*1 has ar- argument, and he raised no other AFFIRM the dis-
guments appeal, we judgment.
trict court’s COMMISSION,
FEDERAL TRADE
Plaintiff-Appellee, INC., Abika.com;
ACCUSEARCH d/b/a
Jay Patel, Defendants-Appellants, Stoddart, Privacy
Jennifer Canada,
Commissioner
Amicus Curiae.
No. 08-8003. Appeals,
United States Court of
Tenth Circuit.
June *3 McNicholas, Sidley R. Austin
Edward LLP, DC, Washington, filed an amicus Stoddart, Privacy curiae for Jennifer brief Canada, support Commissioner Plaintiff-Appellee. HARTZ, TYMKOVICH, and
Before HOLMES, Judges. Circuit HARTZ, Judge. Circuit *4 Abika.com is a website that has sold data, telephone personal including various The Federal Trade Commission records. (FTC) against of brought operator suit website, Inc., presi- Accusearch and its owner, Jay (collectively, dent and Patel Accusearch), to curtail Accusearch’s sale of require confidential information and to disgorge profits the sale from in telephone records. alleged FTC that Accusearch’s trade (which telephone protected records are "§ under the Tele- disclosure 702 of Act of communications U.S.C. (2006)) § 222 practice constituted an unfair 5(a) § Trade violation of the Federal (FTCA), Act Commission 45(a) (2006). § granted The district court summary judgment, see FTC v. FTC Accusearch, Inc., 06-CV-105-D, No. (D.Wyo. Sept.28, WL at *10 2007), further entered briefing and after injunction restricting an fu- ture and other trade personal information. (Gay L. Deborah Roden Woodhouse briefs) (1) Gay her on appeal with Woodhouse On Accusearch contends that Office, P.C., WY, Cheyenne, Law for De- unfair-practice the FTC’s claim should fendants-Appellants. have been dismissed because broke had no no law because the FTC DeMille-Wagman, Attorney,
Lawrence authority to enforce the Telecommunica- Commission, Washington, Federal Trade (2) Act; tions it was immunized from suit (William Blumenthal, D.C., General Coun- by the in the protections provided websites sel, Daly, F. General Deputy John Counsel (CDA), Act Decency Communications Commission, Litigation, for Federal Trade (2006); injunction § U.S.C. 230 D.C.; Washington, Tracy S. Thorleif- resuming son, unnecessary prevent it from Kial Young, S. Federal Trade Com- mission, Seattle, WA, trade in records and is unconsti- with her on the brief), jurisdic- Plaintiff-Appellee. tutionally Exercising overbroad. reject ences,” traits,” “Personality we tion under 28 U.S.C. and “Rumors.” 1313; and af- each of Accusearch’s contentions Id. Vol. 4 id. 5 at Vol. First, an may conduct constitute firm. appeal Accusearch stresses on that the 5(a) unfair under the FTCA practice search services offered Abika.com were unlawful, even if it is not otherwise and the primarily provided by third-party services may practice an if pursue unfair even researchers, who required by were Accu- practice is facilitated violations provide they search to assurances that FTC, law not administered such as perform their work in accordance Second, the Telecommunications Act. Ac- applicable with law. The researchers had cusearch’s claimed under the CDA defense no direct contact with Abikaxom’s custom- fails it acted an “information as explains, ers. As Accusearch “all informa- (and provider” thus is not content entitled passed tion [customer] between and re- immunity) to the informa- respect through Abika.com, searcher went subjected liability tion under the intermediary.” Aplts. Br. In Reply at 3. 230(f)(3). See 47 Finally, FTCA. U.S.C. order, placing a search a customer paid injunction proper despite Accu- *5 fee,” Accusearch an “administrative search prior search’s halt to unfair practices its Aplts. App., Vol. 4 at and selected possibility that resumption and the of desired, type of search specific not a criminally those would be practices prose- or researcher a search identified awith cuted; and Accusearch waived district specific researcher. Accusearch would appeal injunc- court its claim that on request forward the search to a researcher tion is overbroad. fulfill who could it. After a completing search, the researcher would send the re- I. BACKGROUND sults to Accusearch and bill Accusearch A. Abika.com directly. Accusearch then email the results to the post customer and them on Although parties characterize the customer’s Abika.com account. A cus- differently, they Abika.com website do not tomer could a third-party know that re- dispute aspects opera- the essential of its was in a searcher involved transaction Any person tion. in Abi- interested by reading contained on boilerplate ka.com’s services could access the website and in email website corre- engine by a search through typing or its then, spondence. And even the customer address into an Internet A visi- browser. not provided contact information for tor to the would first see home- website any researcher. page, of displayed categories which various information that could be searched. The Telephone B. Provision of Records printout of record contains one the website 20, 2006, from December and February January one From 2003 to printouts November The show the Abika.com website advertised access searches on ho- personal telephone some advertised records. The website mepage targeted generally acquire stated that its customers could records, in government contained as “details incoming outgoing such calls from dockets,” records,” number, “court “sex phone prepaid calling offender card Phone,” ... Aplts. App., “Tax Liens.” Vol. 4 Internet that “Phone search- 1313; at every country id. Vol. 5 at 1429. Other are search ers available for of the (internal intimate categories personal in- related world.” Id. Vol. 4 1246-47 formation, omitted). such as quotation “Romantic Prefer- marks Abikaxom’s “individually identi- constituted cellphone Abika.com purchase both
customers could network infor- speci- proprietary customer records. The website fiable and landline 222,2 or, detail the cellphone meaning records would within the fied that mation” particular cellphone dialed from generally, numbers the Telecommunica- more “date, include time and generally rec- Act barred disclosure those tions 2 at made. Id. Vol. duration of calls” Al- carriers. by telecommunications ords records would include 475. Landline (remarkably, in our though Accusearch information, specific save for the same view) good maintained that it relied time at calls were made. commitment to faith on its researchers’ information, it acquiring the law in obey al- this information would
Acquisition of tele- offering it ceased represented to violate inevitably require someone most January to circum- 2006 after learn- phone Act or records Telecommunications theft. The Act subsidiary vent it fraud or forbids of its research- ing that one carriers from disclos- telecommunications telephone data possibly ers obtained ing telephone records absent customer fraudulently. one of applicability sever-
consent History Procedural C. 222(c)-(d). al exceptions. See U.S.C. against suit filed provides The Act as follows: 1, 2006, May roughly four months after law or with the Except required rec- Accusearch ceased offer customer, a telecommu- approval tele- complaint alleged that ords. nications carrier receives obtains phone protected against are dis- informa- proprietary customer network Act the Telecommunications closure *6 of by provision virtue of its a tele- tion that in such records constitutes and trade use, service shall communications 5(a) practice § unfair in of of violation disclose, individually permit or access to 45(a). FTCA, § the 15 U.S.C. Accusearch net- proprietary identifiable customer dismiss, to con- (A) responded with a motion in its provision work information tending complaint that failed to state the telecommunications service from the (B) derived, a claim because the Telecommunications which such information is to, in, necessary or used the and applies only telephone services Act to carriers provision of such telecommunications telephone rec- selling because confidential service, the including publishing of di- The was not otherwise unlawful. ords rectories. Accu- court denied the motion and district 222(c)(1). conducting (We search filed an answer. After § Id. the additional note below.1) discovery parties the each moved for sum- dispute is no exceptions There telephone mary judgment. on the records available phys- involving 1. Act not forbid telecommunica- tions "risk death serious The does harm,” (c) "providers disclosing telephone and of information carriers rec- ical tions from “initiate, render, bill, (1) management to and database services” used to collect ords services”; (2) provision emergency protect in services. for telecommunications assist 222(d). U.S.C. carriers and customers telecommunications "fraudulent, abusive, or from the unlawful of, to,” subscription use telecommunica- proprietary network informa- "Customer services; (3) provide tions certain "telemark- “information con- tion” is defined to include referral, eting, or administrative services and that relates tained bills” “information customer”; (4) "provide configuration, type, call quantity, and location technical to destination, location, (a) public-safety personnel and amount of use of information” to call, (b) legal guard- responding to a user's telecommunications service subscribed 222(h)(1). emergency any customer.” 47 U.S.C. family and members in situa- ians argued that Accusearch’s The Appeal D. Claims unfair as a practices were under FTCA contends the district matter of law. Accusearch countered that court granted judgment should have in its CDA, which, it was immunized (1) (2) law, favor it because broke no broadly speaking, protects Internet ser- FTC acted outside its authority at- liability publishers tempting vices as with re- enforce Telecommunica- Act, tions and it immu- was entitled to spect provided by to content others. See nity under the CDA. Accusearch also 230(c). Accusearch contended challenges propriety and scope immunity entitled to this be- was injunction. Prohibitory injunctive relief FTC’s claim treated it cause the Accusearch, unnecessary, argues was be- publisher telephone records that were voluntarily cause it dealing ceased in tele- (that is, provided by others com- phone records before FTC filed its researchers) panies independent complaint, and because resumption of traded over Abika.com. district court subject those newly activities would it to granted rejected the FTC’s motion and criminal regardless enacted sanctions immunity. assertion of injunction. Accusearch further as- court had ruled the FTC established injunction serts that improperly re- unfair-practice each element of its claim. ability stricts its deal consumer data And it concluded that Accusearch other than records. This over- statutory immunity entitled to breadth, told, we are violates Accusearch’s “participated had the creation or devel- due-process, free-speech, equal-pro- opment” of the information delivered rights. tection customers, Accusearch, 2007 WL (brackets II. quotation *6 and internal DISCUSSION omitted), marks and because the FTC’s A. Unfair-Practice Claim claim did not “treat” Accusearch as a mere prohibits The FTCA decep- “unfair or (inter- records, publisher id. of those at *5 or practices tive acts in or com- affecting *7 omitted). quotation nal marks It found merce,” 45(a)(1), § and vests the that “claim of blissful igno- prevent FTC with authority prac- to such rance its researchers’ is [of misconduct] orders, tices by issuing cease-and-desist simply plausible light not facts 45(b), rules, § by id. prescribing id. ease,” *7, at explaining this id. that “[e]ven 57a(a)(l)(B), § by seeking injunctive if at [Accusearch unaware was] outset 53(b). court, § relief in federal district id. obtained, how these records were emails “unfair,” To be a practice must one be documenting ordering process between likely that causes or is to cause sub- “[1] clearly Accusearch and its vendors indicat- injury stantial to consumers is [2] which ed that underhanded were means used reasonably not by avoidable consumers obtain the records,” id. After further themselves and [3] not outweighed by briefing countervailing the district court entered an in- benefits or to consumers 45(n). junction competition.” Id. restricting Aecusearch’s future telephone trade in per- records other argued The FTC Accu- below that sonal information. Accusearch was also practice offering search’s consumer tele- ordered, among things, other to disgorge phone records over the Internet satisfied $199,692.71 profits the sale from of tele- First, all requirements. three the FTC phone-record information. that injury contended substantial was al., law); Kanwit et Stephanie state W. Telecom- the subversion
caused
§ 4.5
Act;
argued
that consumers Federal Trade Commission
munications
(The
pro-
were
telephone records
obtained
and free
FTC is “unfettered
whose
suffered emotional
through Abika.com
con-
practices
previously
ceed
not
against
(sometimes
being
unlawful.”).
from
stalked
harm
sidered
harassed)
incurred
and often
otherwise
sure,
may be
To
violations of law
be
changing telephone
costs
substantial
analysis. See
to the unfairness
relevant
privacy
future
prevent
providers
(“In
45(n)
determining whether
U.S.C.
Second,
FTC contended
breaches.
unfair,
the Commis
practice
act or
because Accusearch’s researchers
that
poli
public
may
sion
consider established
con-
encryption,
password
could override
with all
cies
to be considered
as evidence
themselves
protect
could not
sumers
public
consid
policy
other
Such
evidence.
only by extreme
reasonable means but
basis
may
primary
not serve as a
erations
ceasing telephonic com-
measures such as
determination.”); Stephen Cal
for such
Third,
the FTC
altogether.
munication
kins,
Essay,
An
FTC Unfairness:
unconsented-to disclo-
contended that the
L.Rev.1935,
(2000) (discussing
Wayne
no
provided
sure of
claim
in which
FTC enforcement actions
countervailing
to consumers.
benefits
on
predicated
was unfair
practice
was
Accusearch does not
appeal
On
FTCA).
of a law other than the
violation
unfair-prac
challenge
analysis
this
Here,
alleged
example,
arguments
elements.
Its
relate
tice
substantial-injury
an unfair
element of
to the FTC’s reliance on
Telecommuni
45(n),
met
practice, see 15 U.S.C.
was
argument
cations Act. One
is that the FTC
pri
partly by the
of consumer
subversion
ap
the Act because it
rely
could
vacy
afforded
the Telecom
protections
carriers,
solely to
plied
telecommunications
of that
Act. But the existence
munications
researchers; dur
not to Accusearch or its
injury
on whether
Telecommuni
turns
issue,3
Accu
period
at
contends
ing
somebody),
(by
Act was violated
cations
search,
preventing
there
“no law
be
Accusearch could itself
on whether
collecting
third-party
rec
held
under the
liable
Telecommunications
Aplts.
ords.”
Am. Br.
Act.
reject
argument.
premise
We
Its
the relat
Accusearch also raises
practice
to be
cannot be an
appears
no authori
argument
ed
FTC had
unfair one
it violates some law inde-
unless
only the
ty
bring
its claim because
im-
But the FTCA
pendent
the FTCA.
may
Federal Communications Commission
no
See 15
poses
such constraint.
U.S.C.
*8
Act. This
enforce the Telecommunications
45(n)
§
of an unfair
(setting out elements
argument
fundamentally misapprehends
contrary, the
On
FTCA en-
practice).
The FTC
the nature of this lawsuit.
against
take action
unfair
ables the FTC to
under
Trade
brought suit
the Federal
yet
practices that have not
been contem-
Act,
enjoin an un
seeking to
Commission
Spiegel,
laws. See
plated by
specific
more
id.
practice affecting
fair
See
commerce.
(7th
FTC,
287,
Inc. v.
F.2d
291-94
540
45(a)
§
unlaw
(declaring
practices
unfair
Cir.1976)
practice of su-
(catalog retailer’s
53(b)
ful);
§
author
(giving
the FTC
id.
ing
in distant forum was unfair
customers
practices
ity
enjoinment
of unfair
practice
perfectly proper
if
was
under
seek
even
receipt
offering
ceased
which criminalizes
sale
3. After Accusearch
records,
18
Telephone
records. See U.S.C.
Congress enacted the
Rec-
confidential
2006,
§
Privacy
1039.
ords
Protection Act of
1195
court).
24, 1995),
district
As set out Ct. May
in federal
which held that
above,
Telecommunications Act was
of an
provider
messaging
online
board
complaint
relevant to that claim. But the
liable for defamatory
could be
statements
allege that Accusearch
does not
violated
posted
third-party users of the board.
any event,
may pro
that Act. In
the FTC
See Fair Hous. Council v. Room
against
practices
ceed
unfair
even if those
(9th
mates.Com, LLC,
1157,
521 F.3d
1163
practices
some other statute that
violate
Cir.2008) (en banc) (noting Congress’s con
authority
lacks
administer.
Oakmont).
cern about Stratton
FTC,
See Am. Fin. Sews. Ass’n
Stratton Oakmont court ruled that
(D.C.Cir.1985) (certain
credi
“pub
administrator
the board became a
remedies,
a
tor
which violated laws in
lisher” when it deleted some distasteful
5(a)).
states,
unfair under
number of
also
third-party postings,
subject
and thus was
Indeed,
practice
condemnation of a
publisher’s
liability
defamatory
may
criminal or civil
mark
statutes
well
postings
failed to remove. 1995 WL
as
See
practice
“unfair.”
FTC v. R.F.
323710, at *4-5. The decision
criti
Bro.,
304, 313,
Keppel &
U.S.
54 S.Ct.
discouraging
cized for
the voluntary filtra
(1934);
tionable, appeal that Accusearch did not such material whether or or “did constitutionally protected; such a because its website not service any interaction between third (B) to or allow for taken enable any action to information content Br. at 20. The parties.” Aplee. make available others technical or providers history legislative that the CDA’s asserts access to material means restrict use of the word “interac- Congress’s (1). [“para- paragraph described only protect tive” an intent to evince (1)” probably be “sub- graph should It providers of online bulletin boards. dis- 230(c), (A),” § U.S.C.A. paragraph see tinguishes boards from a website like such 1]. n. Accusearch’s, merely permits a user 230(e)(3) provides § that “No Finally, same sort business that it to conduct the brought and no may action be cause of (or private would in a retail store investi- may any be under State liability imposed office). (We however, note, that gator’s this law that is with or local inconsistent deny also im- argument FTC’s section.” websites, munity to nonretail such one immunity Accusearch claims under medical-journal that articles online posted 230(c)(1). language provi- § that (perhaps removing graphic pictures), after above, sion, three on the quoted sets limits permitted the website also direct unless First, immunity provided. immunity is visitors.) among interaction its only or an “provider to a user of available essentially concedes the fac- Id. computer interactive service.” argument— tual FTC’s premise 230(c)(1). comput- § term interactive namely, the absence of direct interaction er service means website. among users Abika.com service, system, or ac- any information occasionally tries Although Accusearch provides software that or provider cess as an interactive forum portray its website by multiple access computer enables independent on which researchers connect- server, including a computer users to information, persons seeking ed with it system specifically pro- that service acknowledges “all ultimately informa- access the Internet and such vides tion between the passed [customer] operated systems or services offered Abika.com, as through researcher went an libraries educational institutions. Br. at 3. intermediary.” Aplts. Reply 230(f)(2). Second, liability must Id. having be based on the defendant’s acted despite But accurate charac- FTC’s “publisher speaker.” as a Id. Abika.com, interactivity terization of ar- 230(c)(1). Third, immunity can be gument fully not respect does CDA’s respect claimed “information 230(f)(2) say text. Section does provided another information content computer an interactive service must facili- provider.” Id. Accusearch contends that among tate rath- parties; interaction third If requirements. these it fails to satisfies er, computer an says interactive three, satisfy one of the it is “provides service is one enables immunity. entitled to computer multiple access users Computer Interactive Service 230(f)(2) computer server.” 47 U.S.C. added). (emphasis See Universal requirement respect to the first With Inc., Inc. Sys., Lycos, Commc’ns immunity, the district court ruled CDA (1st Cir.2007) (“web site provided that Accusearch interactive providers ... are Accusearch, operators interactive computer service. See computer web site argues “[a] at *4. The FTC services” WL
1197 service, computer Accusearch, computer multiple ... access such as may enables server, namely, computer a claim immunity only users to CDA respect with (internal the web site.” server hosts provided “information another informa- omitted)); quotation Batzel v. marks tion provider.” content 47 U.S.C. (9th Cir.2003) Smith, 1018, 1030 333 F.3d 230(c)(1). Thus, an computer interactive not that a (suggesting, deciding, but web- service that is also an “information content necessarily provides site an interactive provider” certain content is not immune service). Accordingly, computer we are from liability arising publication reluctant to embrace the FTC’s contention Roommates.com, that content. See operates that one who a website does not Ezra, Weinstein, 1162; Co., F.3d at Ben & thereby computer an interactive provide Inc., Inc. v. Am. Online among service unless allows interaction (10th Cir.2000). 4 n. Because we can resolve the users. The CDA defines the term infor case immunity matter of CDA this with- mation provider “any person content as or deciding out whether the contention FTC’s entity responsible, that is whole or correct, day. leave it to another we for part, development the creation or information provided through the Internet 2. Treatment as a Publisher other interactive Speaker computer service.” 230(f)(3). “This is broad Turning requirement second for definition, covering even those who are immunity, adopting CDA we refrain from responsible for of content development the concurrence’s view that the CDA does ” part.’ ‘in Sys., Universal Commc’n protect not Aceu- 478 F.3d at Accordingly, may 419. there liability under search’s the FTCA is not providers be several information content being publisher speaker. based on its with respect single to a item of information concurrence, According to “the FTC (each being “responsible,” at least “in sought ultimately held Accusearch lia- development”). for “creation or part,” ble for its conduct rather than for the 230(f)(3). See U.S.C. content of the information it was offering Op., (Tymko- the Abika.com website.” Accusearch contends that under vich, J., concurring) us, appears at 2. It language of the not plain CDA it was however, that Accusearch would not have provider, information content because it “published” violated the FTCA had it not for responsible creation devel- the confidential information that opment disagree. of information. We To acquired. it had improperly pub- And with, begin we consider whether confiden- lication was on its website. It would seem “developed,” tial records are be irrelevant Accusearch could CDA, meaning when, within the as operated have same business model here, they to the over public are sold without use of the Internet. The concur- Internet. thoughtfully interesting rence raises an The CDA does not define the term but, point, requirement the first development. Accusearch would construe immunity, CDA we choose to re- narrowly. word It two relies on dictio immunity ground. solve the this issue on definitions, nary correctly noting that de Information Content Provider velop can something “[m]ake mean to new” Aplts. into existence.” Am. “[c]ome predicate immunity for CDA (internal quotation Br. marks omit on which we the matter is the third resolve ted). requirement. provider A of an interactive provided Because the *11 1198 (something previously poten- from the originally came usable
its customers carriers, usable)”). argues, it tially available telecommunications brought anything nothing new nor made however, conclusion, does not end This But uses the into the CDA existence. The remains wheth- inquiry. question of infor development “ phrase “creation in whole ‘responsible, er Accusearch was 230(f)(3), mation,” and if the development of the part, or in for ... develop were limited the word meaning of Roommates.com, offending content.” 521 upon Aecu to the senses relied two 230(f)(3)). is, (quoting § F.3d at 1162 That search, add development would the word of responsible development for already conveyed the word nothing not of content that was the source specific a long-standing canon of creation. “Under liability? “yes.” The answer is alleged interpretation, one should avoid statutory the CDA not define devel- Just as does to render a statute so as statu construing opment, responsible. it does not define superfluous.” McCloy v. tory language provide complete definition We need Agric., 351 F.3d 451 Dept. U.S. of contexts; (10th Roommates.com, apply of the term that all Cir.2003); will see 521 say enough therefore examine but we can to resolve this case F.3d at 1168. We reasonably whether can construe devel that assuage we and to concern the broad broadly. opment more meaning development for we have adopted of im- purpose will undermine can. faced an We When munity under the CDA. term, statutory an investigation undefined meaning” illuminating. meaning its be responsible “core can becomes Montgomery, United States 468 is issue under when a court CDA (10th Cir.2006); also 720 see Muscar considering immunity from whether CDA States, 125, 128-29, ello v. United 524 U.S. liability is “re- is unavailable because one 111 L.Ed.2d S.Ct. sponsible, part, or in for the whole (investigating etymological origins of “car creation or of information” development meaning”). ries” to uncover its “primary In this liability. is the source of the develop The word derives from the Old for harm—the context—responsibility means, desveloper, French in es ordinarily has a norma- responsible word sence, unwrap. Third New Webster’s tive English connotation. See The Oxford (2002) (ex Dictionary International (2d ed.1998) Dictionary (stating one plaining developer composed is responsible “Morally definition of ac- wrap veloper, meaning up,” word “to actions.”). au- countable for one’s As one des). negative prefix dictionary ‘Every it: thority puts say, we “[W]hen develop correspondingly definitions for re actions,’ responsible man for his own we is act drawing something volve around the definitely any authority, do think out, “active,” “visible,” making it or “usa law, tribunal which must an- before he Thus, a photograph developed ble.” is Id. swer, general rather of the law of but processes exposing chemical a latent right, moral uni- constitution image. developed by id. Land is See ” Fernald, .... Funk & verse James C. harnessing untapped potential for Syn- Wagnalls Standard Handbook of building extracting or for resources. See onyms, Antonyms, Prepositions Likewise, id. when confidential (1947). Synonyms responsibility exposed public information was view blame, fault, guilt, this context are Abika.com, through information was (one American culpability. See Oxford Writ- See id. definition “developed.” of de ed.2008). (2d velop actually “to make er’s Thesaurus 747 Accord- available *12 develop- argues for ingly, “responsible” to be the Accusearch that our decision in Ezra, content, Ben one must be establishes ment of offensive its immunity. con- entitlement to CDA In more than a neutral conduit for that corporation case the sued is, plaintiff is not for America “responsible” tent. That one allegedly posting if Online for three occa- the of offensive content development concerning sions incorrect information neutral to the respect one’s conduct was with (as corporation’s price stock and share vol- of the content the offensiveness ume. at pur- Id. 983. America Online typical be the case the Internet bulle- with board). price chased volume information on ordinarily say tin We would third-party numerous stocks from a vendor highway “respon- one who builds compiled “major who had it from national by sible” of that highway for the use exchanges and international stock robber, fleeing though bank even cul- the stock markets.” Id. We held America prit’s escape by was facilitated avail- protected Online liability by was from ability highway. CDA. at 986. Id. Most relevant to this re This construction the term case, said that “Plaintiff has we not dem- sponsible, with the clear comports purpose [that onstrated America Online] worked so encourage of the CDA—to Internet ser closely third-party [the with vendor] re- vices that increase flow of information garding allegedly inaccurate stock in- liability from in protecting them when formation [it] became an information dependent persons negligently or inten content provider.” Id. at 985. Accusearch tionally to harm supply use those services argues that because America Online was 230(a), (b). ful content. U.S.C. See pro- considered information content pro that a We therefore conclude service soliciting vider despite the relevant infor- “responsible” vider is for the development publication, mation for online way of offensive content if it in some own solicitation of information could not specifically encourages development provider make it an information content what is offensive the content. about either. But Accusearch takes too broad a us, In before the case the offend view of what was the relevant information ing content was the disclosed confidential in Ben Ezra. Although America Online information We need not itself. construe quotations, plaintiffs solicited stock to responsible beyond word extend claim based on was inaccuracies meaning core in this context to conclude quotations. solicited See id. 983. The responsible that Accusearch was for “offending content” was thus erroneous development of that content—for the con and, stock quotations unsurprisingly, protected version of the legally errors; America did not Online solicit material publicly confidential ex indeed, it sent the request- vendor emails Accusearch posed information. solicited ing “correct allegedly that it inaccurate requests for such confidential information information.” Id. at 985. If the informa- paid and then it. It researchers obtain tion solicited America Online had been knowingly virtually to transform sought inherently example, if unlawful—for unknown into a avail publicly information protected by were contract or was child commodity. able And as the court district pornography—our reasoning would neces- shows, found Ezra, and the record sarily have been different. In Ben obtaining however, knew that its researchers were nothing America Online had done through other encourage fraud or what made content offen- illegality. alleged inaccuracy. America sive—its On- records, knowing acquire ers to respect neutral conduct was
line’s
confidentiality
the records was
It
that the
quotations.
stock
errors in the
possible
law,
mightily
the of-
contributed
protected
responsible
therefore not
conduct of its researchers.
the unlawful
content.
fensive
*13
Indeed,
responsibility is
in-
holding
Accusearch was an
Our
than that of Room-
more pronounced
by
supported
provider
content
formation
may have en-
Roommates.com
mates.com.
Most
from
this circuit.
authority
outside
content;
post offending
to
couraged users
Circuit,
banc,
sitting
the Ninth
en
recently,
Accu-
postings were
but
the offensive
provider
of an online room-
held
affirmatively
d’etre
it
search’s raison
responsible for
mate-matching
service
them.
solicited
development
discriminatory prefer-
personal-pro-
contained in its users’
case,
ences
An
Ninth Circuit
earlier
Carafano
Roommates.com, 521 F.3d at
pages.
Inc.,
file
F.3d 1119
Metrosplash.com,
website were
(9th
1167-68. Subscribers
Cir.2003),
compari-
provides a useful
a set of
specify
preselect-
to
from
required
person
an
son.
In that case
unknown
“sex,
their
sexual orien-
ed answer choices
bawdy dating
profile
actress
created
chil-
[they]
bring
and whether
tation
Carafano on the defendant’s
Christianne
1161;
Id. at
id.
to a household.”
see
dren
1121.
online-dating website.
at
To
See id.
to
& n. 17.
also had
at 1165
Subscribers
profile,
anonymous poster
create the
in
“preferences
their
roommates
select
essay
had
an
and “select answers
to draft
three
respect
to the same
criteria.”
with
fifty questions
to
than
from menus
more
example,
at 1161. For
subscribers
Id.
op-
four and nineteen
providing between
had to state “whether
seeking housing
options
“sexually
tions.”
were
Id. Some
they
willing
‘Straight
to live with
[were]
suggestive” and some
“innocuous.”
were
males,
males,
‘Straight’
only
gay’
with
dating
Id.
Ninth Circuit held that the
”
‘Gay’
‘No
Id.
males or with
males.’
an
was not
information content
service
then
preferences
at 1165. These
were
Id.
provider
profile.
of the libelous
at
profile page,
on a
posted
subscriber’s
1124.
later
As the en banc court would
they
by
reviewed
other
where
could be
Roommates.com,
salient
explain in
“[t]he
for a roommate match.
looking
subscribers
fact in
was that
the website’s
Carafano
sure,
matching
To be
service did
Id.
of user
did
classifications
characteristics
discriminatory preferences in the
place
to
absolutely nothing
enhance the defama-
not,
of its
It did
in other
minds
users.
tory
encourage
sting
message,
of the
words,
preferences.
create those
But the
make
defamation or to
defamation easier.”
by requiring
found that
its users to
court
Roommates.com,
1172.
521 F.3d at
Al-
preferences,
disclose their illicit
the service
though
person
unknown
created Ms.
more
provider
pas-
became “much
than a
part
preselected
in
profile
Carafano’s
information provided
sive transmitter of
choices,
provided
answer
menus
others;
developer,
it
at
bec[ame]
defamatory
encourage
website did not
at
part,
of that information.” Id.
least
at
Room-
response. See id.
1171. Unlike
helps
It summarized:
website
“[A]
1166.
mates.com, which
the disclosure
prompted
content, and thus falls
develop
unlawful
discriminatory preferences,
the dating
to section
if it
exception
within
provided only “neutral
tools”
website
materially
alleged
to the
ille-
contributes
employed
the offend-
which were
to create
Id. at
gality
conduct.”
1172;
at
ing content.
Id.
see Universal
(messaging
at 420
Sys.,
Commc’n
F.3d
language applies
That
Aceusearch’s
posts
did
By paying
respect
board immune with
role in this case.
research-
Comm.,
Lawyers’
prompt);
Trading
personal
Chi.
other “consumer
cf.
information
express
without
did not “cause”
(Craigslist
written
permission
[the consum-
discriminatory
housing
advertisements
er],
personal
unless
consumer
[the]
the Fair
meaning
Housing
within the
lawfully
information was
obtained
3604(c),
Act,
hosting
online
from publieally available informa-
marketplace
they
posted).
where
were
tion,” id. at 1608.
portray
Accuseareh
itself
attempts
as
injunction
personal
defines consumer
tools,
provider
stressing
of neutral
“any individually
identifi-
merely provided
peo-
“a forum which
concerning a
able information
consumer.”
ple
request” telephone
advertise and
rec-
*14
at 1606.
Id.
at
Aplts.
ords.
Am. Br.
37-38. But that
prohibitions
Accuseareh attacks these
the
phrasing mischaracterizes
record. As
grounds,
(1)
they
two
arguing that
are
above,
explained
Accuseareh solicited re-
unnecessary
unconstitutionally
quests
protect-
information
confidential
overbroad. Accuseareh
not challenge
does
law,
it,
ed
to find
paid researchers
knew
aspects
ordered,
other
of the relief
includ-
likely
the
were
to
researchers
use
ing
provision
the
requiring it to disgorge
methods,
improper
charged
customers
$199,692.71 in profits garnered from the
who wished the
to
be dis-
of telephone
sale
records. We address
closed. Accusearch’s actions were not Accusearch’s
in
contentions
turn.
generating
“neutral” with
to
respect
offen-
content;
contrary,
sive
on the
its actions
Propriety
Injunctive
of
Relief
generate
were intended to
such content.
A
power
grant
“court’s
to
in
immunity
Accuseareh is not entitled to
un-
junctive relief survives the discontinuance
der the CDA.
illegal
of the
conduct.” United States v.
Co.,
629, 633,
W.T. Grant
345 U.S.
73 S.Ct.
Injunction
C. The
894,
(1953). When,
telephone records before noted, remedies, they have never But, equitable court as the district menced. “in id. An absolutely prohibited. in the See remained been because advantages had can have several brokerage injunction business” formation unfair acts a criminal stat posed by in similar threat “engag[e] over the capacity Accusearch, with, encompass future. it can con begin in the practices” ute. To *9; Here, also at see W.T. barred the statute. WL duct not Co., at 73 S.Ct. “individually 345 U.S. identifi injunction Grant covers all (“effectiveness is a the discontinuance” information, Aplts. App., able” consumer of recur assessing likelihood factor the criminal stat whereas Vol. 5 rence). proved has In Accusearch’s view records, see 18 only telephone ute covers prospective any need for the absence of (h)(1). Also, 1039(a)-(e), U.S.C. willingness to dis by expressing a relief precisely injunction can be drawn more $200,000 ill-gotten profits. nearly gorge *15 statute, a it can have than a criminal best situated But a district court by removing any effect greater deterrent contrition, litigant’s a sincerity judge party enjoined doubt in the mind 634, Co., 73 at Grant 345 U.S. see W.T. Fur conduct is forbidden. particular no 894, given has us and Accusearch S.Ct. thermore, injunc an a violation of proving court’s second-guess the district ground to than less burdensome generally tion is v. States Or. State judgment. See United example, criminal violation. For proving a 690, Sot, 326, 333, 72 S.Ct. Med. 343 U.S. “knowingly § must act to violate 1039 one (1952) (courts must “beware L.Ed. 978 96 1039(a)-(c). § intentionally.” Id. and injunctive defeat relief of efforts to hand, no injunction, imposes on the other reform”). and repentance protestations not and the law does requirement scienter v. Free necessarily imply one. See FTC argues also Accusearch 1192, Commc’ns, Inc., 401 F.3d 1204 com improper because 18 U.S.C. injunction was Cir.2005) (“FTC (10th prove not n. 7 need 1039, by Congress § after this suit enacted violation.”); §a ... to establish 5 filed, receipt scienter criminalizes the sale was Wright, Arthur R. Mil telephone records absent 11A Alan of confidential Charles 1039(a)-(c) Kane, § Practice (Supp. Id. Federal Mary Kay customer consent. ler & (2d 2008). government 2960, ed. Stressing § at 382 and Procedure § if it 1995) (“[A] under 1039 resumed prosecute could decree need not violation of [a] records, Accusearch its trade in in civil party a to be held be willful for injunctive relief prospective asserts a need not be contempt.”). And violation redundant, and, such, improp would be beyond a reasonable jury to a proved “ er, injunction ‘en proper a must supra Wright, Alan doubt. See Charles existing power of the already hance the (there 2960, is no constitution § at 379-80 ” Br. at 49 Aplts. act.’ Am. Government civil-contempt pro jury to a right al v. New York Times Co. United (quoting contempt must be shown ceedings and the 2140, States, 713, 744, 29 91 S.Ct. 403 U.S. evidence, convincing only by clear and (1971) (Marshall, J., concur 822 L.Ed.2d doubt). The district beyond a reasonable ring)). inconsequential impose did not court Thus, argument Accuseareh’s injunction. sure, injunctions against criminal-
To be own terms. historically disfa- fails on its have been ized conduct
1203
event, “Congress
protection
In
... has
sion of
equal
does not reference
injunctive
any particular
injunction,
for civil
relief
feature of
power
provide
we
presume
which
in
that the claim is
to the
against
adversely
only
activities
affect
tied
commerce,
challenges
ex
feature that Accusearch
power
ap-
terstate
and that
peal—namely,
coverage
tends to
which are
criminal
of information
activities
made
records.)
other than
by state or
law.”
v.
federal
United States
(7th
1351,
Cir.
Cappetto, 502 F.2d
Accusearch, however,
failed to
1974)
injunction
gam
(upholding
against
below,
preserve
claim
this
of error
it invit-
bling
Organized
activities issued under the
alleged
ed the
error. After the district
Crime Control Act of
also
granted
court
-summary judg-
FTC
crime);
made
those activities
accord ment,
parties
submitted briefs on the
Carriers,
Nat’l Ass’n Letter
470 F.2d
propriety
scope
arid
injunctive
relief.
(injunction against
con
criminalized
argued
injunction
that an
proper
duct
because it
part
was author
unnecessary
that,
if the court disa-
nature”).
“purely
ized
civil in
statutes
greed, injunctive relief should be limited in
FTCA,
enacting
Congress
In
gave
respects.
certain
In connection with this
authority to
express
permanent
FTC
seek
argument,
alternate
Accusearch submitted
injunctive
in federal court
prevent
relief
proposed injunctive
order that had been
5(a).
53(b);
violations of
See 15 U.S.C.
“negotiated” with
Aplts.
App.,
FTC.
Kuykendall,
proposed injunction
Vol. 5 at
(10th
banc).
Cir.2004) (en
set
agreed-upon
forth
language
denot-
parties
ed several areas which the
could
sum,
In
the enactment of
does
not reach consensus.
Among
agreed-
*16
propriety
injunc-
not undermine the
II,
upon provisions were Section
entitled
tion against Accusearch.
Activities,”
“Prohibited Business
which
Injunction
2. Breadth
the
dealings
bars
in
personal
“consumer
infor-
mation,”
the
that
definition of
term as
the district
deter
Although
court
“any individually identifiable information
mined
tele
that Accusearch’s trade in
a
concerning
consumer.” FTC v. Accu-
phone
unfair
mean
records was
within the
(Defs.
search, Inc., No. 06-CV-105-D
Br.
FTCA,
ing of
injunction
the
issued an
Relief,
2-5,
19,
Injunctive
on
Ex. A at
Nov.
restricting
trade in
indi
“any
2007).
vidually identifiable information concern
ing
Aplts.
a
5
App.,
Curiously,
consumer.”
Vol.
Accusearch submitted the
argues
injunc
injunction
proposed
Accusearch
that the
as an
attachment
a
tion
been
trade
in
argued
should have
limited to its
district-court brief which it
that
records,
telephone
injunctive
in
the specific practice
sought by
the
relief
the FTC
Colgate-
found
be unlawful. See FTC v.
would be overbroad
because
was not
Co.,
374, 394-95,
Palmolive
380 U.S.
85 limited to
but
covered
(FTC
1035,
Aplts.
S.Ct.
A recent Ninth case Circuit prepaid calling or card Internet Phone. summed up scope 230 immu- Section Phone every searches are available for ” torts, nity respect stating: to various ¶ country of the Id. at 21 world.’ 9. Fur- matters is the cause of ther, whether
[W]hat importantly, most al- inherently requires the court to (and action leged proved): ultimately “publisher treat defendant as or The account holders have not authorized of content speaker” provided another. the Defendants to obtain access put way, it another courts must To ask sell their confidential customer phone duty plaintiff alleg- whether Instead, to records. obtain such infor- es defendant violated derives from mation, used, have Defendants defendant’s or conduct as a status use, pretenses, caused others to false does, If it “publisher speaker.” sec- statements, fraudulent fraudulent 230(c)(1)precludes liability. tion misrepresen- stolen documents or other *18 Yahoo!, Inc., tations, v. including posing Barnes as a customer Cir.2009). (9th carrier, a telecommunications to in- of officers, agents duce or employees, make sought To clear the FTC of how telecommunications carriers to disclose liable, quick Accusearch hold a review of phone customer records. helpful. confidential Through Accusearch’s conduct is sold the have website, Defendants its Abika.com confidential offered phone customer that they records have paying consumers opportunity the ob- obtained to their clients. private tain confidential ¶ added).4 (emphasis almost a cellular or Id. at 21-22 As individual with telephone. Accusearch, against landline To fulfill consumer’s its cause of action the satisfy ty, injury prong privacy the 4. To the FTCA liabili- FTC claimed the "invasion of the of information publishing the relates to “Aceusearch violated claimed through their em- on the Internet. by ‘directly or FTCA obtaining] and ... agents, ployees majority’s dispo- follow the Rather than cus- confidential s[elling] parties to third issue-—extending the defini- sition of this proprietary network tomer in- “develop” and “responsible” tions of the or consent of knowledge without of information based clude solicitation ” ¶22 12. customer.’ Id. at off of Accusearch’s consumer selections complaint, clear from As is analysis limit website—I would allegations of FTCA violations FTC’s in the first applies whether the CDA even infor- not the content stemmed from not, place. I conclude that it does would (or de- disclosing mation Aceusearch liable and that Aceusearch therefore was Accusearch’s own con- veloping), but from practices in for its business violation unfair (1) the information for offering duct in FTCA. (2) sale, encouraging and third- soliciting in obtaining law parties to violate the
information, ultimately paying selling the parties third informa-
these duty to
tion to consumers. Accusearch’s from in these unfair busi- engaging
refrain not derive from its practices
ness does an Internet status or conduct as website REBER, Petitioner-Appellant, Colton Rather, duty publishes content.5 de- alleged the FTC Aceusearch violated expectations rives from the a business Larry STEELE, Hon. A. and Mark L. in unlawful unfair engage General, Shurtleff, Attorney Utah (whether practices general business Respondent-Appellees. business is conventional bricks-and-mor- No. 08-4057. operation entirely tar exists on the Web). Barnes, World Wide See 565 F.3d Appeals, United Court States publication at 566. Internet While Tenth Circuit. data, itself, phone may very confidential July CDA, protected by be the CDA
well immunize, expressly implicitly, does not
the manner Aceusearch conducted sum, the CDA
its business. In does party’s
extend to immunize a conduct out- just the realm the Internet
side practices complaint. security resulting obtaining and sell- same unfair business ing phone customer records with- Nothing confidential con- would immunize Accusearch’s authorization sub- out consumers’ causes duct it chosen to deliver the confidential had public, harm consumers and the stantial requesters through hard records to *19 to, including, endangering the but not limited through copy print-outs person either safety health of consumers.” Id. at duty Accusearch's to refrain from mail. ¶ 11. engaging distribution in the solicitation and unlawfully-obtained confidential If Aceusearch run a traditional business had depend on the medium records should physical out of a location offered similar operate. chooses to within which it services, it the FTC have would seem