to be Reheard En Banc. Online publishers of user-generated content such as websites hosting blogs, forums or message boards have traditionally been offered broad immunity under the Communications Decency Act (“CDA”). In May, the Ninth Circuit notably limited this broad immunity in, holding that the defendant website “created or developed” the questionnaire forms and answer choices used when a member joins the site, making it a content provider rather than a mere publisher of another’s content. The court held that also “channeled” that information based on members’ answers by allowing them to search only the profiles of others with compatible preferences. In categorizing, channeling, and limiting the distribution of profiles, Roommate was more than a passive pass-through of information. Thus, the court denied it CDA immunity.

However, the Ninth Circuit on October 12 decided to rehear en banc, thus removing the precedential value of the prior three-judge opinion. Interpreting the decision to rehear is impossible beyond noting that a majority of the judges believe the case is important enough to warrant the rehearing.

Two other lower court cases from federal district courts in New York and Wyoming also offer noteworthy interpretations of the CDA.

New York District Court Offers Immunity to Search Engine. In Murawski v. Pataki, Case No. 06 Civ. 12965 (S.D. New York., Sept. 26, 2007), the court granted immunity to the defendant search engine, which published information originally posted on another website, Because of the way in which presented the information from Politics1 (removing the line feeds between stories), displayed search results which suggested that Murawski was a “Communist Political Organizer.” The straightforward analysis by the court held that was immune under the CDA against Murawski’s defamation claim. The decision suggests that other courts adopting the popular approach in interpreting the CDA – offering broad immunity to content providers – will not view automatic formatting changes to re-published content as changing the immunity status of an information content provider.

Wyoming District Court Denies Immunity to Personal Information Reseller. The other lower court case, FTC v Accusearch, Case No. 06-CV-105 (D. Wyoming., Sept. 28, 2007), makes it clear that CDA immunity does not apply to information which a party creates or develops. Accusearch offers for sale a variety of information, including records of telephone call details, GPS traces, social security numbers and similar information. Accusearch tried to characterize itself as merely a website connecting a network of "independent researchers" who provide that information to "searchers" who want information. The court rejected this characterization and was unpersuaded by the fact that various telephone companies had originally created the records. Instead, it found that by purchasing phone records from the "independent researchers" and reselling them to its customers, Accusearch participated in the creation or development of the records. Therefore, because it was publishing its content, CDA immunity was unavailable.

The boundaries of CDA immunity continue to shift and settle. The rehearing at least temporarily removes what was thought to be an outer limit of immunity (provider contribution to published content), while the two lower court cases illustrate that websites which incorporate user generated content should continue to carefully monitor how courts apply CDA immunity.