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Two federal appeals courts may be marking the outer limits of legal protection from discrimination claims against Web sites that post discriminatory ads on listings to buy, sell or rent housing and find roommates. The 7th U.S. Circuit Court of Appeals on March 14 broke with five other circuits to withhold broad immunity from liability for the popular electronic flea market and housing bulletin board Craigslist. Although the court said Craigslist could not be held liable for the discriminatory rental ads posted by users, the law did not include broad-based immunity. This pulls back from the reach of five other circuits that have interpreted Section 230 of the Communications Decency Act of 1996, as providing wide immunity from liability for Web sites and forums that host illegal ads stating such things as “no minorities” or “no children.” 9th Circuit ponders case Meanwhile, a 9th Circuit 11-judge en banc panel is still pondering whether a roommate-matching Web site may be held liable if it violated California’s Fair Housing Act by going beyond simply posting user roommate requests. The site encouraged creation of personal profiles and disclosed roommate preferences based on age, sex and whether children would be in the home. The 9th Circuit was among the original five circuits that recognized broad immunity for Internet companies, but the three-judge circuit panel in Fair Housing Council of San Fernando Valley v. Roommates.com, No. 04-56916, denied immunity in 2007, leaving the issue an open question. At issue is determining the point at which a line can be drawn between companies that provide Internet service used by others to post discriminatory content, and when the companies alter content sufficiently to become akin to newspaper publishers who can be liable if they do not screen out discriminatory ads. The circuit decisions supporting broad immunity from liability for Internet service providers that post discriminatory material written by others includes Zeran v. America Online Inc., 129 F.3d 327 (4th Cir. 1997); Ben Ezra Weinstein & Co. v. America Online Inc., 206 F.3d 980 (10th Cir. 2000); Green v. America Online, 318 F.3d 465 (3rd Cir. 2003); Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003); and Universal Communications Systems Inc. v. Lycos Inc., 478 F.3d 413 (1st Cir. 2007). In the 7th Circuit, by withholding full immunity for Internet companies, Chief Judge Frank Easterbrook harked back to music-piracy cases. He said in the Craigslist case, “To appreciate the limited role of � 230(c)(1), remember that ‘information content providers’ may be liable for contributory infringement if their system is designed to help people steal music or other material in copyright.” Chicago Lawyers’ Committee for Civil Rights Under Law v. Craigslist Inc., 2008 WL 681168. “There is no immunity mentioned at all in the statute,” said Stephen Libowsky of Washington-based Howrey’s Chicago office who represented housing advocates in Craigslist. Libowsky said that whether the 7th Circuit’s decision to move away from other circuits without an outright split on immunity “is a sea change that would cause other circuits to re-examine their positions. Only time will tell.” An open question What Easterbrook did not make clear in the opinion is what happens if a Web site does something to change the contributor’s words � whether that act removes protection under Section 230 and opens it to liability, Libowsky said. Kurt Opsahl, senior staff attorney for the Electronic Frontier Foundation, disagreed. “The end result of the [7th Circuit] case is that Section 230 was upheld against Craigslist. It may not be as strong, but it did grant immunity,” he said. “Section 230 is a valuable protection that allows Craigslist to operate.” He said everyone is waiting to see what the 9th Circuit has to say in the Roommates.com case, which involves not only open posting similar to Craigslist, but also with more structured pull-down menus that direct users to a variety of preferences. Nearly two dozen Internet companies and publishers have weighed in with an amicus in support of Roommates.com. Along with the Electronic Frontier Foundation, they included Amazon.com, AOL, eBay Inc., Google Inc., The New York Times Co., Tribune Co., Microsoft Corp. and various associations. The amicus argues that Roommates.com does not develop new information beyond what users have provided. Instead, Roommate facilitates searches based on expressions to be communicated to other users. To hold otherwise, would be tantamount to saying Google or Yahoo are responsible in part for creating all content on the Internet, according to the papers filed by Patrick Carome of Wilmer Cutler Pickering Hale and Dorr’s Washington office. Craigslist attorney Eric Brandfonbrener of the Chicago office of Seattle’s Perkins Coie said, “The jury is still out on whether there is a significant distinction or not” between the 7th Circuit’s limits and the broader immunity in other circuits. “Clearly we think we should win like Craigslist,” said Roommates.com attorney Tim Alger of Quinn Emanuel Urquhart Oliver & Hedges in Los Angeles. As to the pull-down menu preferences, he said, “We don’t compel preferential searching. All the categories have a no-preference option; the conduct remains in the hand of the user.” An attorney for the San Fernando Fair Housing Council, Gary Rhoades of Rhoades & Al-Mansour in Los Angeles did not return calls seeking comment.

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