Feb 062012

While I was working on this post Eric Goldman beat me to the punch and posted something similar. But great minds and all that… Intermediary liability is also such a crucial issue related to the criminalization of online content I want to make sure plenty of discussion on it takes place here.

In addition to the First Amendment, in the US free speech on the Internet is also advanced by 47 U.S.C. Section 230, an important law that generally serves to immunize web hosts for liability in user generated content. (See Section 230(c)(1): “No provider . . . of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”). Note that this law doesn’t absolve the content of any intrinsic liability; it just means that the host can’t be held liable for it. Only the user who posted it can be.

This small rule has a big impact: if hosts could be held liable for everything their users’ posted, they would be forced to police and censor it. True, the effect of this immunity means that sometimes some vile content can make its way online and linger there, potentially harmfully. But it also means that by not forcing hosts to be censorious middlemen, they are not finding themselves tempted to kill innocuous, or even abjectly good, content. As a result all sorts of vibrant communities and useful information have been able to take root on the Web.

But for this immunity to really be meaningful, it’s not enough that it protect the host from a final award on damages. It’s extremely expensive to have to be dragged into court at all. If hosts legitimately fear needing to go through the judicial process to answer for users’ content, they may find it more worth their while to become censorious middlemen with respect to that content, in order to ensure they never need go down this road.

Which brings us to Fair Housing Council of San Fernando v. Roommates.com, both its seminal piece of Section 230 jurisprudence and its more recent epilogue, each part of the attempted civil prosecution of a web host for fair housing act violations.

Roommates.com is, as its name suggests, a website that helps people find compatible roommates. Compatibility, as the more recent decision discusses, may depend on factors (ie, race, religion, etc.) that might be discriminatory in other contexts, including other housing contexts such as the sale or rental of an entire dwelling. But, the recent decision reasons, while it makes sense to prohibit discrimination in providing possession of the entire structure, it does not make sense to prohibit discrimination when it comes to the sharing of its interior. Sharing one’s home is a profoundly intimate situation that the constitutional rights of free association leave to the complete discretion of its occupants. In other words, to the extent that Roommates.com users indicated such preferences, the indication of those preferences was perfectly legal.

The problem is, poor Roommates.com had to go through years of litigation to find that out. While generally speaking Section 230 is supposed to immunize a web host for liability in its users’ content, the earlier 9th Circuit decision, penned by the same Judge Kozinski who wrote this new one, had found that Section 230 did NOT apply to Roommates.com, at least insofar as it deliberately solicited allegedly discriminatory content. “[Roommates.com] is being sued for the predictable consequences of creating a website designed to solicit and enforce housing preferences that are alleged to be illegal.” [521 F.3d at 1170]

On the one hand the court tried to make the distinction that Roommates.com lost its statutory protection as an “interactive computer service provider” and instead became an un-immunized “information content provider” because of how, in eliciting this discriminatory content, the site was essentially putting words in users’ mouths and telling them what to say. Thus it should be responsible for the legal consequences of those words. But the court never would have cared if that speech had not appeared to be illegal. “A dating website that requires users to enter their sex, race, religion and marital status through drop-down menus, and that provides means for users to search along the same lines, retains its CDA immunity insofar as it does not contribute to any alleged illegality‚Ķ” [Id at 1169.]

But now, after years of litigation (the original decision dates from 2008!) we discover that Roommates.com was more like the dating site. It hadn’t required anyone to say anything illegal at all. Expressing discriminatory preferences in roommates was perfectly legal, and neither the users, nor Roommates.com, had any liability in doing so, either directly or vicariously. It turns out Roommates.com got dragged through the courts for nothing.

So what does this mean for future Section 230 jurisprudence?

In some ways, possibly very little. Despite the first Roommates.com decision that denied this particular web host immunity, most other web hosts have been able to avoid being construed the speakers of their users’ content. But not always, and not always at the motion to dismiss stage; it’s not unusual to find a site expensively dragged further into the trial before a court construes it eligible for the immunity.

But doing so does violence to the policy values behind Section 230, creating a chilling incentive for a host to become a censorious middleman. And as we see with Roommates.com, for no good reason. The earlier decision had used the specter of the content’s wrongness as a basis for denying the immunity, but it turns out that such basis was baseless. Roommates.com, an otherwise Section 230-eligible host, just needlessly shouldered a prosecution over the wrongfulness of user content that wasn’t actually wrongful.

This new decision should therefore help strengthen Section 230′s protections to keep other innocent hosts from avoiding a similar fate. For Section 230 to have any value in protecting hosts, its immunity must be absolute; whether or not we are going to deem a host an immunity-eligible service provider cannot depend on the legality of the underlying content it hosts. The ultimate exculpation of the second Roommates.com decision reminds us of how much it unjustifiably costs a host to have that alleged legality considered a factor in stripping it of its statutory immunity.

Edited last paragraph 5/18/2012.

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