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'Gay or straight?' ruling looks bad for all US social networking sites

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Analysis The world just got a little scarier for social network providers.

The Ninth Circuit Court of Appeals just determined that Roommates.com - a networking site for people looking for, well, roommates - did not deserve immunity under Section 230 of the US Communications Decency Act for information that users of the site provide on questionnaires during registration.

Section 230 of the CDA gives providers of an interactive computer service, such as a website, immunity from lawsuits relating to the publication of information on the site by a person other than the site's provider. Thus, information posted to a blog's comments or on an online forum won't put the site provider on the hook for damages if the publication of the content happens to break the law someplace.

Someone who, in whole or in part, creates or develops the published information, however, qualifies as a "content provider," and falls outside the bounds of the immunity. The Ninth Circuit panel determined that Roommates.com, by filtering the kind of information that visitors to the site would see, had developed the information provided, and could not claim immunity for the publication of the information.

This could have wide-ranging repercussions, and knock scores of websites outside the safe, comfortable realm of Section 230 immunity that they've come to enjoy. This could then make them liable for claims relating to third-party publication, such as the posting of defamatory information on their website.

The current suit, brought by the Fair Housing Councils of San Fernando Valley and San Diego, alleged that Roommates.com violated the Fair Housing Act by encouraging discrimination in the selection of roommates. The lower court initially determined that Roommates.com qualified for the Section 230 immunity and entered judgment for the website.

The Councils appealed, and a divided Ninth Circuit panel ruled that the immunity actually did not apply. Because of how the site operated, the panel concluded, the information was not totally provided by someone other than the website, thus the lower court now has to conduct a trial over whether the information on the site does in fact violate the Fair Housing Act.

Roommates.com requires people looking for roommates to fill out forms with personal information about themselves, as well as their preferences for their roommates. Through drop-down menus, registrants can state a desire to live with only straight males with no children, or with only lesbians with children, or several other similar combinations. Registrants can also fill in a free-text "Additional Comments" section, which many use to further refine their roommate preferences. User profiles are then published and distributed using the above information.

What raised the ire of the court was the fact that Roommates.com channels visitors to certain profiles based on the information provided during registration. For example, a straight male seeking a room could only search profiles of those users who had indicated during registration that they would live with a straight male.

By categorizing, channeling and limiting the availability of profile information, the court argued, Roommates.com had added an additional layer of information that made them a content provider that could not claim the Section 230 immunity.

But where would this test end? Would Google's search results, which channel information to users based on queries they provide at Google's prompting, contain this additional layer of information? Would a search on MySpace for single females in New York have it? If so, Google could become liable for, um, every piece of defamatory content on the Internet, and MySpace could find itself in hot water over defamatory comments and/or sexual predators lurking on the site.

MySpace has already used Section 230 to shield itself from liability for the sexual assault of a minor by a predator who used the site to connect with his victim. This new decision - which applies to a different jurisdiction, but carries more precedential weight - throws that decision into question when the issue comes up again.

Plus, it could add more pressure on the site to release information that states want to use to investigate pedophiles. So far, MySpace has steadfastly refused to give up the data.

Of course, it's completely possible that the decision could be overturned before it comes to all that. Roommates.com could appeal to the Ninth Circuit to conduct an en banc review (that's fancy lawyer-talk for "a decision from the entire court, rather than just from a rinky-dink three-judge panel), and even if that fails, there's always the Supreme Court, although that's a long-shot.

But given that the panel's majority opinion was written by Judge Kozinski, the Ninth Circuit as a whole might view the situation a little differently, making Supreme Court review unnecessary. Judge Kozinski recently went on a tirade against blogs while participating in a discussion at the Santa Clara University School of Law where he called the darlings of Web 2.0 "hateful," "self-indulgent," and "annoying".

He may be right. But it does show that he has a certain attitude about Internet content that probably influenced the decision a wee bit. Once some new eyes read over the record of the case, look for the outcome to shift back in favor of website providers.

But in the meantime, also watch for the coming flood of social networking websuits. After this decision, it's bound to happen. ®

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