User Postings and the Law: A Question of Structure

A ruling by a federal court in a case involving an online roommate matching service will hamstring Web innovators, a civil liberties group argued this week in papers filed with the judicial panel.

In a "friend of the court" brief submitted Monday to the U.S. Court of Appeals in California, the Electronic Frontier Foundation (EFF) argued that "the ruling will inhibit technological developments because providers and users of interactive computer services will be discouraged from investing in creating important Internet features if they face the constant threat of litigation for customizing and facilitating access to third-party content."

In its brief, the EFF called on the three-judge panel that handed down the decision to reconsider its action and have the case reheard before the full appeals court for the circuit, a procedure call "en banc."

Undermines Intent

The decision by the court undermines Congressional intentions to protect the middle men of information exchange on the Internet, according to one of the brief's authors, EFF Staff Attorney Matthew J. Zimmerman.

Those intermediaries are protected by section 230 of the Communications Decency Act (CDA) of 1996, he contends. In passing that section of the law, he told the E-Commerce Times, Congress wanted "to make sure that intermediaries are not responsible for the content of the users of their services."

"That includes," he continued, "ISPs [Internet Service Providers], Web site operators -- anyone providing a forum for speech or materials that third parties are providing."

Housing Laws Broken

In the case, the fair housing councils of San Diego and California's San Fernando Valley accuse Roommate.com of violating federal and state housing laws with some of the services it provides.

In its defense, Roommate argues the CDA protects it from such lawsuits. The appeals court, though, disagreed.

In its decision, the court ruled that the immunity the CDA granted to intermediaries had limits.

"While Roommate provides a useful service," the judges wrote, "it's search mechanism and e-mail notifications mean that it is neither a passive pass-through of information provided by others nor merely a facilitator of expression by individuals."

"By categorizing, channeling and limiting the distribution of users' profiles," they continued, "Roommate provides an additional layer of information that it is 'responsible' at least 'in part' for creating or developing."

The court reasoned that because Roommate is responsible for some portion of the information at its site, it is an information content provider, as defined by the CDA, and not protected by the immunity provisions of that law.

Sidestepping the Merits

"The question is under what circumstances are Web sites entitled to immunity from any lawsuit, so they don't have to defend the lawsuit on the merits," Navid Soleymani, an attorney with Proskauer Roe in Los Angles told the E-Commerce Times.

"The court said that because of the extent to which Roomates is involved in creating material through its use of drop down menus and e-mailing, then it no longer deserves the immunity protection under the federal law," he added.

Although section 230 of the CDA provides broad immunity for Web site operators, that immunity isn't unlimited, maintained Eugene Volokh, Gary T. Schwartz Professor of Law at the UCLA School of Law in Los Angeles.

"The question is, how do you treat things where somebody invites commentary from third parties but shapes that commentary in certain ways?" he told the E-Commerce Times.

'Reputational Accountability'

Consumers should be concerned about the court's decision because it says that structured and unstructured data should be treated differently under federal law, according to Eric Goldman, director of the High Tech Law Institute at the Santa Clara University School of Law in Santa Clara, Calif.

Goldman, who helped the EFF prepare its brief, maintained that unstructured data -- readers' comments about a book, for instance, or comments on a blog posting -- would receive CDA protections, he maintained, while structured data -- aggregate user ratings, for example -- would not.

"If you think about the market mechanism for holding companies accountable in the marketplace, we need consumers to speak up and share their views about those companies to make that mechanism work, to create that reputational accountability," he told the E-Commerce Times.

"Unstructured consumer opinions are helpful because we get consumers' views," he said, "but structured consumer opinions are even more helpful.

"What this opinion does is discourage the collection of consumer opinion in a way that will potentially undermine the ability of online entities to create that kind of reputational accountability," he asserted.

Currently the court is considering the the en banc request and no date has been set for action on the matter.