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9th Circuit says CDA doesn't shield

By Courtney Holliday
First Amendment Center Online intern

A federal appeals court has found that a roommate-matching Web site is not merely providing “interactive computer services” and can be sued under state and federal fair-housing laws.

The 9th U.S. Circuit Court of Appeals ruled on May 15 that LLC, which operates a Web site at, is a content provider and as such is not protected by a provision of the Communications Decency Act.

The three-judge panel held that because of the Web site’s questionnaire and search option, is “responsible at least in part for creating or developing” content.

To register on the Web site, required customers to complete a questionnaire with information concerning sex, age and number of children in the household. Users could select preferences and search for roommates who matched these criteria.

In 2006, the Fair Housing Councils of San Fernando Valley and San Diego sued in federal district court, alleging the site had violated the Fair Housing Act, which prohibits discrimination in housing. Because the questionnaire asks for demographic information, the groups alleged that the Web site posts material that could enable site users to discriminate against others.

The district court held that the Web site had immunity under Section 230 of the CDA, which allows legal protection for sites with "interactive computer services."

The CDA defines interactive computer service as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server.” Though interactive computer services have immunity under the CDA, Web sites lose immunity if they are also content providers. Because multiple people may use its site to search for roommates, is an interactive computer service. (The CDA protects the site from liability for speech or content that others post as long as it merely publishes the information.)

In their appeal of last year’s ruling, the fair-housing groups claimed that was a content provider. denied this claim, arguing that it merely facilitated communication based on customer-provided information. The 9th Circuit rejected this argument in Fair Housing Council of San Fernando Valley and Fair Housing Council of San Diego v.

Joseph Tomain, an attorney specializing in First Amendment and media law with Frost Brown Todd LLC, told the First Amendment Center that because interactive computer service providers have enjoyed broad protection under Section 230 of the CDA in the past, this decision was different from prior cases. While he acknowledged that the creation of the questionnaire was a key factor in the ruling, he said that the 9th Circuit’s assertion that the search option constituted “content” was a surprise.

“While finding the questionnaire as ‘content’ that destroys immunity is debatable, I think the court clearly went too far by finding that the searchability design destroyed immunity,” he said.

Tomain echoed some of the views that Judge Sandra Ikuta, who concurred in part, wrote in her opinion. Ikuta disagreed that the search option made a content provider.

“We have previously rejected expansive interpretations of this phrase and have explicitly held that a website operator does not become an information content provider by soliciting a particular type of information or by selecting, editing, or republishing such information,” she wrote in her concurrence.

Timothy Alger, attorney for, also found the panel’s “narrow reading” of current federal law to contradict the 9th Circuit’s past decisions. He told the San Francisco Chronicle that while denies violating fair-housing laws, he thought the 9th Circuit should have determined whether or not the First Amendment protected the site.

The First Amendment “protects speech by people merely exercising their right to choose those with whom they wish to live,” Alger was quoted as saying in a May 17 article.

The 9th Circuit remanded the case to district court to determine whether violations of other state laws or the Fair Housing Act had occurred.

Tomain said that although it is too early to know the implications of this decision, it is one to remember.

“People need to be aware of it and plan to respond to it if a judge or opposing counsel tries to use this decision to breach the immunity that interactive computer services are provided in the CDA,” he said.

Gary Rhoades, attorney for the Fair Housing Councils of San Fernando Valley and San Diego, told the Chronicle that roommate sites should not require customers to choose preferences and should inform them about fair-housing requirements.

“I’m sure this is going to give the many rental Web sites pause and make them [reconsider] the way they do business,” he said in the May 17 article.

Courtney Holliday is a junior majoring in economics and public policy at Vanderbilt University in Nashville.

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