sex, handicap, familial status, or national origin, it does not prohibit
discrimination on these bases in the sale or rental itself in some cases that can include roommate
situations. Specifically, the FHA does not apply to sales or rentals in some cases in which a
single family home is sold or rented without the services of a real estate agent, and it does not
apply to the sale or rental of rooms or units in dwellings occupied by no more than four families
if the owner occupies one of the rooms or units. 42 U.S.C. § 3603(b). The FHA’s prohibition
of advertising for legal conduct arguably violates the First Amendment, but the three-judge panel
did not consider the question, and, for that reason, the en banc court also did not consider it. See
footnote 40 of the en banc opinion.

Having determined that the CDA does not immunize Roommate for all of the content
on its website . . . , we remand for a determination of whether its non-immune⁶
publication and distribution of information violates the FHA, 42 U.S.C. § 3404(c).
Kozinski Opinion
In his opinion for the court, Judge Alex Kozinski acknowledged that “Roommate is
immune so long as it merely publishes information provided by its members. . . .
However, Roommate is not immune for providing materials as to which it is an
‘information content provider.’ A content provider is ‘any person or entity that is
responsible, in whole or in part, for the creation or development of information provided⁷
through the Internet.’ 47 U.S.C. § 230(f)(3) (emphasis added [by Judge Kozinski]).”
With respect to the three alleged violations of the FHA with which Roommate was
charged, Judge Kozinski found that (1) “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 for⁸
CDA immunity for their publication”; (2) Roommate does not merely passively pass on
information it has received from members when it publishes and distributes members’
profiles, but, “[b]y categorizing, channeling and limiting the distribution of users’
profiles, Roommate provides an additional layer of information that it is ‘responsible’ at⁹
least ‘in part’ for creating or developing”; and (3) Roommate is “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.”¹⁰ Roommate, however, is not immune for (1) posting its questionnaires or (2)
posting and distributing members’ profiles. This does not necessarily mean that
Roommate violated the FHA, but only that, if it did, it is not immune under 47 U.S.C.
§ 230(c).
In reaching his conclusion with respect to the second charge against Roommate —
posting and distributing profiles based on the questionnaires — Judge Kozinski
distinguished the Ninth Circuit case of Carafano v. Metrosplash.com, Inc., 339 F.3d 1119
(9th Cir. 2003). In Carafano, as Kozinski wrote in Roommates.com, “an unidentified
prankster placed a fraudulent personal ad on a date matching website. . . . We held that
the CDA exempted the service from liability for two reasons. First, the dating service was
not an ‘information content provider’ for the profiles on its website. Although the website
required users to complete detailed questionnaires ..., ‘no profile ha[d] any content until¹¹
a user actively create[d] it.’ . . . Second, even if the dating service could be considered

⁶ 489 F.3d at 929-930.
⁷ 489 F.3d at 925.
⁸ Id. at 926.
⁹ Id. at 929.
¹⁰ Id.
¹¹ The en banc decision, discussed below, stated that, in Carafano, “[w]e correctly held that the
website was immune, but incorrectly suggested that it could never be liable because ‘no [dating]
(continued...)

a content provider for publishing its customers’ profiles, it was exempt from liability
because it did not ‘create[ ] or develop[ ] the particular information at issue.’”¹² After
providing this summary of Carafano, Judge Kozinski explained:
Carafano differs from our case in at least one significant respect: The prankster in
Carafano provided information that was not solicited by the operator of the website.
The website sought information about the individual posting the information, not
about unwitting third parties. . . . While Carafano is written in broad terms, it must
be read in light of its facts. Carafano provided CDA immunity for information posted
by a third party that was not, in any sense, created or developed by the website¹³
operator — indeed, that was provided despite the website’s rules and policies.
Reinhardt Opinion
In the second opinion in Roommates.com, Judge Stephen Reinhardt joined Judge
Kozinski’s opinion for the court, but dissented with respect to Kozinski’s finding that
Roommate was immune from liability for the third charge against it — posting members’
“Additional Comments.” Judge Reinhardt’s difference of opinion stemmed from his
differing interpretation of the facts of the case, as he found “objective and subjective
evidence that Roommate solicits users to set forth discriminatory requirements in the
‘Additional Comments.’”¹⁴
Ikuta Opinion
In the third opinion in Roommates.com, Judge Sandra S. Ikuta concurred with Judge
Kozinski’s opinion for the court that Roommate was not immune from liability for the
first charge against it, and was immune from liability for the third charge against it, but,
unlike Judges Kozinski and Reinhardt, Judge Ikuta believed that Roommate was also
immune from liability for the second charge against it, which, again, was posting and
distributing members’ profiles. She reached this conclusion because she disagreed with
Judge Kozinski that Carafano was distinguishable from Roommates.com. Carafano
controlled this case, she wrote, because it “held that a website operator does not become
an information content provider by soliciting a particular type of information or by

¹¹ (...continued)
profile has any content until a user actively creates it.’ As we explain above, even if the data are
supplied by third parties, a website operator may still contribute to the content’s illegality and
thus be liable as a developer.” Slip op. at 3468 (citations omitted).
¹² 489 F.3d at 927-928. The distinction between these two reasons for exempting the dating
service is subtle. As Carafano itself put it, “even assuming Matchmaker could be considered an
information content provider, the statute precludes treatment as a publisher or speaker for ‘any
information provided by another information content provider.’ 47 U.S.C. § 230(c)(1) (emphasis
added [by the court]).” 339 F.3d at 1125. In other words, even if “[t]he fact that some of the
content was formulated in response to Matchmaker’s questionnaire” (id. at 1124) is considered
sufficient to make Matchmaker an information content provider, the information that it provided
was furnished by others.
¹³ 489 F.3d at 928.
¹⁴ Id. at 933.

selecting, editing, or republishing that information.”¹⁵ As Carafano held that 47 U.S.C.
§ 230(c) protects information that is solicited, it was immaterial that, as Judge Kozinski
noted, the customer in Carafano but not in Roommates.com had provided information that
the website had not solicited.
The En Banc Decision
The en banc Ninth Circuit opinion was written by Judge Kozinski and ruled in the
same way that the panel decision had with respect to Roommate’s three alleged violations
of the FHA, finding that it was immune only with respect to the third. The en banc
decision was 8 to 3, with the three dissenters joining in an opinion by Judge McKeown.
With respect to Roommate’s first and second alleged violations of the FHA (as listed on
page 2 in the PDF and print versions of this report), Judge Kozinski wrote for the
majority:
The CDA does not grant immunity for inducing third parties to express illegal
preferences. Roommate’s own acts — posting the questionnaire and requiring
answers to it — are entirely its doing and thus section 230 of the CDA does not apply¹⁶
to them. Roommate is entitled to no immunity.
With respect to Roommate’s third alleged violation of the FHA, Judge Kozinski
wrote:
Roommate publishes these comments as written. It does not provide any specific
guidance as to what the essay should contain, nor does it urge subscribers to input
discriminatory preferences. Roommate is not responsible, in whole or in part, for the
development of this content, which comes entirely from subscribers and is passively
displayed by Roommate. Without reviewing every essay, Roommate would have no
way to distinguish unlawful discriminatory preferences from perfectly legitimate
statements. . . . This is precisely the kind of situation for which section 230 was¹⁷
designed to provide immunity.
As he had done in his decision for the three-judge panel, Judge Kozinski remanded
the case to the district court “to determine . . . whether the alleged actions for which
Roommate is not immune violate the Fair Housing Act, 42 U.S.C. § 3604(c).”¹⁸
Effect of the Decision
A debate has arisen over how far-reaching the decision in Roommates.com will be
— specifically, whether it will preclude § 230(c) immunity to search engines such as
Google. The dissent in the en banc decision wrote:
The consequences of the majority’s interpretation are far-reaching. Its position will
chill speech on the Internet and impede “the continued development of the Internet

¹⁵ Id.
¹⁶ Slip. op. at 3457.
¹⁷ Id. at 3472.
¹⁸ Id. at 3475.

and other interactive computer services and other interactive media.” § 230(b)(1). To
the extent the majority strips immunity because of sorting, channeling, and¹⁹
categorizing functions, it guts the heart of § 230(c)(1) immunity.
The majority opinion in the en banc decision stated:
Roommate’s search function is . . . designed to steer users based on discriminatory
criteria. Roommate’s search engine thus differs materially from generic search
engines such as Google, Yahoo! and MSN Live Search. . . . [O]rdinary search engines²⁰
do not use unlawful criteria to limit the scope of searches conducted on them. . . .
The dissent, however, warned that Google might be in danger because “it ranks
search results, provides prompts beyond what the user enters, and answers questions.”²¹
One commentator wrote, “The opinion suggests that ‘neutral tools’ won’t be liable, but
all search engines tweak their results to some extent — there is no such thing as a neutral²²
search engine. She added, “Roommate needs to be limited to its facts.”
Another commentator who was concerned by the decision wrote:
If the Supreme Court lets the decision stand, I predict that it will significantly increase
litigation and chill Internet activity (e.g., sites like Roommates will be much less
efficient as prompts become bulletin boards). The reason I’m skeptical is that
litigation if often done in bad faith. As any real litigator will tell you, the point of
litigation isn’t necessarily to vindicate a right, but to harass an opponent with
discovery, document productions, and other expensive tactics. So long as a claim is
plausible, you can inflict real damage (and maybe get a favorable settlement) even if
you think you will ultimately lose. The beauty of broad, bright-line immunity under
Section 230 is that it allows parties to end this type of litigation quickly. If Google or
Craigslist gets sued for content its users create, then the companies can immediately
file a summary judgment motion (or a motion to dismiss) and end the case before
discovery begins. If that line becomes less bright, then it’s harder to shut down²³
frivolous (or at least losing) litigation early.
Finally, another commentator was less concerned:
If other sites . . . 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. . . . This is not a substantial retrenchment of the
preexisting law under 47 U.S.C. § 230, which offers a great deal of immunity for those²⁴
Internet outlets that merely pass along others’ speech.

¹⁹ Id. at 3499.
²⁰ Id. at 3461.
²¹ Id. at 3490.
²² [http://scrawford.net/blog/more-on-section-230/1144/]. The majority opinion’s “neutral tools”
comment appears at 3464 and the dissent’s response appears at 3490.
²³ [http://obsidianwings.blogs.com/obsidian_wings/2008/04/cert-the-9th-ci.html#more].
²⁴ [http://volokh.com/archives/archive_2007_05_13-2007_05_19.shtml#1179255772].