Indiana Law Review


Indiana Law Review
Volume 43 2009 Number 1

NOTES

Drop-down Lists and the Communications
Decency Act: A Creation Conundrum

Hattie Harman*

Introduction

The Internet is a vast medium for expressing ideas, expanding commerce,
and exchanging information ofall kinds. In addition to these socially beneficial

activities, the Internet provides opportunities to achieve less desirable ends, such

as defamation,
1

fraud,
2
and housing discrimination.

3
Multiple parties may

contribute to the wrong, including the individual computer user who "posted" the
offensive online content and the Internet service provider whose website the
individual used to accomplish his act.

4
Determining legal responsibility for these

acts has concerned courts and Congress since the early days ofthe Internet.
5
In

1996, Congress amended the Telecommunications Act of 1996 with the
Communications Decency Act, codified at § 230 oftitle 47 ofthe U.S. Code ("§
230"), effectively eliminating websites' liability for content they did not create

or develop.
6 More recently, courts have begun to face the issues presented by

limited sets ofpre-populated content, such as drop-down lists, that websites make

* J.D. Candidate, 2010, Indiana University School of Law—Indianapolis; B.A., 1990,
M.A.T. 1992, Miami University, Oxford, Ohio. I would like to thank Professors Andrew R. Klein

and R. George Wright for their guidance and insights during this project, and my husband, John,
and son, Gordon, for their endless patience throughout my law school experience. This Note is
dedicated to the memory of my mother, Jo Harman, who was and continues to be a source of
absolute support and inspiration to me.

1

.

See, e.g. , Whitney Info. Network, Inc. v. Xcentric Ventures, L.L.C., No. 2 :04-cv-47-FtM-

34SPC, 2008 WL 450095, at *5-6 (M.D. Fla. Feb. 15, 2008).
2. See, e.g., Anthony v. Yahoo! Inc., 421 F. Supp. 2d 1257, 1259, 1262 (N.D. Cal. 2006).

3. See, e.g., Fair Hous. Council v. Roommates.com, L.L.C., 521 F.3d 1 157, 1 166 (9th Cir.

2008) (en banc).

4. See, e.g., Chi. Lawyers' Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519

F.3d 666, 671-72 (7th Cir. 2008); MCW, Inc. v. Badbusinessbureau.com, L.L.C., No. Civ.A.3:02-
CV-2727-G, 2004 WL 833595, at *10 (N.D. Tex. Apr. 19, 2004).

5. See Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135, 139 (S.D.N.Y. 1991)

(determining liability for allegedly defamatory statements carried in a publication on CompuServe's

database).

6. 47 U.S.C § 230 (2006).



1 44 INDIANA LAW REVIEW [Vol. 43 : 1 43

available to their users.
7
Pre-populated content differs from other types ofuser-

generated Internet content because the website actually authors the list ofoptions

it provides; the user merely selects from that list.
8

Therefore, the website

arguably creates or develops the user's ultimate selection and cannot use § 230

to shield it from liability should a court ultimately find the resulting content to

be unlawful.
9
Conversely, because the website user unilaterally selects from the

available options, he is conceivably the sole creator of the resulting content.

This Note examines whether drop-down lists and other pre-populated content

restrict a user's available input, making the website a creator or developer ofthe
user-selected content, and evaluates possible approaches courts might take to

such a question. Part I of this Note traces the history of liability for Internet

content. Part II explains relevant statutory definitions and their interpretations

by courts. Part III examines recent cases dealing specifically with pre-populated

content. Part IV analyzes the problems with courts' current applications of§ 230
to pre-populated content. Part V assesses possible approaches to liability for pre-
populated content and concludes with a set ofstandards courts can apply to judge

website liability for pre-populated content.

I. History of Liability for Internet Content

The ability of users to manipulate and provide Internet content has grown
with the medium.

10
Increased Internet speech naturally yields to more conflicts

over that speech.

'

l

Because the common law evolved to deal with speech in print
media, it has not been perfectly suited to application on the Internet.

12

A. Evolution ofInternet Content

Today's Internet differs substantially from the "walled garden" Internet

world of the 1990s, where Internet service providers (ISPs) such as America

7. See, e.g., Roommates.com, 521 F.3d at 1 165.

8. For the purposes of this Note, pre-populated content is information formulated by a

website and provided as a choice or option to the user. Examples include drop-down lists, check

boxes, and radio button selections.

9. See §230(0(3), (c)(1).

1 . See Cecilia Ziniti, Note, The OptimalLiability Systemfor Online ServiceProviders: How
Zeran v. America Online Got It Right and Web 2.0 Proves It, 23 Berkeley Tech. L.J. 583, 590

(2008).

11. See Brandy Jennifer Glad, Comment, Determining What Constitutes Creation or

Development ofContent Under the Communications Decency Act, 34 Sw. U. L. REV. 247, 247-48

(2004) (discussing the expansion ofInternet communication and the resultant struggle between free

speech and traditional defamation rules).

12. See Anthony Ciolli, Chilling Effects: The Communications Decency Act and the Online

Marketplace ofIdeas, 63 U. MIAMI L. Rev. 137, 145-46 (2008); see also Zeran v. Am. Online, Inc.,

129 F.3d 327, 330 (4th Cir. 1997) (noting Congress's recognition that tort claims threatened

freedom of speech on the Internet); Ziniti, supra note 10, at 584-85 (discussing the unfair result of

the application of common law principles to an Internet defamation claim).



2009] THE COMMUNICATIONS DECENCY ACT 1 45

Online controlled the information and websites that users could access.
13
During

that era, a website provided information and advertising via static web pages, and
users had no practical ability to add their own content to the sites. 14 Due in part
to increased competition in the dial-up access market and the proliferation of

broadband access, the "walls" of the walled garden world began to crumble,
15

and websites began to offer users the ability to interact with the content on their

sites.
16

The increase in user-website interaction was possible largely through the use
of graphical user interfaces (GUIs), which permitted users to interact directly

with the content on the screen, typically by using a mouse.
17 GUIs include

familiar items such as clickable icons, windows, and scrollbars.
18 GUIs were a

significant advance over traditional command line interfaces (CLIs) because
GUIs allowed a user to execute a computer operation by selecting a graphic
representation ofthe command, rather than forcing the user to type in a string of
text, as CLIs required.

19
In the mid-1970s, Xerox researchers developed the first

GUIs,
20

but the most important GUI pioneer was Apple computer.21 In 1983
Apple released its short-lived "Lisa" computer, which incorporated the first GUI
commonly known today as a drop-down list. 22 GUIs are the norm in modern
software applications

23
and have become particularly important in web browsing

applications.
24 Drop-down interfaces in particular have gained widespread

application in both traditional and Internet environments because they are easy

for the average non-tech savvy computer user to manipulate, and they use

relatively little screen space.
25

13. See Ciolli, supra note 12, at 166. The term "walled garden" refers to the idea that ISPs

allowed users access to only a small area of the total online world. Id.

14. See id. at 168; Ziniti, supra note 10, at 590.

15. See Ciolli, supra note 12, at 172-73, 176.

16. See id. at 179; Ziniti, supra note 10, at 591-92.

17. The Linux Information Project, GUI Definition, http://www.linfo.org/gui.html (last

visited Oct. 13,2009).

18. Eric Steven Raymond & Rob W. Landley, The Art of Unix Usability (2004),
http://www.catb . org/~esr/writings/taouu/html/ch02s05 .html

.

19. See The Linux Information Project, Command Line Definition, http://www.linfo.org/

command_line.html (last visited May 24, 2009).
20. Raymond & Landley, supra note 1 8.
2 1

.

Jeremy Reimer, A History ofthe GUI, ARS Technica, May 5, 2003, http://arstechnica.

com/old/content/2005/05/gui.ars/4.

22. Id. ; Raymond & Landley, supra note 1 8.
23. See User Customizable Drop-Down Control List for GUI Software Applications, U.S.

Patent Application No. 20090007009 (filed Jan. 1, 2009).

24. The Linux Information Project, GUI Definition, supra note 17.

25. But see Krisha Kumar, Replacing theHTML Drop-Down Control, THOUGHT CLUSTERS

:

Software, Development and Mgmt., Jan. 12, 2008, http://www.thoughtclusters.

com/2008/0 lreplacing-the-drop-down-control (describing the shortcomings of dropdown lists in

addition to their benefits).



146 INDIANA LAW REVIEW [Vol. 43: 143

B. Applying the Law to Internet Content

Traditional print publication standards for defamation arose from the

common law.26 Under the common law of defamation as applied to print
publications, courts treat publishers, and distributors differently.

27
Publishers,

such as newspapers, are liable for defamatory material they publish, regardless

of knowledge of the material's unlawful nature because they have editorial

control over that material.
28

Distributors, such as booksellers, are liable only for

distributing material they know or should know to be defamatory and may escape
"republisher" liability ifthey remove defamatory material from distribution once

they have knowledge of the material's defamatory nature.
29

In 1991, a federal district court in New York applied traditional print
publication standards to find Internet service provider CompuServe not liable for
alleged defamatory content posted on one of its forums.

30
In Cubby, Inc. v.

CompuServe, Inc.,
31

the district court held that CompuServe had no editorial
control over the information at issue and, thus, was subject to liability only as a
distributor of the content, that is, if it "knew or had reason to know of the
allegedly defamatory" statements.

32

Four years later in Stratton Oakmont, Inc. v. Prodigy Services Co.,
33
a New

York court held an ISP to the stricter "publisher" standard and found it liable for
content posted on one of its online bulletin boards.

34 The court reasoned that the
ISP was liable because it "held itself out to the public and its members as
controlling the content ofits computer bulletin boards," and it "actively utiliz[ed]

technology and manpower to delete notes from its computer bulletin boards on
the basis of offensiveness and 'bad taste' . . . and such decisions constitute

editorial control."
35

In 1996, largely in response to the holding in Stratton Oakmont
36
Congress

enacted § 509 ofthe Communications Decency Act, codified at § 230 oftitle 47
of the U.S. Code.

37
In passing § 230, Congress sought to limit Stratton

26. See Sewali K. Patel, Note, Immunizing Internet Service Providers from Third-Party

Internet Defamation Claims: HowFar Should Courts Go?, 55 VAND. L. REV. 647, 654-57 (2002).
27. Mat 656-58.
28. See id. at 656-57.

29. See id. at 657-58.

30. Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135, 141 (S.D.N.Y. 1991).

31. Id.

32. Mat 140-41.
33. No. 3 1063/94, 1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995), superseded by statute,

Communications Decency Act, Pub. L. No. 104-104, 110 Stat. 137 (1996).

34. A/. at*4-6.

35. Id. at*4.

36. See Barrett v. Rosenthal, 146P.3d510, 516(Cal. 2006) (noting that "[§ 230's] legislative

history indicates that [it] was enacted in response to [Stratton Oakmont]").

37. 47 U.S.C. § 230 (2006).



2009] THE COMMUNICATIONS DECENCY ACT 147

Oakmonfs "backward" result of imposing stricter liability over those ISPs who
"tried to exercise some control over offensive material."38 As Congress noted at
the time, "[o]ne of the specific purposes of this section is to overrule Stratton-

Oabnont v. Prodigy and any other similar decisions which have treated such
providers and users as publishers or speakers of content that is not their own
because they have restricted access to objectionable material."

39

Section 230 provides in pertinent part: "No provider or user ofan interactive
computer service shall be treated as the publisher or speaker ofany information

provided by another information content provider."
40 The statute is designed to

further several policies:

(1) to promote the continued development of the Internet and other

interactive computer services and other interactive media;

(2) to preserve the vibrant and competitive free market that presently

exists for the Internet and other interactive computer services,

unfettered by Federal or State regulation;

(3) to encourage the development oftechnologies which maximize user
control over what information is received by individuals, families,
and schools who use the Internet and other interactive computer
services;

(4) to remove disincentives for the development and utilization of
blocking and filtering technologies that empower parents to restrict
their children's access to objectionable or inappropriate online

material; and

(5) to ensure vigorous enforcement ofFederal criminal laws to deter and
punish trafficking in obscenity, stalking, and harassment by means
of computer.

41

In apparent recognition of § 230's potentially far reach, Congress included

a section defining the statute's effect on other areas of the law.42 Specifically,
Congress provided that § 230 have no effect on federal criminal statutes,
intellectual property law, federal or state communications privacy law, or any

state law "consistent with this section."
43

However, the statute specifically
prohibits liability for ordinary state law claims, such as contract actions and

defamation claims that do not fall within the specific exemptions.
44

Beginning with Zeran v. America Online, Inc.,
45

courts have interpreted §

38. 141 Cong. Rec. H8460-01 (1995).

39. H.R. CONF. REP. No. 104-458, at 194 (1996) (Conf. Rep.), reprinted in 1996

U.S.C.C.A.N. 10.

40. § 230(c)(1).

41. Id. § 230(b).

42. Id § 230(e).

43. Id

44. Id. § 230(e)(3) ("No cause of action may be brought and no liability may be imposed

under any State or local law that is inconsistent with this section.").

45. 129 F.3d 327 (4th Cir. 1997).



148 INDIANA LAW REVIEW [Vol. 43: 143

230 immunity expansively.
46

Zeran held that § 230 immunized "distributors" as
well as "publishers" of third party Internet content.

47
Traditionally, publishers

need not have knowledge of the existence of unlawful content in their

publications in order to be liable for that content.
48

In contrast, distributors, such

as news vendors or booksellers, must have actual knowledge of the unlawful
nature ofthe content in order to be liable.

49 The Zeran court concluded § 230'

s

instruction that "[n]o provider ... of an interactive computer service shall be

treated as the publisher or speaker of any information provided by another
information content provider"

50
applied equally to distributors with notice of

unlawful content.
51 The court further noted that introducing tort liability to the

Internet would chill speech in an arena where the right to speak freely is meant
to be particularly robust.

52
?ost-Zeran courts "have construed the immunity

provisions in § 230 broadly in all cases arising from the publication of user-
generated content."

53

II. Who Is an "Information Content Provider"?

Because § 230 provides immunity only for information provided by another
information content provider,

54
a website can be liable when it is found to be the

provider of content. The meaning of "information content provider" is
paramount. The statute and case law help elucidate the meaning ofthe statutory
language.

55

Section 230 provides definitions for some of its key terminology.56 Under
the statute, an "interactive computer service" is "any information service, system,

or access software provider that provides or enables computer access by multiple
users to a computer server, including specifically a service or system that

provides access to the Internet and such systems operated or services offered by
libraries or educational institutions." Courts have recognized the statutory

46. See Barrett v. Rosenthal, 1 46 P.3d 5 1 0, 5 1 8 (Cal. 2006) (discussing the broad acceptance

in both federal and state courts of the Zeran holding).

47. Zeran, 129 F.3d at 334. Despite arguments that Internet service providers should be

liable as contributors ofcontent, see, e.g. , Patel, supra note 26, at 653, Zeran and subsequent courts

have found § 230 immunizes both distributors and publishers from liability for defamatory Internet

content, see Barrett, 1 46 P.3d at 5 1 3 ; Doe v. Am. Online Inc. , 783 So. 2d 1 1 0, 1 1 7 (Fla. 200 1 ).

48. Zeran, 1 29 F.3d at 33 1 (citing W. PAGE KEETON et AL., PROSSER and Keeton ON THE

Law of Torts § 1 13, at 810 (5th ed. 1984)).
49. Id. (citing Keeton ET al., supra note 48, at 8 1 1 ).

50. 47 U.S.C. § 230(c)(1) (2006).

51. SeeZeran, 129 F.3dat 333.

52. See id. at 331.

53. Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008).

54. § 230(c)(1).

55. See, e.g., § 230(f)(3); Fair Hous. Council v. Roommates.com, L.L.C., 521 F.3d 1157,

1 162-63 (9th Cir. 2008) (en banc).

56. See§ 230(f).



2009] THE COMMUNICATIONS DECENCY ACT 149

definition of"interactive computer service" "includes a wide range ofcyberspace

services"
57
and "the most common ... are websites."58

Section 230 further defines "information content provider" as "any person

or entity that is responsible, in whole or in part, for the creation or development

of information provided through the Internet or any other interactive computer

service."
59

Although "content" is neither explicitly addressed by courts nor

defined in the statute, courts have recognized e-mail listservs,
60
message boards,

61

dating and other "matching" websites,
62

and chat rooms
63

as generating the

content at issue in § 230 cases. Additionally, courts have recognized the

statutory immunity defense against claims including defamation,
64
negligence,

65

infringement of free speech,
66

intentional infliction of emotional distress,
67

violation ofthe Fair Housing Act,
68
violation ofTitle II ofthe Civil Rights Act,

69

fraud,
70
and breach of contract.

71

57. Batzel v. Smith, 333 F.3d 1018, 1030 n.15 (9th Cir. 2003).

58. Roommates.com, 521 F.3d at 1 162 n.6.

59. §230(f)(3).

60. Batzel, 333 F.3d at 1018.

61. Krinsky v. Doe 6, 72 Cal. Rptr. 3d 231, 234 (Ct. App. 2008).

62. See Chi. Lawyers' Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d

666, 668 (7th Cir. 2008); Roommates.com, 521 F.3d at 1 161-62; Carafano v. Metrosplash.com,

Inc., 339 F.3d 1 1 19, 1 121 (9th Cir. 2003).

63. See Green v. Am. Online, 318 F.3d 465, 468-69 (3rd Cir. 2003).

64. See, e.g., Whitney Info. Network, Inc. v. Xcentric Ventures, L.L.C., No. 2:04-cv-47-FtM-

34SPC, 2008 WL 450095, at *2 (M.D. Fla. Feb. 15, 2008) (claiming website owner contributed to
user-posted content defaming his business).

65. See Doe v. MySpace, Inc., 528 F.3d 413, 416 (5th Cir. 2008) (claiming negligence

against social networking website for failing to prevent thirteen-year-old girl from lying about her

age, when the girl was sexually assaulted by alleged predator she met through the website).

66. See e360Insight, L.L.C. v. Comcast Corp., 546 F. Supp. 2d 605, 606-07 (N.D. 111. 2008)

(claiming that internet service provider's blocking of mass e-mails to ISP's customers violated e-

mailers First Amendment right to free speech).

67. See Doe v. Friendfinder Network, Inc., 540 F. Supp. 2d 288, 292-93 (D.N.H. 2008)

(claiming for emotional distress against dating website for profile posted by unknown third party

impersonating plaintiff).

68. See Fair Hous. Council v. Roommates.com, L.L.C, 521 F.3d 1157, 1162 (9th Cir. 2008)

(en banc) (claiming that defendant's roommate-matching website violated provisions of42 U.S.C.

§ 3604 prohibiting publication ofdiscriminatory housing advertisements); see also Chi. Lawyers'

Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 668 (7th Cir. 2008).

69. See Noah v. AOL Time Warner, Inc., 261 F. Supp. 2d 532, 534 (E.D. Va. 2003)
(claiming ISP failed to protect Muslin user from religion-based harassment by other users).

70. See Anthony v. Yahoo! Inc., 421 F. Supp. 2d 1257, 1262 (N.D. Cal. 2006) (claiming

dating website fraudulently used fake profiles to trick user into subscribing to the dating service).

71. See id at 1260-61.



150 INDIANA LAW REVIEW [Vol. 43: 143

A. Creation or Development

The critical language when analyzing whether a website is an information
content provider is "creation or development."

72
Section 230 does not

specifically define "creation or development," though courts have given the

concept a variety of meanings.
73

Further, whether or not a website creates or

develops content ultimately turns on whether it "is responsible, in whole or in

part, for the creation or development of information."
74

Courts have generally found that traditional editorial functions such as

deleting inaccurate information
75
and making other "minor alterations"

76
do not

constitute creation or development.
77

In Batzel v. Smith™ a listserv operator
claimed § 230 immunity to successfully defeat a defamation claim.

79
The Batzel

court found "[t]he 'development ofinformation' therefore means something more
substantial than merely editing portions of an e-mail and selecting material for

publication."
80 The Batzel dissent disagreed, finding that selecting a third party's

e-mail message for publication effectively alters its meaning, "adding to the

message the unstated suggestion that [Defendant] deemed the message worthy
of readers' attention."

81 A similar view was advanced in Anthony v. Yahoo!
Inc.*

2
where a court found § 230 not applicable because the plaintiffclaimed the

defendant's manner of presenting undisputedly third party information

constituted development of that information.
83 Most courts reject this view.

84

B. Solicitation

When courts consider the context of the website receiving the information
in addition to the website owner's actions, the question of creation or

development is often closer. In Hy Cite Corp. v. Badbusinessbureau.com,
L.L.C,

85
the court found a website soliciting reports of consumers' negative

72. See 47 U.S.C. § 230(c)(1), (f)(3) (2006).

73. See, e.g., Batzel v. Smith, 333 F.3d 1018, 1031 (9th Cir. 2003); Ben Ezra, Weinstein, &
Co., Inc. v. Am. Online, Inc., 206 F.3d 980, 986 (10th Cir. 2000); Hy Cite Corp. v.

badbusinessbureau.com, L.L.C, 418 F. Supp. 2d 1 142, 1 148-49 (D. Ariz. 2005).

74. § 230(f)(3) (emphasis added).

75. Ben Ezra, 206 F.3d at 986 (finding that "[b]y deleting the allegedly inaccurate stock

quotation information, Defendant was simply engaging in the editorial functions Congress sought

to protect").

76. &tfze/,333F.3datl031.

77. See id.

78. See id

79. Id.

80. Id.

81. Id. at 1040 (Gould, J., dissenting in part).

82. 421 F. Supp. 2d 1257 (N.D. Cal. 2006).

83. Mat 1263.
84. See, e.g., Doe v. FriendfinderNetwork, Inc., 540 F. Supp. 2d 288, 298 n.9 (D.N.H. 2008).

85. 418 F. Supp. 2d 1 142 (D. Ariz. 2005).



2009] THE COMMUNICATIONS DECENCY ACT 1 5

1

experiences with businesses by offering compensation could "arguably" be found

"responsible ... for the creation or development of information" provided by

consumers in response to the solicitation.
86

Some courts have compared soliciting a particular type of content to its
development.

87
In F. T. C v. Accusearch, Inc. ,88 the Tenth Circuit held that § 230

did not protect a website from a Federal Trade Commission claim that it engaged

in unfair business practices by obtaining and marketing confidential phone

records.
89 By making confidential telephone records available for public

purchase, the court found Accusearch "developed" those records and therefore

was an information content provider under § 230.
90

The court in MCW, Inc v. Badbusinessbureau.com, L.L. C 91 reached a similar
result where a consumer-complaint website asked a disgruntled consumer to,

among other things, take specific photographs ofthe offending company's owner
and post them on the website.

92 The court opined, "[t]he defendants cannot
disclaim responsibility for disparaging material that they actively solicit."

93 The
court further equated "actively encouraging and instructing a consumer to gather

specific detailed information" to development of that information.
94

More recently, however, a court resolved a similar issue differently.95

Whitney Information Network, Inc. v. Xcentric Ventures, L.L.C.
96
concerned the

same defendant consumer-complaint website as in MCW.91 The Whitney court
found that despite the fact the website advised its users make their reports more
interesting by using creativity,

98
it differed from the solicitation at issue in MCW

because here the website had not solicited specific content.
99

It is notable,

however, that the Whitney court made a point of mentioning the website's

86. Id at 1 149 (quoting 47 U.S.C. § 230(f)(3) (2006)).

87. See F.T.C. v. Accusearch, Inc., 570 F.3d 1 187, 1 199-1200 (10th Cir. 2009); MCW, Inc.
v. Badbusinessbureau.com, L.L.C, No. Civ.A.3:02-CV-2727-G, 2004 WL 833595, at *10 (N.D.
Tex. Apr. 19, 2004). But see Whitney Info. Network, Inc. v. Xcentric Ventures, L.L.C, No. 2:04-

cv-47-FtM-34SPC, 2008 WL 450095, at *10, *11 n.27 (M.D. Fla. Feb. 15, 2008) (finding that
despite plaintiffs assertions that defendants solicited user reports about companies that rip off

consumers, defendant had not solicited specific material and therefore did not develop the content

at issue).

88. 570 F.3d 1187.

89. Mat 1201.
90. Mat 1198.
91. 2004 WL 833595.
92. Id at *\0.

93. Id

94. Id

95. See Whitney Info. Network, Inc. v. Xcentric Ventures, L.L.C, No. 2:04-cv-47-FtM-

34SPC, 2008 WL 450095, at *12 (M.D. Fla. Feb. 15, 2008).
96. Id

97. Compare id. at *1, with MCW, 2004 WL 833595, at *1.
98. Whitney, 2008 WL 450095, at *5.
99. /</. at*lln.27.



1 52 INDIANA LAW REVIEW [Vol. 43 : 1 43

requirement that the poster attest to the validity of his report,
100

contrasting this

with a hypothetical non-immune website which invited postings based on
fabrication.

101

C. Links

Some courts have held that providing links to information on other websites
does not constitute development of that information. In Universal

Communication Systems, Inc. v. Lycos, Inc.,
102

the First Circuit rejected the

argument that an ISP "rendered culpable assistance" to a third party information

content provider by providing a link to information that damaged the plaintiff. 103

The court held that defendant Lycos enjoyed § 230 immunity because the
message board postings on the linked website remained the content of another

information content provider, despite the fact that the "construct and operation"

of Lycos's site—the links—may have influenced the availability of the
postings.

104 The court noted that making it "marginally easier for others to
develop and disseminate misinformation" is "not enough to overcome Section

230 immunity."
105

D. Free-form Text Entries

Free-form text prompts serve as "blank slates" which users may "develop"
in any way they like. 106 Two federal courts ofappeals have held that a website's
provision of free-form text boxes did not constitute creation or development of

the content users post therein.
107

In Fair Housing Council v. Roommates.com,

L.L.C,
108

the Ninth Circuit found an "Additional Comments" section that
provided an open text prompt where users could enter descriptions in their own
words was not "creation" by the website.

109 The Seventh Circuit reached a
similar result in Chicago Lawyers ' Committeefor Civil Rights Under Law, Inc.

v. Craigslist, Inc.,
uo

finding the website's offering of an advertising forum did

not cause the discriminatory content ofthe advertisement any more than "people

100. Mat*5.

101. Id at * 10-1 1 (citing Fair Hous. Council v. Roommates.com, L.L.C., 489 F.3d 921, 928

(9th Cir. 2007)). The Whitney court declined to use this Roommates.com panel decision as

authority prior to the case's rehearing by the Ninth Circuit en banc. See id. at *10 n.25.

102. 478 F.3d 413 (1st Cir. 2007).

103. Mat 4 19-20.
104. Mat 419.
105. Id at 420.

1 06. Thanks to Professor Wright for this analogy.

1 07. Chi. Lawyers' Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 5 1 9 F.3d 666,

671 (7th Cir. 2008); Fair Hous. Council v. Roommates.com, L.L.C., 521 F.3d 1 157, 1 173-74 (9th

Cir. 2008) (en banc).

108. 521 F.3d 1157.

109. Mat 1173-74.
110. 519F.3dat671.



2009] THE COMMUNICATIONS DECENCY ACT 1 53

who save money 'cause' bank robber[ies]." 1!1

E. Search Engine Results

Whether search engine results and sorting/matching mechanisms constitute

creation or development is a subject of some debate.
112

In Roommates.com, the

website allegedly violated the Fair Housing Act (FHA) by, among other things,
employing prohibited characteristics such as sexual orientation and family status

to sort and match users.
1 13 The Roommates.com dissent argued, "there should be

a high bar to liability for organizing and searching third-party information."
114

The majority appeared to agree: "The mere fact that an interactive computer
service 'classifies user characteristics . . . does not transform [it] into a

"developer" ofthe "underlying misinformation."'"
115 To define "development"

so broadly as to include the sorting of dating profiles according to the users'

relationship preferences would "sap section 230 ofall meaning." 1 16 However, the
majority found that Roommate's

117
development of the "discriminatory search

mechanism is directly related to the alleged illegality of the site" 118 and was,
therefore, "sufficiently involved with the design and operation of [its] search and

email systems ... so as to forfeit any immunity to which it was otherwise entitled
under section 230."

1 19 Though the Roommates.com court based its finding on the
mechanism's ultimately discriminatory result, commentators have warned that

even stricter liability for search engines may be on the horizon. 120 Although §
230 generally protects "pure" search engines, "recommendations of content

potentially become endorsements of that content's message."121 Further, when
the search engine is part of a "creative community" or integrated with another
application, the engine becomes identified with the content provider.

122

Conceivably, then, a sorting and matching mechanism used in conjunction with
a website's commercial purpose could be considered creation or development of

content.

ill. Id.

112. See generally James Grimmelmann, Don 't Censor Search, 1 1 7 YALE L.J. POCKET PART

48 (2007), http://yalelawjournal.org/images/pdfs/582.pdf.

1 13. Roommates.com, 521 F.3d at 1 172.

1 14. Id. at 1 177 (McKeown, J., dissenting).

115. Id. at 1 172 (majority opinion) (quoting Carafano v. Metrosplash.com, Inc., 339 F.3d

1119, 1 124 (9th Cir. 2003)).

116. Id. (discussing Carafano, 339 F.3d at 1 124).

117. As the court notes, "for unknown reasons, the company goes by the singular name

'Roommate.com, L.L.C butpluralizes its website's URL, www.roommates.com." Id. at 1 161 n.2.

118. Mat 1172.
119. Mat 1170.
120. See, e.g., James Grimmelmann, The Structure ofSearch Engine Law, 93 IOWA L. Rev.

1,36-37(2007).

121. Mat 37.
122. Id.



154 INDIANA LAW REVIEW [Vol. 43: 143

III. Cases Involving Pre-populated Content

Recently, courts have confronted the application of § 230 to pre-populated

content, particularly content selected by a user from choices provided by the
website in a drop-down list.

123

A. Roommates.com

In 2008, the Ninth Circuit Court of Appeals narrowed the broad grant of

immunity set forth in Zeran.
124

In Roommates.com, the court found that § 230
did not shield the defendant website owner when its website matching room-
seekers with room-renters required users to answer a questionnaire disclosing

their sex, sexual orientation, and familial status.
125 The court found Roommate

performed three specific acts ofcontent "development," making it an information

content provider and therefore not entitled to § 230 immunity.
126

First,

Roommate authored the offensive questions. 127 Second, via drop-down lists,
Roommate provided a limited choice ofanswers to those questions and required
the user to answer the questions in order to use the service.

128
Third, Roommate

used the answers in a search engine-like mechanism to sort and match users and
create user profiles.

129

The court provided two rationales for its holding. 130 First, the website
"forced" users to answer a questionnaire by choosing from a drop-down list
Roommate created. 131 Thus, "[b]y requiring subscribers to provide the
information as a condition ofaccessing its service, and by providing a limited set
of pre-populated answers, Roommate becomes much more than a passive
transmitter ofinformation provided by others; it becomes the developer, at least
in part, of that information."

132

The court's second rationale focused on the nature of the information at

123. See Roommates.com, 521 F.3d at 1166; Whitney Info. Network, Inc. v. Xcentric

Ventures, L.L.C., No. 2:04-cv-47-FtM-34SPC, 2008 WL 450095, at *9 (M.D. Fla. Feb. 15, 2008).
124. See Roommates.com, 521 F.3d at 1 170.

125. Mat 1169-70.
126. Mat 1164.
127. Id

128. Mat 1165.
129. Id at 1 167; see supra Part II.E.

1 30. See Roommates,com, 52 1 F.3d at 1 1 65 ("The CDA does not grant immunity for inducing
third parties to express illegal preferences. Roommate's own acts—posting the questionnaire and
requiring answers to it—are entirely its doing and thus section 230 of the CDA does not apply to
them.").

131. Id. at 1 166. In characterizing how Roommate instructs its users, the majority's opinion

uses the words "force" and "require" or variations thereof at least twelve times. See, e.g., id. at

1166n.l9, 1167.

132. Mat 1166.



2009] THE COMMUNICATIONS DECENCY ACT 1 55

issue.
133 The court held that "[§ 230] does not grant immunity for inducing third

parties to express illegal preferences."
134

In finding no immunity for the site's

profile and search mechanisms, the court stated that merely classifying user

characteristics, as many websites do through their sorting and matching
mechanisms, does not make a website a "developer" of information. 135 Rather,
the court suggested that Roommate's mechanism received no immunity because
it used "discriminatory questions" and "discriminatory answers" to encourage

housing discrimination.
136

It is also notable that the court likened solicitation of

content to development under § 230 but seemed to specify that the solicitation

itself must be unlawful in order to develop unlawful content.
137 The Ninth

Circuit attempted to draw a line, however, when it held user entries in
Roommate's free-form text box were not "development" and, therefore, received

§ 230 immunity.
138

The Roommates.com court stated "weak encouragement," such as requesting
a descriptive entry in a free-form text box, "cannot strip a website of its section

230 immunity,"
139

but found § 230 does not protect a website that forces the

expression of discriminatory preferences.
140 The court contrasted another

website's "neutral tools" for matching users based on their voluntary selections

with Roommate's website, which "is designed to force subscribers to divulge

protected characteristics and discriminatory preferences" in order to match them

based on characteristics prohibited by the FHA. 141 The Roommates,com majority
also considered the Universal opinion, and distinguished it on the basis that

Universal did not involve the website's "active participation" in developing the

offensive content.
142

The Ninth Circuit did not address, however, the opinions'
apparent differences as to making the offense "easier" to accomplish,

143
in light

of the Universal court's finding that making it "marginally easier for others to

develop and disseminate misinformation" is "not enough to overcome Section

230 immunity."
144

133. Id. at 1 164. The court stated, "[W]e examine the scope of plaintiffs' substantive claims

only insofar as necessary to determine whether section 230 immunity applies." Id. The court

examined not whether the substantive claim was exempted from immunity under the statute, but

rather whether the substantive claim had merit, in order to conclude § 230 immunity is inapplicable.

See id.

134. Id. at 1 165 (emphasis added).

135. Id. at 1172, 1174.

136. See id. at 1172.

137. See id. at 1 166 ("Unlawful questions solicit (a.k.a. 'develop') unlawful answers.").

138. Id. at 1173-74.

139. Mat 1174.
140. Mat 1172.
141. Id.

142. Id. atll72n.33.

143. Compare id. at 1 172, with Universal Commc'n Sys., Inc. v. Lycos, Inc., 478 F.3d 413,

420 (1st Cir. 2007).

144. Lycos, 478 F.3d at 420.



156 INDIANA LAW REVIEW [Vol. 43:143

B. Whitney

The court in Whitney Information Network, Inc. v. Xcentric Ventures, L.L.C.
saw the drop-down issue somewhat differently.

145
In Whitney, the defendant

website provided a forum for consumers to post complaints and other information

about their dealings with various companies.
146 The website provided consumers

with pre-populated drop-down lists and other mechanisms to describe the

companies.
147 The Whitney court found the plaintiffcompany's defamation claim

barred by § 230 because, absent evidence that the defendants participated in

selecting the categories,

the mere fact that [Defendant] provides categories from which a poster

must make a selection in order to submit a report on the . . . website is
not sufficient to treat Defendan[t] as [an] information content provider[]

ofthe reports . . . that contain the "con artists", "corrupt companies", and

"false TV advertisements" categories. 148

The menu at issue in Whitney differed substantially from that in Roommates.com
because it provided hundreds of choices to the user, many of which were not
negative or defamatory in nature.

149 The Whitney court accordingly found the
site's provision ofa limited number ofcategories from which the user must select
was not sufficient to constitute development because there were hundreds of
categories and many were not defamatory. 150

C. GW Equity
In GWEquity, L.L. C. v. Xcentric Ventures, L.L. C.

,

151
the plaintiffclaimed the

defendant's consumer complaint website published comments which, among
other things, defamed the plaintiffs business and interfered with the plaintiffs

business relationships.
152

Whereas the Whitney court's opinion predated the

Ninth Circuit's en banc holding in Roommates.com, the GWEquity court was
able to consider the Roommates.com en banc decision.

153 The GWEquity court

145. See Whitney Info. Network, Inc. v. Xcentric Ventures, L.L.C, No. 2:04-cv-47-FtM-

34SPC, 2008 WL 450095, at *10-1 1 (M.D. Fla. Feb. 15, 2008).
146. Id at*5.

147. Id

148. A/. at*10.

1 49. Id. At the time ofthe Whitney decision, Roommates,com awaited rehearing by the Ninth

Circuit en banc; the panel decision therefore had no precedential value. For this reason (in addition

to the factual differences between the cases), the Whitney court refused the plaintiffs entreaty that

it rely on the Ninth Circuit panel decision in Roommates.com. See id. at *10 n.25.

150. Id. at*10.

151. No. 3:07-CV-976-O, 2009 WL 62173 (N.D. Tex. Jan. 9, 2009).
152. Id at *\.

153. Id. at*5.



2009] THE COMMUNICATIONS DECENCY ACT 1 57

found Roommates,com distinguishable on two counts. 154 First, Xcentric provided
a broader range of selections to the user than did Roommate.com. 155 Second,
unlike GWEquity, Roommates.com involved a situation in which the website
violated the law simply by posing the wrong question, rather than through the
answers it provided.

156

D. Carafano

Content on the dating website Matchmaker.com was the subject ofCarafano
v. Metrosplash.com, Inc.

151
Matchmaker required date-seekers to complete a

lengthy questionnaire.
158

Users selected answers to the questions from a series

of drop-down menus listing between four and nineteen options, some of which
were "innocuous" and some ofwhich were "sexually suggestive."159 Users were
also asked to answer additional questions in an "essay" section.

160 The district
court found that because the website, through its drop-down menus, created the
content at issue, it was not eligible for § 230 immunity.

161 The Ninth Circuit
reversed the district court's holding, reasoning that although "the questionnaire

facilitated the expression of users' information, "the selection ofthe content was
left exclusively to the user."

162
Additionally, in contrasting the date-matching

mechanism in Carafano with the roommate-matching mechanism in
Roommates.com, the Ninth Circuit noted that the website-provided classifications
in Carafano "did absolutely nothing to enhance the defamatory sting of the

message, to encourage defamation or to make defamation easier." 163

E. Craigslist

The plaintiffs in Chicago Lawyers ' Committeefor Civil Rights Under Law,
Inc. v. Craigslist, Inc.,

164
brought a claim similar to that in Roommates.com,

alleging that the defendant website was liable for violations ofthe FHA based on
the housing-related postings ofits users.

165 The content in Craigslist was not pre-
populated, but it was like some ofthe Roommates.com and Carafano content in
that it was formulated in response to "free-form" or essay prompts. 166 The court

154. Id.

155. Id.

1 56. Id. ; see also infra text accompanying notes 1 84-86.

157. See, 339 F.3d 1 1 19, 1 121 (9th Cir. 2003).

158. Id.

159. Id.

160. Id.

161. Carafano v. Metrosplash.com, Inc., 207 F. Supp. 2d 1055, 1067-68 (CD. Cal. 2002).

162. Carafano, 339 F.3d at 1 124.

163. Fair Hous. Council v. Roommates.com, L.L.C., 521 F.3d 1157, 11 72 (9th Cir. 2008) (en

banc) (emphasis added).

164. 519 F.3d 666 (7th Cir. 2008).

165. Mat 668.
166. See id.



158 INDIANA LAW REVIEW [Vol. 43: 143

found this was insufficient to make the website a creator or developer of the
offending content.

167 The court added, "[c]ausation in a statute such as [the
FHA] must refer to causing a particular statement to be made, or perhaps the
discriminatory content of a statement."

168 The court opined, "[n]othing in the
service [C]raigslist offers induces anyone to post any particular listing or express

a preference for discrimination."
169 Though not dispositive in its decision, the

court noted that the plaintiffhad many other potential defendants from which to
170

recover.
1

IV. Deficiencies in Current Judicial Applications of § 230

Courts have applied § 230 in website content cases in such a way as to create
an amorphous and unworkable standard forjudging creation or development of

content. Such an ad hoc standard increases the risk that future decisions could

erroneously reject a defendant's § 230 immunity defense in cases where the

defense is warranted. Pre-populated content presents special challenges for

courts because the question of whether the website "created or developed" the

content ultimately selected by the user is not easily resolved.
171 When the

website creates its drop-down interface, it authors every selection that appears

in the list,
172

but the user actually produces the ultimate content by selecting an

option from the list. This dichotomy yields the courts' dilemma. The problem
is particularly notable after the Roommates.com decision that set an example for
courts to look to the merits of the plaintiffs claim whenever the court finds it

advisable to protect social goals in conflict with the § 230 statutory language.

Although some ofthese goals may be worthy ofprotection, the courts are not the,
proper venue for doing so.

A. The Ambiguous Language ofCreation or Development

Website creation or development of content depends upon whether the

website "is responsible, in whole or in part, for the creation or development of

information."
173

If courts could easily measure responsibility, defining creation

167. Id. at 672.

168. Id. at 671.

169. Id.

170. Id. at 672.

171. See, e.g., Fair Hous. Council v. Roommates.com, L.L.C., 521 F.3d 1 157 (9th Cir. 2008)

(en banc). In this case involving drop-down selections, the majority and dissent differed strongly

on whether the user or the website "developed" the selected response. Compare id. at 1 1 66 ("[B]y

providing a limited set of pre-populated answers, Roommate becomes much more than a passive

transmitter of information provided by others; it becomes the developer, at least in part, of that

information."), with id. at 1 182 (McKeown, J., dissenting in part) (noting that "providing a drop-

down menu does not constitute 'creating' or 'developing' information").

172. See, e.g., Webmonkey.com, Build an Ajax Dropdown Menu, http://www.webmonkey.

com/tutorial/Build_an_Ajax_Dropdown_Menu (last visited May 24, 2009).
173. 47 U.S.C. § 230(f)(3) (2006) (emphasis added).



2009] THE COMMUNICATIONS DECENCY ACT 1 59

or development would be a relatively simple task. Unfortunately, responsibility

is a matter of degree as well as perspective, and courts have not always focused

clearly on this requirement.
174

Courts have used multiple terms in discussing creation or development and

have variously found that facilitating, weakly encouraging, classifying, and

making development marginally easier do not constitute creation or development

of content under § 230.
175

However, encouraging, actively encouraging, and

instructing users to provide particular content may strip a website ofimmunity .

'

76

This confusion, apparent across decisions, is present even within decisions.
177

For example, in finding the defendant not protected by § 230, the

Roommates.com court stated that the defendant did "much more than encourage
... it forces users to answer certain questions."

178
Oddly, the court later stated

that § 230 was properly applied in Carafano because the website in Carafano
"did absolutely nothing to enhance the defamatory sting of the message, to

encourage defamation or to make defamation easier." 179 Thus, the analysis aligns
"forcing" content choice with making the choice "easier," and unfortunately, it

does not provide much guidance as to what level of "encouragement" might be
acceptable. The apparent explanation for this contradiction in the court's
reasoning lies in its emphasis on the ultimately discriminatory result of

Roommate's mechanism. 180

174. See MCW, Inc. v. Badbusinessbureau.com, L.L.C., No. Civ.A.3:02-CV-2727-G, 2004
WL 833595, at * 1 n. 1 2 (N.D. Tex. Apr. 1 9, 2004) (noting that the statutory language only requires
a finding that defendant was responsible for information created or developed by a third party and

that "[sjome courts have ignored this distinction"); see also F.T.C. v. Accusearch, Inc., 570 F.3d

1 187, 1 198-99 (10th Cir. 2009) (conflating the concepts of responsibility and liability by stating,

"one is not 'responsible' for the development ofoffensive content ifone's conduct was neutral with

respect to the offensiveness of the content").

1 75

.

See Roommates,com, 52 1 F.3d at 1 1 74 (declaring that "weak encouragement cannot strip

a website of its section 230 immunity"); id. at 1 172 (quoting Carafano v. Metrosplash.com, 339

F.3d 1 1 1 9, 1 1 24 (9th Cir. 2003)) (noting that mere classification ofuser-provided information does

not constitute development ofthat information); Universal Commc'n Sys., Inc. v. Lycos, Inc., 478

F.3d 413, 420 (1st Cir. 2007) (finding that making it "marginally easier for others to develop and

disseminate misinformation" still falls within the immunityprovided by § 230); Carafano, 339 F.3d

at 1 1 24 (finding that an online questionnaire facilitating user expression did not run afoul of § 230).

176. See Roommates.com, 521 F.3d at 1171-72 (distinguishing non-immune website from

another website that did nothing to encourage the defamatory nature of its content); MCW, Inc. v.
Badbusinessbureau.com, L.LC, No. Civ.A.3:02-CV-2727-G, 2004 WL 833595, at *10 (N.D. Tex.
Apr. 19, 2004) (finding that "actively encouraging and instructing a consumer to gather specific

detailed information is an activity that goes substantially beyond the traditional publisher' s editorial

role").

177. See, e.g., Roommates.com, 521 F.3d at 1 172.

178. Matll66n.l9.

179. Id. at 1172.

180. See id. at 1 169 ("Roommate designed its search and email systems to limit the listings

available to subscribers based on sex, sexual orientation and presence of children.").



160 INDIANA LAW REVIEW [Vol. 43: 143

The Roommates.com court did, however, clearly equate content development
with solicitation when it posited, "Unlawful questions solicit (a.k.a. 'develop')
unlawful answers."

181
Again, the court focused on the merits of the underlying

discrimination claim by basing its finding on the ultimate illegality ofthe content
at issue.

182 Roommate was an information content provider with respect to the
questions it authored and, as such, was barred from asserting immunity under §
230 as to the questions.

183
Unlike any other cases addressing the issue, the

prompts, or the questions, were themselves arguably illegal.
184 The questions

encouraged the nature ofthe answers in part because Roommate provided such
limited selections in the drop-down boxes.

185
In that sense, then, the court's

reasoning that Roommate may have at least partially created the answers and
cannot claim immunity for them186 seems sound. It does not necessarily follow
that an answer to an FHA-violating question is also a violation ofthe FHA. As
a result, Roommates.com is the reverse of other cases where the prompt itself is
not illegal, but the result it encourages is.

The Roommates.com majority made an effort to resolve the apparent
ambiguities in its opinion when it explained its interpretation of "development"
under § 230 as "referring not merely to augmenting the content generally, but to
materially contributing to its alleged unlawfulness."

187
This statement leaves no

doubt that the court looked beyond the website's role as an information content

provider and into the nature ofthe content itselfwhen denying § 230 immunity.
Whether in the context offair housing, defamation, or any other possible website
content claims, such an approach is ill-suited to a question of immunity.

B. Preserving the FHA 's Aims by Amending § 230

Much ofthe § 230 commentary following the Roommates.com and Craigslist
decisions has focused on the conflict between the statute and the FHA. 188 By
concentrating so heavily on the fair housing aspect ofthe dilemma, the discourse

181. Mat 1166.
182. Id.

183. Id. at 1164 ("Roommate is undoubtedly the 'information content provider' as to the

questions. . . ."); accord id. at 1177 n.5 (McKeown, J., dissenting).

1 84. See id. at 1 164 (majority opinion).

185. See id. at 1165.

186. Mat 1166.
187. Mat 1167-68.
1 88. See Diane J. Klein & Charles Doskow, Housingdiscrimination.com?: The Ninth Circuit

(Mostly) Puts Out the Welcome Mat for Fair Housing Act Suits Against Roommate-Matching

Websites, 38 Golden Gate U. L. Rev. 329 (2008); Stephen Collins, Comment, Saving Fair

Housing on the Internet: The Casefor Amending the Communications Decency Act, 102 Nw. U.

L. Rev. 147 1 (2008); J. Andrew Crossett, Note, Unfair Housing on the Internet: The Effect ofthe

Communications Decency Act on the Fair Housing Act, 73 Mo. L. Rev. 195 (2008); Kevin M.

Wilemon, Note, The Fair Housing Act, The Communications Decency Act, and the Right of

Roommate Seekers to Discriminate Online, 29 WASH. U. J.L. & Pol'y 375 (2009).



2009] THE COMMUNICATIONS DECENCY ACT 1 6

1

has lost sight of the importance of the issue in non-fair housing contexts. The
FHA presents a unique conflict with § 230 and should be addressed
independently of other § 230 issues.

The FHA makes it unlawful to discriminate in the sale or rental ofdwellings
on the basis of "race, color, religion, sex, familial status, or national origin."

189

However, through what is known as the "Mrs. Murphy" exemption, 190 the statute
allows landlords or current tenants who will occupy the dwelling with the
prospective renter to discriminate in selecting tenants.

191 Most people using
websites like Roommates.com and Craigslist are in just this type of rental
situation.

192
Although the Mrs. Murphy exemption allows a roommate-seeker to

choose a roommate on any basis she desires, it does not provide an exemption
from the statutory mandate making it unlawful to make, print, or publish housing

advertisements expressing preferences based on protected characteristics

including race, sex, and familial status.
193

This mandate "expressly creates

publisher liability for those who disseminate discriminatory advertisements," 194

such as newspapers and similar media.

Although § 230 explicitly refuses website immunity for the violation of

federal criminal statutes and intellectual property law,
195

in its present form, the

statute provides immunity to those who would publish discriminatory housing
advertisements.

196 The Roommates.com court justified finding no § 230
immunity for Roommate by implying Congress provided only a limited scope of
immunity in the statute.

197 The court cautioned, "[w]e must be careful not to
exceed the scope of the immunity provided by Congress and thus give online

businesses an unfair advantage over their real-world counterparts, which must

comply with laws of general applicability."
198 The Ninth Circuit held that

because racial screening is prohibited when practiced in person, Congress could
not have wanted to make it lawful online. 199

By providing in § 230 that "[n]o provider or user of an interactive computer
service shall be treated as the publisher or speaker of any information provided

by another information content provider,"
200

Congress clearly intended to provide

immunity to Internet businesses whose counterparts in the print world would be

189. 42 U.S.C. § 3604(a) (2006).

1 90. See Klein & Doskow, supra note 1 88, at 334 (citing 1 14 CONG. Rec. 2495, 3345 ( 1 968)).
191. § 3603(b)(2).

192. Klein & Doskow, supra note 1 88, at 341

.

193. § 3604(c).

194. Klein & Doskow, supra note 188, at 335.
195. 47 U.S.C. § 230(e) (2006).

196. See id. § 230(c)(1).

197. See Hous. Council v. Roommates.com, L.L.C., 521 F.3d 1 157, 1 164 & n. 15 (9th Cir.
2008) (en banc) (noting that "[t]he Communications Decency Act was not meant to create a lawless

no-man's-land on the Internet").

198. A/. atll64n.l5.

199. Mat 1167.
200. § 230(c)(1).



162 INDIANA LAW REVIEW [Vol. 43:143

liable.
201

Publishers, such as newspapers, are subject to liability for unlawful

content in the print world.
202 As the Seventh Circuit acknowledged in Craigslist,

"nothing in § 230's text or history suggests that Congress meant to immunize an

ISP from liability under the Fair Housing Act. In fact, Congress did not even

remotely contemplate discriminatory housing advertisements when it passed §
23q "203 3ome have argUed this was mere congressional oversight.

204
Judge

Easterbrook, however, saw it differently:

[T]he reason a legislature writes a general statute is to avoid any need to

traipse through the United States Code and consider all potential sources
of liability, one at a time. The question is not whether Congress gave
any thought to the Fair Housing Act, but whether it excluded § 3604(c)

from the reach of § 230(c)(1).
205

The Roommates.com court argued that Congress could not have intended to
exempt the Fair Housing Act from § 230's scope.

206 The court then implicitly
acknowledged Congress's stated purposes of promoting "the continued

development of the Internet" and preserving "the vibrant and competitive free

market that presently exists for the Internet . . . unfettered by Federal or State
regulation."

207 The court felt it necessary to argue against these statutory
objectives by stating, "[t]he Internet is no longer a fragile new means of
communication that could easily be smothered in the cradle by overzealous

enforcement of laws and regulations applicable to brick-and-mortar

businesses."
208 The result was to subtly re-write § 230 from the bench,

presumably to protect the civil rights objectives of the FHA. These objectives
include educating the public about the FHA's protections, eliminating "steering"
of minorities away from housing in certain locations, and eliminating the
exclusionary atmosphere created by discriminatory housing advertisements.

209

Undoubtedly, these objectives are worthy ofprotection and amending the statute

to make the FHA a specified exception to the reach of § 230 immunity is the best
way to accomplish this end.210 Congress, rather than the courts, must rewrite the

201. See Zeran v. Am. Online, Inc., 129 F.3d 327, 330-31 (4th Cir. 1997).

202. See, e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 345-46 (1974) (finding a magazine

publisher liable for an author's defamatory article).

203. Chi. Lawyers' Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 5 1 9 F.3d 666,

671 (7th Cir. 2008).

204. See Jennifer C. Chang, Note, In Search ofFairHousing in Cyberspace: The Implications

ofthe Communications Decency Actfor Fair Housing on the Internet, 55 STAN. L. REV. 969, 993

(2002).

205. Craigslist, 519 F.3d at 671.

206. Fair Hous. Council v. Roommates.com, L.L.C., 521 F.3d 1157, 1164 (9th Cir. 2008) (en

banc).

207. 47 U.S.C. § 230(b)(l)-(2) (2006).

208. Roommates.com, 521 F.3d at 1 164 n. 15.

209. See Klein & Doskow, supra note 188, at 340-48.
210. See Collins, supra note 1 88, at 1495; see also James D. Shanahan, Note, Rethinking the



2009] THE COMMUNICATIONS DECENCY ACT 1 63

law.
211

Regardless of how the issue is resolved in the FHA arena, drop-down lists,
checkboxes, and the like will continue to have definite implications under § 230

as "creation or development ofinformation"
212

in a variety oflegal contexts, such

as defamation, negligence, and freedom of speech.
213

Courts must have a

mechanism to deal with creation or development of pre-populated content in
these other contexts.

V. Devising a "Creation or Development" Standard
for Pre-populated Content

Although the broad, Zeraw-based interpretation of§ 230
214 may work well for

most types of Internet content,
215

it falls short when applied to drop-down lists
and other pre-populated content. In the case of pre-populated content,

responsibility for creation or development ofinformation is particularly difficult

to discern because the website authored the choices available to the user.

Website operators and courts alike need a reliable standard for assessing when
a website providing pre-populated or otherwise limited content selections crosses

the line into becoming an information content provider.

A. Potential Methods to Determine Website Liability

for Pre-populated Content

Several possibilities exist for crafting a workable standard, ranging anywhere

from absolute website immunity to strict liability for any pre-populated content

a website offers. Each ofthese alternatives has both advantages and limitations.

1. BroadImmunity.—One liability scheme for pre-populated content would
be to apply § 230 protection any time the third party user makes the ultimate
content selection. This system would allow websites to "encourage" or "solicit"
content without incurring liability, essentially eliminating liability for all content

pre-populated by the website.
This solution has appeal because it reflects our physical, brick-and-mortar

world sensibilities ofindividual responsibility and decisionmaking. For instance,

taunting a person to jump into a water-filled trench does not make the taunter

Communications Decency Act: Eliminating Statutory Protections of Discriminatory Housing

Advertisements on the Internet, 60 FED. COMM. L.J. 135, 154 (2007).

211. U.S. Const, art. I, § 1 ("All legislative powers herein granted shall be vested in a

Congress of the United States, which shall consist of a Senate and House of Representatives.").

212. § 230(f)(3).

213. Amending § 230 to accommodate the FHA will have no effect on claims based on other
causes ofaction such as defamation, negligence, or the violation ofconstitutional rights. See, e.g.,

supra notes 64-66.

214. See supra notes 45-53 and accompanying text.

215. Seegenerally, Ziniti, supra note 1 (describing the more interactive nature ofthe modern

Internet and discussing the problems with applying the current liability system to it).



1 64 INDIANA LAW REVIEW [Vol. 43 : 1 43

liable for the person's drowning ifthe person does indeedjump.
216

Further, such

a clear solution provides a brightline rule that would be easy for courts to apply,
and it provides certainty for the interactive computer services Congress sought

to protect through § 230.

Allowing complete immunity for all "encouragement," however, fails to

recognize that encouragement is a matter of degree. When the user is left with
no choices but those provided by the website, and none ofthem are satisfactory,
it is difficult to claim his selection is solely her responsibility. Although taunting

a person to jump off a cliff would not produce liability, pushing her off the cliff
would, and putting her in a position where he has no real choice but tojump very
well might produce liability.

217 The willingness of the user seems to be a key
ingredient; even Carafano, a decision that could be characterized as a high-water

mark of § 230 immunity, required that the "third party willingly provide[] the
essential published content" for the website to receive full immunity.

218

Further, such sweeping immunity would leave many plaintiffs without
recourse for their harms. The third party posters of information are often
unknown to plaintiffs,219 and those known are frequentlyjudgment-proof.220 The
Seventh Circuit acknowledged this consideration in the § 230 context when it
noted that the Craigslist defendant had many other identifiable "targets" from
which to seek damages.

221

In addition, immunity of this breadth does not square with the statutory

language.
222

Section 230 provides that a computer service shall not be treated as

the publisher of information "provided by another information content
provider."

223 The language defines a website as an "information content
provider" if the site creates or develops the information it provides.

224
Congress

could have provided immunity for all website-created or developed information

by either altering the definition of information content providers to exclude

interactive computer services, or by providing that a computer service shall not
be liable for information provided by any information content provider. If
Congress had intended to immunize computer service providers in all instances,

it would not have limited the content for which websites could claim immunity.
2. Make a Determination on the Merits ofthe Underlying Claim.—Before

determining if § 230 immunity applies, the court could make a preliminary

216. See Yania v. Bigan, 155 A.2d 343, 345 (Pa. 1959).

217. See id. at 346 (noting that a defendant has no duty to rescue unless the defendant placed

the victim in a "perilous position").

218. Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1124 (9th Cir. 2003) (emphasis

added).

219. See Patel, supra note 26, at 69 1

.

220. See, e.g., Doe v. GTE Corp., 347 F.3d 655, 656-57 (7th Cir. 2003).
22 1

.

Chi. Lawyers' Coram, for Civil Rights Under Law, Inc. v. Craigslist, Inc., 5 1 9 F.3d 666,

672 (7th Cir. 2008).

222. See 47 U.S.C. § 230(c)(1) (2006).

223. Id. (emphasis added).

224. See id. § 230(f)(3).



2009] THE COMMUNICATIONS DECENCY ACT 1 65

examination ofthe merits ofthe plaintiffs claim, refusing immunity for content

that appears to be unlawful. The Roommates.com court's repeated focus on the
discriminatory nature of the content indicates just such an examination.

225

Courts adjudicating defamation claims against anonymous speakers

frequently employ this type of approach.
226

Before subjecting an anonymous

speaker to public exposure, courts require some preliminary demonstration, such

as a prima facie showing, that the contested statement was defamatory.
227

The
approach works well in the anonymous speaker context because of the need to
balance the First Amendment rights ofthe speaker with the rights ofothers to be
protected from defamation.

Requiring a plaintiff to make a preliminary showing on the merits in § 230
cases would contravene the purpose of immunity. As the Supreme Court has
recognized, immunity entitles the possessor to avoid the action entirely; it means

"immunity from suit."
228 Even the Roommates.com court acknowledged the aims

of immunity include protecting defendants from both liability and from the

expense of defending against claims.
229

Moreover, forcing a preliminary

examination of the merits would put additional issues before the court,

unnecessarily consuming precious time in an already overburdened system.

In addition, requiring assessment of the merits would also defeat one of the

core purposes of § 230, that of "promoting] the continued development of the

Internet."
230 As courts and others have recognized, even non-meritorious claims

have the effect of chilling free expression.
231 A website forced to defend on the

merits even before it can invoke statutory immunity is more likely to restrict the

content options it offers users reducing the range of information on its site.
232

This scenario would be particularly troubling in the case of pre-populated

content. As any casual Internet user can attest, drop-down boxes and similar
interfaces have become ubiquitous online. It does not tax the imagination to
conclude that these types of interfaces have been critical in the evolution of

Internet commerce, as well as to the development of sorting and matching

mechanisms, both of which comprise a large part of today's Internet

225. See Fair Hous. Council v. Roommates.com, L.L.C., 521 F.3d 1 157, 1 164-68 (9th Cir.

2008) (en banc).

226. See, e.g., Krinsky v. Doe 6, 72 Cal. Rptr. 3d 231, 245 (Ct. App. 2008).

227. Id.

228. Cf Lauro Lines S.R.L. v. Chasser, 490 U.S. 495, 499-500 (1989) (noting that court

decisions against a defendant's immunity are immediately appealable under the collateral order

doctrine).

229. Roommates.com, 521 F.3d at 1174-75 ("We must keep firmly in mind that this is an

immunity statute we are expounding .... [It] must be interpreted to protect websites not merely

from ultimate liability, but from having to fight costly and protracted legal battles.").

230. See 47 U.S.C. § 230(b)(1) (2006).

23 1

.

See Barrett v. Rosenthal, 146 P.3d 5 1 0, 525 (Cal. 2006); see also Lyrissa Barnett Lidsky,

Silencing John Doe: Defamation & Discourse in Cyberspace, 49 DUKE L.J. 855, 890 (2000).
232. Cf Zeran v. Am. Online, Inc., 129 F.3d 327, 331 (4th Cir. 1997) ("The specter of tort

liability in an area of such prolific speech would have an obvious chilling effect.").



1 66 INDIANA LAW REVIEW [Vol. 43 : 1 43

functionality.
233

3. Strict Liability for Pre-populated Content.—Another approach to the
issue of responsibility for creation or development of content would be to
construct a bright line rule, finding that all pre-populated content is the creation

of the website, regardless of the user's selection process.

Finding the website strictly liable for pre-populated content has some
intuitive appeal because the website is the author in fact of every selection it

makes available in a drop-down list. It seems logical that if a website provides
an array of choices, knowing the user must select one of them, the website is at
least partly responsible for developing the final product. This approach makes
more sense than basing immunity on ultimate lawfulness ofthe content because
whether the ultimate selection is lawful or unlawful has nothing to do with the

selection process itself. In determining whether a website is an information

content provider and thus not protected by § 230, courts must examine the
website's role in the creation or development of the content, not the content

itself. To hold that the lawfulness of the content determines the website's role
in its development is backwards.

Further, the congressional intent of § 230 arguably dovetails with a strict

liability approach to pre-populated content. As the Roommates.com court
correctly notes, a website need only develop the content "in part" to lose § 230

immunity.
234

Also, interpreting the statute to provide immunity only to computer

services that screen or remove offensive content
235 means websites that do not

screen risk nearly limitless liability, consistent with a strict liability approach.

Strict liability for pre-populated content has several pitfalls. First, it carries

the risk ofcreating liability in cases where the situation clearly does not warrant

it. For example, where a website asking a user for his date of birth provides a

drop-down list ofyears and a minor user selects a year indicating he is an age of

majority, the website could be liable for the fraudulent result. Strict liability

could also result in unwarranted liability for dating websites like that in

Carafano, where the user produced a defamatory result not because the drop-

down options he selected were defamatory, but because he created a dating
profile for a woman without her permission, and the profile completely

233. Cf. Janie J. Heiss, Droplets Platform Brings GUIs to the Internet, Aug. 15, 2002,

http://java.sun.com/features/2002/08/droplets.html (asserting that prior to the development of

Apple-style GUIs, web-based applications were substantially less productive); The Linux

Information Project, GUI Definition, supra note 1 7 (discussing the importance of GUIs in the

development of browsers).

234. Roommates.com, 521 F.3d at 1 165-66; see also § 230(f)(3); Glad, supra note 1 1, at 259-

60.

235. See Roommates.com, 521 F.3d at 1163-64; see also Rachel Kurth, Note, Striking a

Balance Between Protecting Civil Rights andFree Speech on the Internet: The Fair HousingAct

vs. The Communications DecencyAct, 25 CARDOZOARTS&ENT. L.J. 805, 835-36 (2007) (positing
that § 230 should be read to provide immunity for internet housing services only when those

services have made good faith screening or blocking efforts against FHA violations).



2009] THE COMMUNICATIONS DECENCY ACT 1 67

mischaracterized her.
236 Even the Roommates.com court said Carafano reached

the "unquestionably correct result" in holding defendant Matchmaker.com

immune under § 230.
237

Another difficulty with strict liability is that it eliminates the court's ability

to examine the nuances presented by a particular piece of content in context.

This risk is particularly evident in cases of defamation, where the ultimate

determination of liability depends upon the truth of the statement at issue and

whether a reasonable person would have believed it or understood it as

exaggeration or hyperbole.
238

For instance, the term "prostitute" could be used

to refer accurately to a person's profession or to simply characterize a person

negatively. In the first case, the use may be appropriate and would not subject
the speaker to liability.

239
In the second case, the characterization could easily

be interpreted as defamatory.
240

Further, Congress did not intend a strict liability approach to pre-populated

content. Strict liability runs counter to the spirit of § 230, by creating liability for

restriction ofcontent. The statute expressly protects content-restrictive actions

such as blocking and filtering.
241

For example, a website may employ drop-
downs or check-boxes, as opposed to free-form text boxes, in order to keep the
final product within the bounds of propriety. It hardly seems reasonable that

such a website should be liable if the user manipulates the site's restrictions into

an unlawful result.

In addition, Congress's inability to predict how the Internet would develop
is precisely the reason to leave immunity intact; Congress explicitly designed §
230 "to promote the continued development ofthe Internet and other interactive

computer services and other interactive media."
242 Drop-down lists and the like

have undoubtedly improved the efficiency and convenience of Internet use and

have become essential to today's Internet functionality. If courts apply strict
liability to this technology, countless new and yet unseen developments may be
stifled.

Lastly, the legislative history reveals that when Congress passed the Dot Kids

236. See Carafano v. Metrosplash.com, Inc., 339 F.3d 1 1 19, 1 121, 1 124 (9th Cir. 2003).

237. Roommates.com, 52 1 F.3d at 1 1 7 1 . The court, however, expressly corrected its "unduly

broad" suggestion in Carafano that the website "could never be liable because 'no [dating] profile

has any content until a user actively creates it.'" Id. (quoting Carafano, 339 F.3d at 1 124 (brackets

in original)).

238. See Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990); Batzel v. Smith, 333 F.3d

1018, 1031 n.17 (9th Cir. 2003); Lidsky, supra note 231, at 874-75 (2000).

239. Cf New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964) (discussing the
defense of truth and extending it, in the case of statements about public officials, to include false

statements made without "actual malice").

240. Cf Neiman-Marcus v. Lait, 1 3 F.R.D. 311,316 (S.D.N.Y. 1 952) (holding that department

store salesmen had a valid cause of action for defamation against book authors who had

characterized them as "fairies").

241. 47 U.S.C. § 230(c) (2006).

242. Id § 230(b)(1).



168 INDIANA LAW REVIEW [Vol. 43: 143

Implementation and Efficiency Act in 2002,
243

it explicitly affirmed the broad,

Zeran-based interpretation of § 230 by stating that "[t]he courts have correctly

interpreted section 230(c)" to protect against claims like those presented in

Zeran.
244

If Congress has since changed its mind, it is more than capable of
amending § 230 to narrow the scope of immunity. For instance, 2008 saw the

introduction of legislation modifying the Fair Housing Act to allow the display

of religious symbols, in an effort to nullify the effect of a Seventh Circuit

decision upholding a condominium's prohibition ofreligious symbol displays in

residents' doorways.
245

In fact, it was just this sort of effort that provided the
impetus behind § 230.

246

4. "Active Inducement" Test.—Two courts that favored liability for
"encouraging" content also briefly referred to the concept of "inducement."

247

Craigslist noted "[njothing in the service [C]raigslist offers induces anyone to

post any particular listing or express a preference for discrimination."
248

Roommates.com also fleetingly mentioned the concept: "The CDA does not grant
immunity for inducing third parties to express illegal preferences."

249
Although

these courts did not expound on the idea, the UniversaP
50

court discussed

whether "active inducement" of particular content might remove a website's

blanket of § 230 immunity.
251

Notably, the Supreme Court recently applied this

concept, which originated in patent law,
252

in the Internet copyright violation case

243. Dot Kids Implementation and Efficiency Act of 2002, 47 U.S.C. § 941 (2006).

244. See H.R. Rep. No. 107-449, at 13 (2002), reprinted in 2002 U.S.C.C.A.N. 1741, 1749

("The courts have correctly interpreted section 230(c), which was aimed at protecting against

liability for such claims as negligence " (citations omitted)); see also Barrett v. Rosenthal, 146

P.3d 510, 523 (Cal. 2006); Collins, supra note 188, at 1489.

245

.

See Douglas Wertheimer, Illinois, Then Florida, Is Texas Next?, Cffl. JEWISH STAR, Apr.

3, 2009, at 3, available at 2009 WLNR 7194045 (discussing, inter alia, the Freedom ofReligious
Expression in the Home Act of2008, H.R. 6932, 1 10th Cong. (2008), that was designed in part to

overturn Block v. Frischholz, 533 F.3d 562, 565 (7th Cir. 2008) (upholding dismissal of a

condominium resident's claim ofreligious discrimination based on condominium association's rule

prohibiting placement of any objects outside owners' doors, which included plaintiffs display of

a mezuzah)).

246. See H.R. Rep. No. 104-458, at 194 (1996) (Conf. Rep.), reprinted in 1996 U.S.C.C.A.N.

10 ("One of the specific purposes of this section is to overrule Stratton-Oakmont v. Prodigy and

any other similar decisions which have treated such providers and users as publishers or speakers

of content that is not their own because they have restricted access to objectionable material.").

247. See Chi. Lawyers' Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d

666, 671 (7th Cir. 2008); Fair Hous. Council v. Roommates.com, LLC, 521 F.3d 1 157, 1 165 (9th

Cir. 2008) (en banc).

248. Craigslist, 519 F.3d at 671 (emphasis added).

249. Roommates.com, 521 F.3d at 1 165 (emphasis added).

250. Universal Commc'n Sys., Inc. v. Lycos, Inc., 478 F.3d 413 (1st Cir. 2007).

251. See id. at 421.

252. See 35 U.S.C. § 27 1 (b) (2006) ("Whoever actively induces infringement ofa patent shall

be liable as an infringer.").



2009] THE COMMUNICATIONS DECENCY ACT 1 69

MGMStudios, Inc. v. Grokster, Ltd. 2531
In Grokster, the Court held a purveyor of online file-sharing software "who

distributes [the software] with the object of promoting its use to infringe

copyright, as shown by clear expression or other affirmative steps taken to foster
infringement, is liable for the resulting acts of infringement by third parties."

254

In examining the terminology, the Court noted that one induces infringement by
enticing or persuading another to infringe.

255 The infringer must possess an
affirmative intent that the product be used to infringe, which can be demonstrated

when he advertises the infringing use or provides instruction on it. 256

The Universal court applied the Grokster copyright inducement standard in
the Internet defamation context.

257 The court found the defendant website, by
providing a link to damaging information created by a third party, exhibited no
"unlawful objective" in the construct of its website that would satisfy the
requirement for inducement.

258
However, the court based its ultimate holding for

the defendant on other grounds, noting that it was not clear that a claim premised
on active inducement could be consistent with § 230.

259

At least one commentator has attempted to craft an active inducement test to
replace § 230.

260
Like the Lycos application of the concept, this version hews

close to the original test, which asks whether the defendant induced the

infringing or illegal use, by analyzing whether the website asked or induced the
third party to provide unlawful content.

261

An inducement test may be useful in the context of website liability for
Internet content, but courts would have to adapt it to coexist with § 230. If
applied as suggested to date, such a test would automatically force examination
of the merits of the underlying claim by focusing on the legality of the content

at issue. This type of premature examination of the merits guts the meaning of

"immunity" and essentially renders § 230 inoperative.
262

Instead, an inducement test could be used to clarify the meaning of"creation

or development"
263

of content within the context of § 230. For instance, when
assessing whether a website created particular content, a court could examine

253. See 545 U.S. 913(2005).

254. Mat 9 19.
255. Id. at 935 (quoting Black's Law Dictionary 790 (8th ed. 2004)).
256. Id at 936.

257. See Universal Commc'n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 420-21 (1st Cir. 2007).

258. Id. at 421.

259. Id.

260. See Zac Locke, Comment, AskingforIt: A Grokster-basedApproach to Internet Sites that

Distribute Offensive Content, 18 SETON Hall J. SPORTS & ENT. L. 151 (2008); see also Ziniti,
supra note 10, at 608 (exploring and rejecting an "affirmative steps" standard on the basis that it

would excessively chill speech).

26 1

.

See Locke, supra note 260, at 1 70.

262. See supra Part V.A.2.

263. 47 U.S.C. § 230(f)(3) (2006).



170 INDIANA LAW REVIEW [Vol. 43:143

whether the website advertised for, demonstrated the use of, or profited from
264

that particular content, regardless of whether the content was lawful or not.
Inducement, with its established meaning in the patent and copyright

contexts, would be a better test for whether a website created or developed
content than Roommates.com 's nebulous "encouragement" standard.265 When
applied to pre-populated content, however, the inducement standard falls short.

Due to the very nature ofpre-populated content, it is in essence "advertised" by
the website that developed it as a possible, ifnot "recommended" selection by the
user. In that sense, all user-selected pre-populated content is "induced" by the

website, leaving no § 230 protection for any content of this type.

B. The Solution: A "Safe Harbor"-style Rebuttable Presumption

Instead of applying an ill-fitting standard designed for another purpose, or

resorting to extremes of either pure immunity or strict liability, determining

responsibility for creation or development of pre-populated content demands a
unique approach. Courts should develop a new standard, incorporating facets of
the above suggestions, to provide protection for websites offering pre-populated

content.

A "safe harbor" is an "area or means ofprotection," typically a statutory or
regulatory provision "that affords protection from liability."

266
This proposal

should not be confused with some commentators' proposed "notice-and-
takedown" safe harbor modeled on the Digital Millennium Copyright Act
(DMCA).267 The DMCA allows Internet service providers to escape liability for
copyright-infringing material posted by third-party users if the website has

neither actual knowledge of infringement nor awareness of facts that make
infringement apparent, and the website expeditiously removes the content upon
notification ofclaimed infringement.

268
Notice-and-takedown liability, therefore,

is quite similar to distributor liability.
269

Courts and commentators alike have

rejected both types of knowledge-based liability in the context of § 230.
270

The "safe harbor" concept is appropriate for pre-populated content because

264. See MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 940 (2005) (recognizing
defendant's revenue increased based on use of the software at issue, and noting this as supporting

evidence for an inference of defendant's intent to promote that use).

265. See Fair Hous. Council v. Roommates.com, L.L.C., 521 F.3d 1 157, 1 171-72 (9th Cir.

2008) (en banc).

266. Black's Law Dictionary 1363 (8th ed. 2004).
267. See 17 U.S.C. § 512 (2006); see also Ziniti, supra note 10, at 603 n.121.

268. See§ 512(c)(1).

269. Cf. Ziniti, supra note 1 0, at 60 1 -04 (comparing the common law "knowledge" standard

for distributors with the DCMA "knowledge" standard).
270. See Barrett v. Rosenthal, 146 P.3d 5 10, 5 14, 520 (Cal. 2006); Locke, supra note 260, at

160; Ziniti, supra note 10, at 604-05. But see Batzel v. Smith, 333 F.3d 1018, 1031 n.19 (9th Cir.

2003) (suggesting notice-and-takedown liability as a solution to the problems posed by the broad

immunity conferred on ISPs by § 230).



2009] THE COMMUNICATIONS DECENCY ACT 1 7

1

the website is the actual author ofpre-populated selections it offers. Because it

is illogical to conclude a website is not responsible for creating or developing its

own pre-populated content, a presumption of no immunity is proper. Such a
presumption should be rebuttable, however, ifthe defendant can demonstrate that

he meets certain provisions allowing § 230 immunity to be extended to the pre-

populated content at issue. This approach would most logically be a regulatory
undertaking,

271
perhaps under the auspices of the FCC. Some proponents

advanced a regulatory approach in the legislation that eventually became § 230,
but Congress rejected it for fear it would not effectively address the problem,
would impede the growth of technology, and "threaten the future of the
Internet."

272
Today, neither the FCC nor any other body comprehensively

regulates the Internet.
273

Absent any regulatory framework for such a safe

harbor, courts must create their own guidelines. As guidelines, none of the
factors below should be dispositive, but courts should consider them all when
analyzing liability for pre-populated content.

1. Number andNature ofSelections Available to the User.—The number of
selections the website provides, and the general tone of the selections, are

important indicators ofwhether particular answers are "forced" or "encouraged."

The ultimate consideration here is the extent to which the user's power ofchoice
is restricted. A limited number of selections, as in Roommates.com™ may
indicate the user had little room to choose a suitable option, whereas a lengthy
list of options, as in Whitney?

15
provides the user substantially more freedom.

The answer to this question should be considered in light ofthe type ofresponse
requested. For example, ifthe prompt asks for the user to select a color, a limited

listing of selections may be entirely appropriate. If, on the other hand, the
prompt asks for a more descriptive or opinion-based answer, such as a feeling or
characterization, then more options might be necessary. In addition, the nature
of the offered selections should be considered. Where the options provided are
all ofthe same general type, the user's power to choose is not a broad as it would
be where a range ofoptions is provided. For instance, ifasked to characterize an

experience, ifthe user is provided "positive" as well as "negative" selections, the

options are less likely to "steer" the user to a particular outcome.

Another consideration in this context is precisely how the drop-down

27 1

.

Thanks to Professor Wright for this suggestion.

272. See Chang, supra note 204, at 989 (citing 141 Cong. REC. H8470 (daily ed. Aug. 4,

1995) (statement of Rep. Cox)).

273

.

See generally JACK GOLDSMITH& TlM Wu, WHO CONTROLS THE INTERNET?: ILLUSIONS
of A Borderless World (2d ed. 2008) (Though no universal regulation exists, nations use a
patchwork of mechanisms in an attempt to exercise varying degrees of control over Internet

activities within their borders.). Whether comprehensive Internet regulation is desirable or even

possible is a matter of great debate and is beyond the scope of this Note.

274. See Fair Hous. Council v. Roommates.com, LLC, 521 F.3d 1 157, 1 165 (9th Cir. 2008)

(en banc).

275. See Whitney Info. Network, Inc. v. Xcentric Ventures, L.L.C., No. 2:04-cv-47-FtM-

34SPC, 2008 WL 450095, at *10 (M.D. Fla. Feb. 15, 2008).



172 INDIANA LAW REVIEW [Vol. 43:143

selections are populated. In a static drop-down list, the website designer pre-

populates the selections available to the user. A dynamic drop-down list works
differently, in that the selections the user ultimately sees are dependent upon
some other input, such as the user's selection in a prior list.

276
For instance, the

first drop-down provides a list of states, and the second provides a list of the

counties in the state selected from the first list. This type ofconfiguration could

weigh either for or against website responsibility for the content, depending on

the situation. It might appear that if a user's selection results in a narrowing of

her later selections, the user is more responsible for the later selections than the
website is. However, when the website employs assumptions about user choices
in configuring the second list, the reverse may be true. Imagine a web page
where first box asks for a gender selection, and the second box, which asks for

a color selection is designed by the website to list only pastels if the first
selection is female and to list only bold colors if the first selection is male. In

such an instance the website has narrowed the user's choices on the basis of a

general sex-based assumption, and has undertaken a greater level of

responsibility for the ultimate selection.

2. User 's Ability to Forgo Making a Selection.—Whether a user can opt out
of any particular selection may bear on the voluntariness of any selection she
makes, particularly where the website provides a limited number of options to
choose from. If the user must choose a response to every prompt, he may be
forced to select a response with which he does not necessarily agree.

Conversely, a mechanism such as an option of "no selection made" in a drop-
down list, would allow a user to bypass a selection where he finds none of the
website-provided options satisfactory. An alternative to allowing a user to make
no selection may be for the website to provide an "other" category where the user
is permitted to fill in a blank with her own language if none ofthe site-provided
options is suitable.

When assessing the impact ofwhether the user can forgo making a selection,
courts should consider how critical the particular prompt is to the overall purpose
ofthe website. A website whose primary purpose is to match user profiles on the
basis of sex is not likely to be useful to a user who refrains from specifying her
sex. In this situation, the user who makes no sex selection is denied the very
service he sought by using the website. In order to receive the value promised
by the website, the user may be, in essence, forced to choose an unsatisfactory
option. The same problem occurs if the user fills in her own response, if the
website's sorting or matching mechanism is not capable ofincorporating filled-in
responses.

3. CommercialPurpose ofa Particular Selection.—Where a website ties its
revenue to users making particular choices, an inference that the website is

responsible for those choices may be proper. If the user's selection of choice A
over choice B has no bearing on the site's commercial success, the website has

276. See Plus2Net.com, Dynamic Populating the Drop Down List Based on the Selected Value

ofFirst List, http://www.plus2net.com/php_tutorial/php_drop_down_list.php (last visited Oct. 30,

2009).



2009] THE COMMUNICATIONS DECENCY ACT 1 73

no financial incentive to encourage any particular choice. If, on the other hand,
a website derives more income when the user chooses A over B, it is logical to
conclude the site has a stake in the outcome ofthe user's selection and therefore
encourages it. Such a connection may be tenuous, and courts should consider it
only where there is other evidence to support website responsibility for the
content choice.

4. No Conceivable Innocent Purpose.—If the website knows or reasonably
should know the user has no legitimate use for the selections it provides, liability
should naturally follow. The website could be compared to "the seller of sugar
to a bootlegger, [who] must have known that the customer had no legitimate use
for the service."

277
This corresponds to the "contributory infringement" theory

of liability in patent law.
278 As with active inducement liability, the intent of the

website should enter into the safe harbor analysis.
279

Roommates.com provides
an example of a situation in which intent could be considered in the context of
pre-populated content.

280 No conceivable innocent purpose might be
demonstrated in a situation like that in Roommates.com, where the prospective
landlord must disclose either "children present" or "children not present" when
developing the rental listing.

281 When advertising rental housing, no innocent
purpose exists for indicating familial status; the only conceivable purpose is to

indicate a familial status-based preference or limitation in renting the dwelling,

in violation of the FHA.282

5. Existence ofCautionary Instructions or Disclaimer.—A website that is
serious about avoiding liability for unlawful content is likely to instruct its users

on what type of content may be properly posted and will clearly indicate that all
liability for violations resides with users. A website will strike a balance here
between providing the proper cautions and keeping the website user-friendly. A
lengthy and cumbersome process for user acceptance of the instructions is not
preferable because users will be likely to abort the process. However, burying
the cautions in fine print in the middle ofa lengthy user agreement will likely not

indicate a website's desire to reduce violations, and users will be inclined to
simply click through the required screens without reading them. A short, non-
exhaustive statement describing unlawful content and discussing liability,

277. Doe v. GTE Corp., 347 F.3d 655, 659 (7th Cir. 2003).
278. See 35 U.S.C. § 271(d) (2006) (making a seller of a component of a patented machine

liable for patent infringement if he knows the product is especially made for infringing use and is

not capable of substantial noninfringing use); Sony Corp. of Am. v. Universal City Studios, Inc.,

464 U.S. 417, 439-40 (1984).

279. See Recent Cases, InternetLaw—Communications DecencyAct—FederalDistrict Court
Denies § 230 Immunity to Website that Solicits Illicit Content.—FTC v. Accusearch, Inc., No. 06-
cv-105, 2007 WL 4356786 (D. Wyo. Sept. 28, 2007), 121 Harv. L. REV. 2246 (2008) (arguing for
a mens rea-based exception to § 230 immunity).

280. Fair Hous. Council v. Roommates.com, LLC, 521 F.3d 1 157, 1 165 (9th Cir. 2008) (en

banc).

281. Id.

282. 42 U.S.C. § 3604(c) (2006).



174 INDIANA LAW REVIEW [Vol. 43:143

particularly ifin bold font and requiring a separate acknowledgment, would serve
the purpose without discouraging legitimate users.

Courts have contributed to the ambiguities surrounding creation or

development ofcontent under § 230, and courts have the capacity to clarify what

they have wrought. The safe harbor-style rebuttable presumption provides courts
with a practical mechanism to judge creation or development of pre-populated
content, and provides guidance to websites in crafting their pre-populated

content.

Conclusion

As the Internet has expanded, so have the content options available to
websites and users. Because § 230 ofthe Communications Decency Act does not
provide website immunity for content a website created or developed, pre-

populated content poses particular problems for courts applying § 230. When a
website provides a drop-down list of selections from which a user must choose,

it is difficult to argue that the website did not create, at least in part, the ultimate

content choice. To hold that websites are creators of pre-populated content,
however, would strip them of § 230 immunity in situations where immunity is
warranted. The unique nature of pre-populated content demands a novel
approach by courts and requires consideration ofmultiple factors, many ofwhich
do not apply when considering other types of content. Only through crafting of
such a multi-faceted approach will pre-populated content be offered the immunity

Congress intended.