Usefulness of Search Threatened by 9th Circuit Ruling, Groups Say
It would be harder to find cool stuff online under a ruling limiting the scope of section 230 immunity under the Communications Decency Act, several major Internet companies, newspaper chains and trade associations told the 9th Circuit Court of Appeals in a friend of the court brief. The full court agreed to rehear the appeal after a divided panel said Roommate.com was an “information content provider” under the CDA for requiring users to fill out Roommate.com-designed questionnaires - forfeiting its immunity regarding users’ stated roommate preferences that violated fair-housing laws (WID Oct 16 p7).
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The brief is signed by AOL, eBay, Facebook, Google, Yahoo, InterActiveCorp, Microsoft, the New York Times Co., Tribune Co., Center for Democracy and Technology, TechNet, Association for Competitive Technology, NetChoice, and U.S. Internet Service Provider Association among others. Several had signed a brief when Fair Housing Council v. Roommates.com was first heard. They said in the new papers that they would raise issues specific to the split panel ruling. Another group asked for a full court rehearing this summer (WID July 17 p7).
Left alone, the panel decision would “turn Section 230(c)(1) on its head, relegating it to protect only relatively simple, rudimentary types of online services while exposing to potentially crushing liability the sorts of robust, innovative services that Congress wanted to encourage” through the CDA, the brief said. The groups also warned against accepting a new proposal from the Fair Housing Council of San Fernando Valley: To read the CDA provision as a “definitional clause” that doesn’t actually shield interactive service providers from liability for users’ behavior, based on nonbinding comments by the 7th Circuit in 2003’s Doe v. GTE.
Roommate.com was not a “creator” of an “additional layer of content” through its questionnaire, as alleged by the panel, the brief said. Rather, the site helps “winnow what user-originated information is presented to other users based on their own expressed preferences.” To punish such an activity would be to say that search engines are legally responsible for all content in search results. “Categorizing” user content similarly can’t be grounds for liability, as the panel suggested, because that would make eBay and Yahoo responsible for users’ auction listings and bulletin board posts, the groups said. “Search features, structured profiles, and similar tools are precisely the types of services Congress meant to encourage.” A different panel of the 9th Circuit concluded the same thing in the Carafano case, involving a dating site, the groups said.