No. 13-5946
Jones v. Dirty World Entm’t Recordings, et al.
Page 14
By contrast, an overly exclusive interpretation of “development” would exclude all the
publishing, editorial, and screening functions of a website operator from the set of actions that
the term denotes. Some courts have implied this interpretation, however. See, e.g., Doe v.
SexSearch.com, 502 F. Supp. 2d 719, 727 (N.D. Ohio 2007), aff’d, 551 F.3d 412 (6th Cir. 2008).
But we have refused to adopt it. See Doe, 551 F.3d at 415 (“[W]e do not reach the question of
whether the [CDA] provides SexSearch with immunity from suit. We do not adopt the district
court’s discussion of the Act, which would read § 230 more broadly than any previous Court of
Appeals decision has read it, potentially abrogating all state- or common-law causes of action
brought against interactive Internet services.”). We have maintained that, despite the CDA, some
state tort claims will lie against website operators acting in their publishing, editorial, or
screening capacities.
Therefore, limited circuit precedent suggests the proper interpretation of “development of
information provided through the Internet,” § 230(f)(3), means something more involved than
merely displaying or allowing access to content created by a third party; otherwise § 230(c)(1)
would be meaningless. And instances of development may include some functions a website
operator may conduct with respect to content originating from a third party. See SexSearch.com,
551 F.3d at 415.
Beyond providing a basis to identify overly inclusive and exclusive interpretations of
“development” in § 230(f)(3), our cases have not further illuminated the scope of the immunity
furnished by the CDA. Decisions from our sister circuits, however, provide a workable measure
of “development” that not only preserves the broad immunity the CDA provides for website
operators’ exercise of traditional publisher functions but also highlights the limited
circumstances under which exercises of those functions are not protected. The leading case is
Roommates. There, the Ninth Circuit sitting en banc discussed the meaning of “development” at
length. See 521 F.3d at 1167−68. In Roommates, as a condition for using an online roommatefinding service, a website required each user seeking to offer living space to create a profile
describing his desired roommate and, in so doing, required that user “to disclose his sex, sexual
orientation and whether he would bring children to a household.” Id. at 1161. The website also
encouraged its users to provide additional comments describing themselves and their desired
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