Order Code RS22668
May 30, 2007
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. Roommate.com, No. 04-56916
(9th Cir., May 15, 2007), 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 service provider, such
as AOL, or a website that allows others to post messages.1
On May 15, 2007, 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 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 Ninth Circuit 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.
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.”

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computer service shall be treated as the publisher or speaker of any information provided
by another information content provider.”2
The defendant in this case, Roommate, is a website that enables people to “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.”
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).3 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.
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
2 “One of Congress’s goals in adopting this provision was to encourage ‘the unfettered and
unregulated development of free speech on the Internet.’” Roommate.com, quoting Batzel v.
Smith
, 333 F.3d 1018, 1027 (9th Cir. 2003).
3 Even though the Fair Housing 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 may include roommate
situations. Specifically, the Fair Housing Act 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).

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part, for the creation or development of information provided through the Internet.’ 47
U.S.C. § 230(f)(3) (emphasis added [by Judge Kozinski]).”
With respect to the three alleged violations of the Fair Housing Act 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
for 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’ at
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.” 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 Fair Housing Act, 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 Roommate.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 until
a user actively create[d] it.’ ... Second, even if the dating service could be considered 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.’”4 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 website
operator — indeed, that was provided despite the website’s rules and policies.
Reinhardt Opinion
In the second opinion in Roommate.com, Judge Stephen Reinhardt joined Judge
Kozinski’s opinion for the court, but dissented with respect to Kozinski’s finding that
4 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.

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Roommate was immune from liability for the third charge against it — posting members’
“Additional Comments.” Judge Reinhardt’s difference of opinion stemmed from his
different 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.’”
Ikuta Opinion
In the third opinion in Roommate.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 Roommate.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 selecting,
editing, or republishing that information.” 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 Roommate.com had provided information that the website
had not solicited. Judge Ikuta concluded:
In sum, our binding precedent has already addressed the question when a website
operator has jointly created and developed content so as to become an “information
content provider.” Unless a website operator directly provides “the essential published
content,” Carafano, 339 F.3d at 1124, it is not an “information content provider.” The
result is robust immunity under section 230(c).5
Commentary On the Decision
As the fact that the three-judge panel in Roommates.com issued three separate
opinions appears to indicate, this case raises complex and important questions concerning
freedom of speech on the Internet. Legal scholars have weighed in on the decision, and
this report will quote from the comments of three of them. Law professor Eric Goldman
found Roommates.com troubling:
With 3 largely inconsistent opinions from a 3-judge panel, and a lead opinion that
significantly narrows a fairly clear and relatively on-point Ninth Circuit precedent
(Carafano), this case seems ripe for an en banc rehearing [a rehearing by all the judges
of the Ninth Circuit]. I could even see this case going before the Supreme Court
(especially because it conflicts with so many other precedents . . . . Meanwhile, if the
Ninth Circuit doesn’t correct this opinion, and fast, I predict the following:
1) Websites will shy away from gathering structured data [such as data derived from
questionnaires supplied by websites] from users. This is silly, of course, because
structured data can be more useful for users, but this ruling makes structured data
much more risky.
5 Judge Ikuta’s final sentence alludes to a comment in Carafano (that Judge Kozinski quoted in
Roommates.com) that “reviewing courts have treated § 230(c) immunity as quite robust.”
Carafano, 339 F.3d at 1123.

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2) Craigslist will lose its very similar case in the Seventh Circuit.6 The Seventh Circuit
already has some bad 230 dicta in Doe v. GTE, and this opinion will give the Seventh
Circuit judges all the ammo they need to hold Craigslist liable.
Professor Goldman added that the decision can even be read to mean “that any time
a website reconstructs user data through its search engine, it loses [section] 230
[protection]” and, therefore, “that Google and other search engines have no 230 protection
for their search results.”7
Attorney Laura Quilter also disagreed with the decision, but she was not as alarmed
by it as Professor Goldman was, because she believed that it would merely require Internet
service providers to inform their customers of relevant law, such as the anti-discrimination
provisions of the Fair Housing Act:
[T]he decision’s major point of distinction between Carafano and this case was that
the ISP established policies. So establishing policies that reiterate the law will be key
for ISPs in the wake of this decision. Kozinski stressed that the service in Carafano
did not solicit the problematic information and in fact expressly forbade some aspects
of it. So, under this decision, establishing policies that reiterate the law will go some
way toward protecting an ISP. While this isn’t the worst outcome for a speech-related
law, it seems (to me) to be a waste of time, and I’d point out that it burdens ISPs with
educating their users about the law. This sort of burden is, to my mind, inconsistent
with notions of ISPs as “utilities”, and also inconsistent with the broad, unfettered
access to communications that the First Amendment contemplates.8
Finally, law professor Eugene Volokh took essentially the same view as Ms. Quilter,
but he apparently did not believe that ISPs would have to educate their users about the law,
but believed rather that ISPs would merely have to refrain from asking for information
whose publication would violate the law. This is, presumably, because, if an ISP did not
ask for such information, but a user provided it on his or her own, then, even under Judge
Kozinski’s reading of Carafano, the ISP would be immune from liability for posting it.
Professor Volokh wrote:
If other sites (for instance, Craigslist, which is the subject of a similar lawsuit) 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 to those Internet outlets that
merely pass along others’ speech. But it does suggest that when the outlets try to
channel the speech in likely illegal directions, they may be liable for the result of that
channeling.9
6 The Craigslist lawsuit was dismissed by the district court and is on appeal in the Seventh
Circuit. See [http://volokh.com/archives/archive_2006_02_05-2006_02_11.shtml#1139541183].
7 [http://blog.ericgoldman.org/archives/2007/05/ninth_circuit_s.htm].
8 [http://lquilter.net/blog/archives/2007/05/15/roommatecom-reversed].
9 [http://volokh.com/archives/archive_2007_05_13-2007_05_19.shtml#1179255772].