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Fair Housing Council of San Fernando Valley, et al. v. Roommates.com LLC

CDA Does Not Immunize Roommates.com From Selective Distribution Of User Profiles

A divided three judge panel of the Ninth Circuit limited the immunity afforded by the Communications Decency Act (“CDA”), 47 U.S.C. section 230, for website operators involved in the publication and distribution of the responses to questionnaires completed by third parties concerning their roommate preferences.

The Panel unanimously held that the CDA did not immunize defendant Roommates.com from potential liability for drafting and posting questionnaires that sought information from those using the site about their roommate preferences.  These questionnaires, among other things, sought information about the preferred sexual orientation of the prospective roommate, and were used to create member profiles.  The Panel held that the CDA did not immunize Roommates.com from potential liability under the Fair Housing Act (“FHA”) for requiring members to answer questions that potentially enabled other members to discriminate for or against them.

By a vote of 2 to 1, the Panel further held that the CDA did not immunize Roommates.com from potential liability under the FHA for publishing and distributing member profiles created in response to Roommates.com’s questionnaires.  Roommates.com used the content of a user’s responses to its questionnaires to determine who among its members should receive notice that they were seeking a roommate, and/or be permitted to view that user’s profile.  For example, an individual with children was not shown a listing for an apartment occupied by an individual seeking a roommate without children.  The court held that by categorizing, channeling and limiting the distribution of user profiles, Roommates.com was sufficiently involved in the creation of the distributed information to lose the immunity afforded by the CDA to interactive service providers who make available content drawn by third parties. As a result, the Ninth Circuit allowed plaintiffs to proceed with claims that by such conduct, Roommates.com violated the FHA.

Finally, by a vote of 2 to 1, the Court held that the CDA did immunize Roommates.com from potential FHA liability arising out of its publication of users’ responses to Roommates.com’s requests for “Additional comments” concerning their roommate preferences.  In this section of its questionnaire, Roommates.com “strongly recommend[ed the user] tak[e] a moment to personalize your profile by writing a paragraph or two describing yourself and what you are looking for in a roommate.”  This question produced the most provocative – and potentially discriminatory - responses found in user profiles.  The court held that the responses to this question constituted content created by third parties within the meaning of the CDA.  As a result, held the Court, by application of the CDA, Roommates.com could not be held liable for publishing these responses on its website.

User Profiles

Roommates.com operates a website that assists individuals in locating roommates.  To use this service, individuals must create a user profile by responding to various questions posed by Roommates.com.  For most of these questions, the user must select his answer from those made available by Roommates.com.  Among other things, users must state their age, sex and sexual orientation, and advise whether they live with or without children.

Users are also provided an opportunity to supply additional information about themselves in response to a query for “Additional comments.”  In this section of its questionnaires, Roommates.com “strongly recommend[ed the user] tak[e] a moment to personalize your profile by writing a paragraph or two describing yourself and what you are looking for in a roommate.”  Unlike the balance of its questionnaires, users here are permitted to draft their own responses, and submit any information about themselves they chose to supply.

Roommates.com assembles user profiles from the responses to its questionnaires, and distributes emails to users listing compatible members based on their stated preferences.  Thus, an individual seeking a roommate without children will not receive listings from individuals with children, and vice-versa.  Similarly, Roommates.com uses the information contained in the user’s profile to restrict those who can view it again to users with compatible preferences. 

While not entirely clear from the court’s decision, it appears that Roommates.com does not distribute the ‘Additional Comments’ essays prepared by its users via its email system.  This information, instead, is only made available to paying subscribers.

Claiming Roommates.com’s conduct violates the Fair Housing Act and various state statutes, the Fair Housing Councils of San Fernando Valley and San Diego commenced this suit.  Roommates.com moved by motion for summary judgment to dismiss, arguing it was immunized from liability by application of the Communications Decency Act.  The District Court held that the CDA immunized Roommates.com from the FHA claims.  On appeal, the Ninth Circuit reversed in part, holding that because of its involvement in the creation of the information in question, the CDA did not provide Roommates.com with immunity from all of the FHA claims at issue.

CDA Does Not Immunize Roommates.com From Potential FHA Liability Arising Out Of Questionnaires It Requires Users To Complete

The Ninth Circuit unanimously held that the CDA did not immunize Roommates.com from potential liability under the FHA for the questions posed in its ‘profile’ questionnaires, which individuals were required to answer to utilize the service.  Plaintiffs claimed that by requiring members to answer questions that potentially enabled other members to discriminate for or against them, Roommates.com had violated the FHA. 

Section 230 of the CDA provides that “no provider … of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”  According to the Ninth Circuit, “the touchstone of section 230(c ) is that providers of interactive computer services are immune from liability for content created by third parties.” 

Because Roommates.com drafted these questionnaires, they do not constitute “content created by third parties,” and accordingly the CDA does not immunize Roommates.com from potential FHA liability arising therefrom.  The court accordingly denied this branch of defendant’s motion for summary judgment.

CDA Does Not Immunize Roommates.com From Potential FHA Liability Arising Out Of Selective Publication And Distribution Of User Profiles

 By a vote of 2 to 1, the Ninth Circuit also held that the CDA did not immunize Roommates.com from potential liability arising from its determination to restrict the information available to those seeking a roommate to individuals with compatible preferences.

By reviewing the profiles created by user responses to its questionnaires, Roommates.com categorized and channeled members to those with compatible preferences.  This was done both in emails sent to members, alerting them to such listings, and by giving users access to the profiles of members with compatible preferences.  By this conduct, Roommates.com was sufficiently involved in the creation of this content to lose the immunity afforded by the CDA.  Said the Court:
Roommates … channels the information based on members’ answers to various questions, as well as the answers of other members.  Thus, Roommate allows members to search only the profiles of members with compatible preferences. … While Roommate provides a useful service, its search mechanism and email notification mean that it is neither a passive pass-through of information provided by others nor merely a facilitator of expression by individuals.  By categorizing, channeling and limiting the distribution of users’ profiles, roommate provides an additional layer of information that it is ‘responsible’ at least ‘in part’ for creating or developing.  Whether these actions ultimately violate the FHA is a question the district court must decide in the first instance.

In reaching this result, the court distinguished this case from Carafano v. Metrosplash.com, 339 F.3d 1119 (9th Cir.  2003).  There, the court held that the operator of a website was immunized by the CDA from liability for posting a false user profile authored by an anonymous individual.   This profile falsely stated that plaintiff, an actress,  was looking for a “one night stand” with a controlling man.  Unfortunately, it provided accurate contact information, resulting in her receipt of unwanted contacts.  The court distinguished Carafano because the “prankster in Carafano provided information that was not solicited by the operator of the website” whereas in the case at bar, users were providing answers from among those drafted by Roommates.com, in response to questions Roommates.com posed, and required them to answer to obtain access to its site.
CDA Does Immunize Roommates.com From Liability For Users’ Responses To Request For ‘Additional Comments’

Finally, by a vote of 2 to 1, the Panel held Roommates.com immune from claims arising out of its publication of user responses to its request for “Additional Comments” concerning their roommate preferences.  The Court concluded that Roommates was not involved in the creation of this content, and the CDA accordingly protected it from liability arising out of its publication of this information on its website.  Said the Court:

We conclude that Roommate’s involvement is insufficient to make it a content provider of these comments.  Roommate’s open-ended question suggests no particular information that is to be provided by members; Roommate certainly does not prompt, encourage or solicit any of the inflammatory information provided by some of its members.  Nor does roommate use the information in the “additional comments’ section to limit or channel access to listings 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. 

Gripe Sites Operators Who Publish The Complaints Of Others May Face Potential Exposure 

Perhaps the most interesting portion of the court’s decision is its suggestion that the CDA may not immunize those who operate complaint or gripe sites that collect and publish the complaints of others, from potential liability therefore.  Said the Court:

We are not convinced that Carafano would control in a situation where defamatory private or otherwise tortuous or unlawful information was provided by users in direct response to questions and prompts from the operator of the website.

Imagine, for example, www.harrassthem.com with the slogan “Don’t Get Mad, Get Even.”  A visitor to this website would be encouraged to provide private, sensitive and/or defamatory information about others – all to be posted online for a fee.  To post the information, the individual would be invited to answer questions about the target’s name, addresses, phone numbers, social security number, credit cards, bank accounts, mothers’ maiden name, sexual orientation, drinking habits and the like.  IN addition, the website would encourage the poster to provide dirt on the victim, with instructions that the information need not be confirmed, but could be based on rumor, conjecture or fabrication.

It is not clear to us that the operator of this hypothetical website would be protected by the logic of Carafano.  The date match website in Carafano had no involvement in the creation and development of the defamatory and private information; the hypothetical operator of harrassthem.com would.  By providing a forum designed to publish sensitive and defamatory information, and suggesting the type of information that might be disclosed to best harass and endanger the targets, this website operator might well be held responsible for creating and developing the tortuous information.  Carafano did not consider whether the CDA protected such websites, and we do not read the opinion as granting CDA immunity to those who actively encourage, solicit and profit from the tortuous and unlawful communications of others.