Cubby, Inc. v. CompuServe, Inc., Stratton Oakmont, Inc

is a far cry from web technology in the mid-1990s. Nonetheless, the basic message from
Congress has retained its traction, and there should be a high bar to liability for organizing and
searching third-party information. The bipartisan view in Congress was that the Internet, as a
new form of communication, should not be impeded by the transference of regulations and
principles developed from traditional modes of communication.
In the end, the majority offers interactive computer service providers no bright lines and little
comfort in finding a home within § 230(c)(1). I respectfully part company with the majority as to
Part 2 of the opinion because the majority has misconstrued the statutory protection under the
CDA for Roommate's publishing and sorting of user profiles. The plain language and structure of
the CDA unambiguously demonstrate that Congress intended these activities--the collection,
organizing, analyzing, searching, and transmitting of third-party content--to be beyond the scope
of traditional publisher liability. The majority's decision, which sets us apart from five circuits,
contravenes congressional intent and violates the spirit and serendipity of the Internet.
Specifically, the majority's analysis is flawed for three reasons: (1) the opinion conflates the
questions of liability under the FHA and immunity under the CDA; (2) the majority rewrites the
statute with its definition of "information content provider," labels the search function
"information development," and strips interactive service providers of immunity; and (3) the
majority's approach undermines the purpose of § 230(c)(1) and has far-reaching practical
consequences in the Internet world.
To begin, it is important to recognize what this appeal is not about. At this stage, there has
been no determination of liability under the FHA. In dissenting, I do not condone housing
discrimination; I simply underscore that the merits of the FHA claim are not before us.
The entire opinion links Roommate's ostensibly reprehensible conduct (and that of its users)
with an unprecedented interpretation of the CDA's immunity provision. The majority condemns
Roommate for soliciting illegal content, but there has been no determination that Roommate's
questions or standardized answers are illegal. Instead of foreshadowing a ruling on the FHA, the
opinion should be confined to the issue before us--application of § 230(c)(1) to Roommate. The
district court has not yet ruled on the merits of the FHA claim and neither should we.
Application of § 230(c)(1) to Roommate's Website
Because our focus is on the term "information content provider," and what it means to create
or develop information, it is worth detailing exactly how the website operates, what information
is at issue and who provides it.
To become a member of Roommates.com, a user must complete a personal profile by
selecting answers from dropdown menus or checking off boxes on the screen. The profile
includes "location" information; details about the residence, and the "rental details." The last
section of the profile is the "Household Description" section, which includes the total number of
occupants in the home, their age range, gender, occupation, level of cleanliness, whether they are
smokers, and whether children or pets are present.
The remaining sections of the registration process are completely optional; a user who skips
them has created a profile based on the information already provided. At his option, the user may
select an emoticon to describe the "household character," and may upload images of the room or
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