Got a room?

I’m sure I’m not the only one who has been waiting for the result of the en banc rehearing of the Roommates.com case in the (US) 9th Circuit Court of Appeals (discussed on this blog here and here). Finally, the decision is here, and the PDF is available for download.

Recall that the case is between a fair housing organisation (seeking enforcement of equality legislation on discrimination in the rental sector) and a roommate-finding website (attempting to rely on the immunity-for-hosts provisions of US law). The first hearing in the 9th circuit led to a complicated split decision (PDF), where each judge (of three) made different findings – but the lead opinion (by now-Chief Judge Kozinski) is quite well known. The bit that got everyone hot under the collar was the idea that the website couldn’t rely on immunity for certain functions. So in particular, they could not be held liable for user comments posted in open fields (i.e. fill in your own stuff here) but they could be held liable (in theory; the actual substantive arguments are deferred until immunity is dealt with) for the way they collect, filter and display information based on answers to questions.

The law in question is ‘section 230 of the Communications Decency Act‘, which must hang on the wall of every website operator. For readers unfamiliar with it, go read the Wiki page which is a decent summary of what’s going on. In essence, it provides immunity against being treated as the publisher or speaker for legal purposes to operators of websites, service providers, etc. What’s unusual from many perspectives is that it is, in general, unconditional – i.e. it can’t be lost if you have ‘notice’ of a problem. So whereas in the case of copyright violations, there is an obligation to remove content notified as such, there is no such obligation for defamatory content, which is covered by section 230. Of course, the person who writes the defamatory content is still liable – but from the point of view of the Internet industries, that’s fine!

The court (with a slight tweaking that’s not all that relevant) upholds the original decision, 8-3. Kozinski again writes the opinion, joined by an odd mix of ‘liberal’ and ‘conservative’ judges including Reinhart, the Carter-appointed liberal figurehead if there is such a thing, who would have (in the original decision) found even more of the activities lacking in immunity than Kozinski did. What’s particular interesting is that he (Kozinski for the majority) goes into an unusual level of detail on the context of the statute (including the cases that predated it), looking at legislative history and context. He also advances some broad arguments on online and offline law, rebutted by a similarly lengthy dissent that is particularly exercised by this point. Kozinski makes some of the same jokes as he did first time out, including the lovely one about significant others and significant Others (see page 12 of the PDF). There is no doubt about the result, though : ‘Roommate is not being sued for removing some harmful messages while failing to remove others; instead, it is being sued for the predictable consequences of creating a website designed to solicit and enforce housing preferences that are alleged to be illegal’ and, later, ‘When Congress passed section 230 it didn’t intend to prevent the enforcement of all laws online; rather, it sought to encourage interactive computer services that provide users neutral tools to post content online to police that content without fear that through their “good samaritan . . . screening of offensive material,”, they would become liable for every single message posted by third parties on their website.’

The court reaffirms, though, that minor editorial work does not change user submissions into the host’s own content, and indeed the law has been a little unclear on this point to say the least. They also note that the language in their own Carafano v Metrosplash.com case (libel) was too broad. What’s also interesting is that in the view of the majority, there is no conflict between today’s decision and other circuits (see footnote 33 in particular, about the Craiglist case at the 7th Circuit). The popular view at the time of the first Roommate decision was that the 9th Circuit was out of step with the rest. I do wonder if, if that view prevails, there will be an attempt to bring the matter to the Supreme Court. Certainly, as media-related cases go, it would be more fun than FCC v Fox…

Other highlights include
- a cheeky use of the ‘we must not forget’ trope (the history of which is discussed in typical style by Eoin) : “We must keep firmly in mind that this is an immunity statute we are expounding, a provision enacted to protect websites against the evil of liability for failure to remove offensive content” (in the context of the unsuccessful complaint about the ‘additional comments’ functions);
- some obiter but properly-argued comments about search engines having nothing to worry about (and the dissent saying the opposite);
- a reminder that this is not a First Amendment case as it wasn’t pleaded. That’s particularly interesting – a lot of general discussion about the advantages of servers in the US (a topic to which I’ll return soon, I promise) is in fact more relevant to section 230 (a law that Congress did make) than to Congress shall make no law.

Anyway, I’d be interested in hearing your thoughts, so the floor is yours. I’ll update with comments from other blogs as they come in…although I’m very surprised at how little there has been so far lots to look at now. Cyberlaw, judicial jokes and a potential bunfight – what’s not to like? ;)

Volokh | Online Liability Blog | Internet Cases | Susan Crawford | Eric Goldman | Wired | Info/Law | E-Commerce Law | Concurring Opinions (Daniel Solove writing) | Citizen Media Law Center (Sam Bayard writing) | David Weinberger | Convictions

Stupidly, a lot of the comments on those posts (though not the posts themselves) are of the nature of OMG you can’t pick your r00m8s?!?!! If they took ten seconds to read, they might find that that issue hasn’t been resolved yet, and this case at this stage is about liability in theory. Oh well.

One single comment

  1. [...] certainly cannot be the case that the First Amendment is actually dead – indeed, in the Roommates case (pdf) decided earlier the same week, he declined to take a First Amendment point not because [...]

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