Apr 152008

An important case recently came out of the Ninth Circuit Court of Appeals, an en banc panel reconsideration of an earlier appellate ruling that found the website Roommates.com potentially in violation of the Fair Housing Act, the act that generally forbids housing to be denied people based on “race, color, religion, sex, handicap, familial status, or national origin.”

Some, like Eugene Volokh see this decision as a fairly minor occasion. Others, like Eric Goldman and Susan Crawford, on the other hand, see it as a significant piece of jurisprudence related not to the Fair Housing Act, per se, but to 47 USC 230, a 1996 statute that provides fairly broad immunity for Internet sites for the content others put on it.

There’s always tension with any law that provides immunity. Bad acts may be occurring, and the wronged will want to be able to hold someone accountable. But free speech concerns should make us reluctant to shoot the messenger, as it were, by holding the Internet providers responsible for speech that was not their own. Perhaps such a policy may seem counter-intuitive for obvious, clearly wrongful content that may appear on a site. But the reality is that little is ever so clear cut, and if Internet providers were constantly being hauled into court to be held responsible for what others said, there would be significant consequences for free speech. For one, to hold an Internet provider accountable for any content appearing on their systems would essentially force the provider to ratify whatever it was, regardless of what the provider itself really thought about it. It would also deprive providers of their own ability to maintain their own speech on the Internet if the threat of litigation over someone else’s ended up forcing them to close their site down. And it would further deprive those who depend on other providers’ forums for their own Internet speech their outlets for it as well.

The ever-evolving question then is what types of Internet providers are entitled to immunity and under what circumstances. Providers can range from large scale Internet forums to private blogs with open comments. In theory the immunity law applies to them all and always (well, except involving copyright infringement issues, which is subject to a different set of laws), but decisions like this one out of the Ninth Circuit are challenging that notion. What the court appears to be saying is that it’s one thing to force a website to be held liable for the content a third party has placed on it entirely on that third party’s own volition, and we wouldn’t do that. But it’s another thing to force a website to be liable for content it has essentially induced to be there.

On first blush such a distinction may seem reasonable, except it’s very difficult, if not impossible, to draw the line between passive hosting and active eliciting in any sort of clear and consistent way. After all, any provider inherently induces content just by making itself open and available to it. In this case, however, Judge Kozinski seemed to think it was obvious to see the kind of inducement that would run afoul of the law, the way Roommates.com asked posters to enter information that would potentially violate the Fair Housing Act, by indicating preference for race, sex, etc. and then allowing others to search its listings by these terms, interpreting this structure as somehow actively abetting, or even perpetrating, the discrimination itself. Yet this theory of abetment turned on very technical details about the site’s search architecture. Because it had separate fields for these preferences to be entered it was culpable, but if it had simply left similar terms floating around within the plain text of its users’ posts, it would not have been.

But what seems obvious on retrospect is rarely equally obvious at the outset, and all that seems clear from this decision is that Internet providers’ potential immunity is suddenly much less assured. Because even if this decision can be isolated to its facts, meaning that it would only bear on another online housing site with a largely similar model as Roommates.com’s, it also means that, despite the language and intent of 47 USC 230, Internet providers can still be subject to such retrospective scrutiny so as to effectively eviscerate any protection the immunity statute might have afforded — since even if the provider might later be exonerated, it will still be subject to lengthy trials and in-depth factual analysis before that could happen.

I therefore join with those expressing concern about this decision. We can hope it’s of minor impact, but overall the Ninth Circuit’s unwillingness to see Section 230 as a solid shield to providers means none is really available to them at all.

 Posted by at 9:20 am

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