Fair Housing Council of San Fernando v. Roommates.com

Citation: Fair Housing Council of San Fernando Valley v. Roommates.com, L.L.C., 489 F.3d 921 (9th Cir. 2007).

Factual Background
Roommate.com, L.L.C. operates a website whereby users can create profiles consisting of information about themselves and their roommate preferences. These profiles are created in two parts; the first a series of answers to an online questionnaire provided by Roommates.com, and the second an optional, but "strongly recommend[ed]", open-ended prompt to provide additional information. The website allows users to browse and search lists of compatible roommates, send messages to other users, and sign up for email notifications regarding potential roommates.

The Fair Housing Councils of San Fernando Valley and San Diego allege that Roommate.com violates the Fair Housing Act (FHA) by (1) posting the questionnaires on its [website]] and requiring users who want to use the site's services to fill them out, (2) posting and distributing profiles in emails, and (3) posting information provided on the "Additional Information" form. The Councils argue that the questionnaire causes users to make a "statement . . . with respect to the sale or rental of a dwelling that indicates . . . an intention to make [a] preference, limitation or discrimination" in violation of the FHA.

District Court Decision
The District Court held that the Communications Decency Act barred the FHA claim and granted in part Roommate.com's summary judgment motion and declined to exercise supplemental jurisdiction over the state-law claims presented.

Appellate Court Decision
The Appellate Court found Roommate.com to be an information content provider with respect to the information provided by users in answering the questionnaire but not with respect to the "Additional Comments" and remanded for a determination of whether the information in the questionnaire violated the FHA.

It was undisputed that Roommate.com is the provider of an interactive computer service and is therefore immune from suit for publishing information provided by its members but not for publishing information as a content provider where they are responsible, in whole or in part, for the creation or development of the information. Roommate.com argued that Carafano already decided this issue and that a website would not be considered an information content provider when there was no publishing of any content until a user "actively create[d] it". The Court distinguished that case because while the website in Carafano prompted information from the user, the questions were not aimed at soliciting information about third parties (the misconduct at issue in the case). Here, potentially tortious information was provided as a direct response to Roommate.com's questionnaire. The Appellate Court also found Roommate.com to be more than a passive participant in publishing because they used the answers to their questionnaire to channel the information to other users and republish profiles through email notifications. This "additional layer of information" created a responsibility for "creating or developing" under the Communications Decency Act. The Court did, however, find Roommate.com protected by the CDA for publishing content provided in the "Additional Comments" form because this information was not used in any search features; their "involvement [was] insufficient to make it a content provider".