Interactive Computer Service Liability for User-Generated Content After Roommates.com

This Note explores the future of interactive computer service provider (ICSP) liability for user-generated content under the Communications Decency Act (CDA) after Roommates.com II. Roommates.com II held that a housing website was not entitled to immunity under § 230 of the CDA from federal Fair Housing Act claims, in part because providing preselected answers to a mandatory questionnaire rendered the site an “information content provider” at least partially responsible for creation or development of answers. After examining the historical and legislative origins of ICSP immunity for user-generated content under 47 U.S. C. § 230, this Note argues that courts should generally evaluate ICSP immunity from claims arising out of both entirely and partially user-generated content on the basis of whether the ICSP is the sole information content provider Section 230’s focus on which party “provides” the essential content and the statutory definition of “information content provider” support this interpretation. This Note further argues, however that Congress should amend § 230 to limit immunity in circumstances where the ICSP is an “information content provider” with respect to an objectionable housing advertisement and specifically redefine “information content provider” to include the use of ICSP created dropdown answers to ICSP required questions. This proposal is narrowly adapted to better serve the purposes of the Fair Housing Act and § 230 than the current statutory language because it defines the scope of immunity to balance the conflicting goals of the two statutes.