Federal Trade Commission v. Accusearch Inc.

Abika.com is a website that has sold various personal data, including telephone records. The Federal Trade Commission (FTC) brought suit against the operator of the website, Accusearch Inc., and its president and owner, Jay Patel (collectively, Accusearch), to curtail Accusearch’s sale of confidential information and to require it to disgorge its profits from the sale of information in telephone records. The FTC alleged that Accusearch’s trade in telephone records (which are protected from disclosure under " § 702 of the Telecommunications Act of 1996, 47 U.S.C. § 222 (2006)) constituted an unfair practice in violation of § 5(a) of the Federal Trade Commission Act (FTCA), 15 U.S.C. § 45(a) (2006). The district court granted the FTC summary judgment, see FTC v. Accusearch, Inc., No. 06-CV-105-D, 2007 WL 4356786, at *10 (D.Wyo. Sept.28, 2007), and after further briefing entered an injunction restricting Accusearch’s future trade in telephone records and other personal information.

On appeal Accusearch contends that (1) the FTC’s unfair-practice claim should have been dismissed because Accusearch broke no law and because the FTC had no authority to enforce the Telecommunications Act; (2) it was immunized from suit by the protections provided websites in the Communications Decency Act (CDA), 47 U.S.C. § 230 (2006); and (3) the injunction is unnecessary to prevent it from resuming trade in telephone records and is unconstitutionally overbroad. Exercising jurisdic*1191tion under 28 U.S.C. § 1291, we reject each of Accusearch’s contentions and affirm. First, conduct may constitute an unfair practice under § 5(a) of the FTCA even if it is not otherwise unlawful, and the FTC may pursue an unfair practice even if the practice is facilitated by violations of a law not administered by the FTC, such as the Telecommunications Act. Second, Accusearch’s claimed defense under the CDA fails because it acted as an “information content provider” (and thus is not entitled to immunity) with respect to the information that subjected it to liability under the FTCA. See 47 U.S.C. § 230(f)(3). Finally, the injunction was proper despite Accusearch’s prior halt to its unfair practices and the possibility that the resumption of those practices would be criminally prosecuted; and Accusearch waived in district court its claim on appeal that the injunction is overbroad.

I. BACKGROUND

A. Abika.com

Although the parties characterize the Abika.com website differently, they do not dispute the essential aspects of its operation. Any person interested in Abika.com’s services could access the website through a search engine or by typing its address into an Internet browser. A visitor to the website would first see its homepage, which displayed various categories of information that could be searched. The record contains one printout of the website from December 20, 2006, and one from November 27, 2007. The printouts show that some searches advertised on the homepage targeted information generally contained in government records, such as “court dockets,” “sex offender records,” and “Tax ... Liens.” Aplts. App., Vol. 4 at 1313; id. Vol. 5 at 1429. Other search categories related to intimate personal information, such as “Romantic Preferences,” “Personality traits,” and “Rumors.” Id. Vol. 4 at 1313; id. Vol. 5 at 1429.

Accusearch stresses on appeal that the search services offered on Abika.com were primarily services provided by third-party researchers, who were required by Accusearch to provide assurances that they would perform their work in accordance with applicable law. The researchers had no direct contact with Abikaxom’s customers. As Accusearch explains, “all information passed between [customer] and researcher went through Abika.com, as an intermediary.” Aplts. Reply Br. at 3. In placing a search order, a customer paid Accusearch an “administrative search fee,” Aplts. App., Vol. 4 at 1246, and selected the type of search desired, not a specific researcher or a search identified with a specific researcher. Accusearch would forward the search request to a researcher who could fulfill it. After completing a search, the researcher would send the results to Accusearch and bill Accusearch directly. Accusearch would then email the results to the customer and post them on the customer’s Abika.com account. A customer could know that a third-party researcher was involved in a transaction only by reading boilerplate contained on the website and in Accusearch’s email correspondence. And even then, the customer was not provided contact information for any researcher.

B. Provision of Telephone Records

From February 2003 to January 2006 the Abika.com website advertised access to personal telephone records. The website stated that its customers could acquire “details of incoming or outgoing calls from any phone number, prepaid calling card or Internet Phone,” and that “Phone searchers are available for every country of the world.” Id. Vol. 4 at 1246-47 (internal quotation marks omitted). Abikaxom’s *1192customers could purchase both cellphone and landline records. The website specified that cellphone records would detail the numbers dialed from a particular cellphone and generally include the “date, time and duration of the calls” made. Id. Vol. 2 at 475. Landline records would include the same information, save for the specific time at which calls were made.

Acquisition of this information would almost inevitably require someone to violate the Telecommunications Act or to circumvent it by fraud or theft. The Act forbids telecommunications carriers from disclosing telephone records absent customer consent or the applicability of one of several exceptions. See 47 U.S.C. § 222(c)-(d). The Act provides as follows:

Except as required by law or with the approval of the customer, a telecommunications carrier that receives or obtains customer proprietary network information by virtue of its provision of a telecommunications service shall only use, disclose, or permit access to individually identifiable customer proprietary network information in its provision of (A) the telecommunications service from which such information is derived, or (B) services necessary to, or used in, the provision of such telecommunications service, including the publishing of directories.

Id. § 222(c)(1). (We note the additional exceptions below.1) There is no dispute that the telephone records available on Abika.com constituted “individually identifiable customer proprietary network information” within the meaning of § 222,2 or, more generally, that the Telecommunications Act barred disclosure of those records by telecommunications carriers. Although Accusearch (remarkably, in our view) maintained that it relied in good faith on its researchers’ commitment to obey the law in acquiring information, it represented that it ceased offering telephone records in January 2006 after learning that a subsidiary of one of its researchers possibly obtained telephone data fraudulently.

C. Procedural History

The FTC filed suit against Accusearch on May 1, 2006, roughly four months after Accusearch ceased to offer telephone records. The complaint alleged that telephone records are protected against disclosure by the Telecommunications Act and that trade in such records constitutes an unfair practice in violation of § 5(a) of the FTCA, 15 U.S.C. § 45(a). Accusearch responded with a motion to dismiss, contending that the complaint failed to state a claim because the Telecommunications Act applies only to telephone carriers and because selling confidential telephone records was not otherwise unlawful. The district court denied the motion and Accusearch filed an answer. After conducting discovery the parties each moved for summary judgment.

*1193The FTC argued that Accusearch’s practices were unfair under the FTCA as a matter of law. Accusearch countered that it was immunized by the CDA, which, broadly speaking, protects Internet services from liability as publishers with respect to content provided by others. See 47 U.S.C. § 230(c). Accusearch contended that it was entitled to this immunity because the FTC’s claim treated it as the publisher of telephone records that were provided by others (that is, telephone companies and independent researchers) and traded over Abika.com. The district court granted the FTC’s motion and rejected Accusearch’s assertion of immunity. The court ruled that the FTC had established each element of its unfair-practice claim. And it concluded that Accusearch was not entitled to statutory immunity because it had “participated in the creation or development” of the information delivered to customers, Accusearch, 2007 WL 4356786, at *6 (brackets and internal quotation marks omitted), and because the FTC’s claim did not “treat” Accusearch as a mere publisher of those records, id. at *5 (internal quotation marks omitted). It found that Accusearch’s “claim of blissful ignorance [of its researchers’ misconduct] is simply not plausible in light of the facts of this ease,” id. at *7, explaining that “[e]ven if [Accusearch was] unaware at the outset how these records were obtained, emails documenting the ordering process between Accusearch and its vendors clearly indicated that underhanded means were used to obtain the records,” id. After further briefing the district court entered an injunction restricting Aecusearch’s future trade in telephone records and other personal information. Accusearch was also ordered, among other things, to disgorge $199,692.71 in profits from the sale of telephone-record information.

D. Claims on Appeal

Accusearch contends that the district court should have granted judgment in its favor because (1) it broke no law, (2) the FTC acted outside its authority by attempting to enforce the Telecommunications Act, and (3) it was entitled to immunity under the CDA. Accusearch also challenges the propriety and scope of the injunction. Prohibitory injunctive relief was unnecessary, argues Accusearch, because it voluntarily ceased dealing in telephone records before the FTC filed its complaint, and because resumption of those activities would subject it to newly enacted criminal sanctions regardless of the injunction. Accusearch further asserts that the injunction improperly restricts its ability to deal in consumer data other than telephone records. This over-breadth, we are told, violates Accusearch’s due-process, free-speech, and equal-protection rights.

II. DISCUSSION

A. Unfair-Practice Claim

The FTCA prohibits “unfair or deceptive acts or practices in or affecting commerce,” 15 U.S.C. § 45(a)(1), and vests the FTC with authority to prevent such practices by issuing cease-and-desist orders, id. § 45(b), by prescribing rules, id. § 57a(a)(l)(B), and by seeking injunctive relief in federal district court, id. § 53(b). To be “unfair,” a practice must be one that “[1] causes or is likely to cause substantial injury to consumers [2] which is not reasonably avoidable by consumers themselves and [3] not outweighed by countervailing benefits to consumers or to competition.” Id. § 45(n).

The FTC argued below that Accusearch’s practice of offering consumer telephone records over the Internet satisfied all three requirements. First, the FTC contended that substantial injury was *1194caused by the subversion of the Telecommunications Act; it argued that consumers whose telephone records were obtained through Abika.com suffered emotional harm (sometimes from being stalked or otherwise harassed) and often incurred substantial costs in changing telephone providers to prevent future privacy breaches. Second, the FTC contended that because Accusearch’s researchers could override password encryption, consumers could not protect themselves by reasonable means but only by extreme measures such as ceasing telephonic communication altogether. Third, the FTC contended that the unconsented-to disclosure of telephone records provided no countervailing benefits to consumers.

On appeal Accusearch does not challenge this analysis of the unfair-practice elements. Its arguments relate only to the FTC’s reliance on the Telecommunications Act. One argument is that the FTC could not rely on the Act because it applied solely to telecommunications carriers, not to Accusearch or its researchers; during the period at issue,3 contends Accusearch, there was “no law preventing a third-party from collecting telephone records.” Aplts. Am. Br. at 61.

We reject the argument. Its premise appears to be that a practice cannot be an unfair one unless it violates some law independent of the FTCA. But the FTCA imposes no such constraint. See 15 U.S.C. § 45(n) (setting out elements of an unfair practice). On the contrary, the FTCA enables the FTC to take action against unfair practices that have not yet been contemplated by more specific laws. See Spiegel, Inc. v. FTC, 540 F.2d 287, 291-94 (7th Cir.1976) (catalog retailer’s practice of suing customers in distant forum was unfair even if practice was perfectly proper under state law); 1 Stephanie W. Kanwit et al., Federal Trade Commission § 4.5 (2008) (The FTC is “unfettered and free to proceed against practices not previously considered unlawful.”).

To be sure, violations of law may be relevant to the unfairness analysis. See 15 U.S.C. § 45(n) (“In determining whether an act or practice is unfair, the Commission may consider established public policies as evidence to be considered with all other evidence. Such public policy considerations may not serve as a primary basis for such determination.”); Stephen Calkins, FTC Unfairness: An Essay, 46 Wayne L.Rev.1935, 1970 (2000) (discussing FTC enforcement actions in which claim that practice was unfair was predicated on violation of a law other than the FTCA). Here, for example, the FTC alleged that the substantial-injury element of an unfair practice, see 15 U.S.C. § 45(n), was met partly by the subversion of consumer privacy protections afforded by the Telecommunications Act. But the existence of that injury turns on whether the Telecommunications Act was violated (by somebody), not on whether Accusearch could itself be held liable under the Telecommunications Act.

Accusearch also raises the related argument that the FTC had no authority to bring its claim because only the Federal Communications Commission may enforce the Telecommunications Act. This argument fundamentally misapprehends the nature of this lawsuit. The FTC brought suit under the Federal Trade Commission Act, seeking to enjoin an unfair practice affecting commerce. See id. § 45(a) (declaring unfair practices unlawful); id. at § 53(b) (giving the FTC authority to seek enjoinment of unfair practices *1195in federal district court). As set out above, the Telecommunications Act was relevant to that claim. But the complaint does not allege that Accusearch violated that Act. In any event, the FTC may proceed against unfair practices even if those practices violate some other statute that the FTC lacks authority to administer. See Am. Fin. Sews. Ass’n v. FTC, 767 F.2d 957, 983 (D.C.Cir.1985) (certain creditor remedies, which violated laws in a number of states, also unfair under § 5(a)). Indeed, condemnation of a practice in criminal or civil statutes may well mark that practice as “unfair.” See FTC v. R.F. Keppel & Bro., 291 U.S. 304, 313, 54 S.Ct. 423, 78 L.Ed. 814 (1934); Am. Fin. Servs. Ass’n, 767 F.2d at 983. By the same token, a practice, such as Accusearch’s, which either encourages such condemned conduct or encourages the use of fraud or theft to circumvent the statute, may likewise be considered “unfair.”

B. Immunity Under the Communications Decency Act

Accusearch’s primary argument on appeal is that even if the FTC stated a claim, it is immune from liability under § 230(c)(1) of the CDA. See 47 U.S.C. § 230(c)(1). The CDA is intended to facilitate the use and development of the Internet by providing certain services an immunity from civil liability arising from content provided by others. See Zeran v. Am. Online, Inc., 129 F.3d 327, 330-31 (4th Cir.1997). The prototypical service qualifying for this statutory immunity is an online messaging board (or bulletin board) on which Internet subscribers post comments and respond to comments posted by others. See id. at 328-29, 332 (discussing operation of messaging board and holding that it was “clearly protected by § 230’s immunity”). Indeed, Congress enacted the CDA in response to a state-court decision, Stratton Oakmont, Inc. v. Prodigy Servs. Co., 1995 WL 323710, *5 (N.Y.Sup.Ct. May 24, 1995), which held that the provider of an online messaging board could be liable for defamatory statements posted by third-party users of the board. See Fair Hous. Council v. Roommates.Com, LLC, 521 F.3d 1157, 1163 (9th Cir.2008) (en banc) (noting Congress’s concern about Stratton Oakmont). The Stratton Oakmont court ruled that the administrator of the board became a “publisher” when it deleted some distasteful third-party postings, and thus was subject to publisher’s liability for the defamatory postings it failed to remove. 1995 WL 323710, at *4-5. The decision was criticized for discouraging the voluntary filtration of Internet content, because a forum provider’s efforts to sanitize content would trigger liability that could be avoided by doing nothing. See Roommates.com, 521 F.3d at 1163.

The CDA, however, does more than just overrule Stratton Oakmont. To understand the full reach of the statute, we will need to examine some of the technical terms used in the CDA. But to put those terms in context we first quote the operative provisions of the law. Section 230(c)(1) provides as follows:

No 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.

Section 230(c)(2), which protects services that filter content, states:

No provider or user of an interactive computer service shall be held liable on account of—

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objec*1196tionable, whether or not such material is constitutionally protected; or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1). [“paragraph (1)” should probably be “sub-paragraph (A),” see U.S.C.A. § 230(c), n. 1].

Finally, § 230(e)(3) provides that “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.”

Accusearch claims immunity under § 230(c)(1). The language of that provision, quoted above, sets three limits on the immunity provided. First, immunity is available only to a “provider or user of an interactive computer service.” Id. § 230(c)(1). The term interactive computer service means

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.

Id. § 230(f)(2). Second, the liability must be based on the defendant’s having acted as a “publisher or speaker.” Id. at § 230(c)(1). Third, immunity can be claimed only with respect to “information provided by another information content provider.” Id. Accusearch contends that it satisfies these requirements. If it fails to satisfy any one of the three, it is not entitled to immunity.

1. Interactive Computer Service

With respect to the first requirement for CDA immunity, the district court ruled that Accusearch provided an interactive computer service. See Accusearch, 2007 WL 4356786, at *4. The FTC argues on appeal that Accusearch did not provide such a service because its website “did not allow for any interaction between third parties.” Aplee. Br. at 20. The FTC asserts that the CDA’s legislative history and Congress’s use of the word “interactive” evince an intent to protect only the providers of online bulletin boards. It distinguishes such boards from a website like Accusearch’s, which merely permits a user to conduct the same sort of business that it would in a retail store (or private investigator’s office). (We note, however, that the FTC’s argument would also deny immunity to nonretail websites, such as one that posted medical-journal articles online (perhaps after removing graphic pictures), unless the website also permitted direct interaction among its visitors.)

Accusearch essentially concedes the factual premise of the FTC’s argument— namely, the absence of direct interaction among users of the Abika.com website. Although Accusearch occasionally tries to portray its website as an interactive forum on which independent researchers connected with persons seeking information, it ultimately acknowledges that “all information passed between the [customer] and researcher went through Abika.com, as an intermediary.” Aplts. Reply Br. at 3.

But despite the FTC’s accurate characterization of Abika.com, its interactivity argument does not fully respect the CDA’s text. Section 230(f)(2) does not say that an interactive computer service must facilitate interaction among third parties; rather, it says that an interactive computer service is one that “provides or enables computer access by multiple users to a computer server.” 47 U.S.C. § 230(f)(2) (emphasis added). See Universal Commc’ns Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 419 (1st Cir.2007) (“web site operators ... are providers of interactive computer services” because “[a] web site *1197... enables computer access by multiple users to a computer server, namely, the server that hosts the web site.” (internal quotation marks omitted)); Batzel v. Smith, 333 F.3d 1018, 1030 (9th Cir.2003) (suggesting, but not deciding, that a website necessarily provides an interactive computer service). Accordingly, we are reluctant to embrace the FTC’s contention that one who operates a website does not thereby provide an interactive computer service unless it allows interaction among the users. Because we can resolve the matter of CDA immunity in this case without deciding whether the FTC’s contention is correct, we leave it to another day.

2. Treatment as a Publisher or Speaker

Turning to the second requirement for CDA immunity, we refrain from adopting the concurrence’s view that the CDA does not protect Accusearch because Aceusearch’s liability under the FTCA is not based on its being a publisher or speaker. According to the concurrence, “the FTC sought and ultimately held Accusearch liable for its conduct rather than for the content of the information it was offering on the Abika.com website.” Op., (Tymkovich, J., concurring) at 2. It appears to us, however, that Accusearch would not have violated the FTCA had it not “published” the confidential telephone information that it had improperly acquired. And that publication was on its website. It would seem to be irrelevant that Accusearch could have operated the same business model without use of the Internet. The concurrence thoughtfully raises an interesting point, but, as with the first requirement for CDA immunity, we choose not to resolve the immunity issue on this ground.

3. Information Content Provider

The predicate for CDA immunity on which we resolve the matter is the third requirement. A provider of an interactive computer service, such as Accusearch, may claim CDA immunity only with respect to “information provided by another information content provider.” 47 U.S.C. § 230(c)(1). Thus, an interactive computer service that is also an “information content provider” of certain content is not immune from liability arising from publication of that content. See Roommates.com, 521 F.3d at 1162; Ben Ezra, Weinstein, & Co., Inc. v. Am. Online Inc., 206 F.3d 980, 985 n. 4 (10th Cir.2000).

The CDA defines the term 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.” 47 U.S.C. § 230(f)(3). “This is a broad definition, covering even those who are responsible for the development of content only ‘in part.’ ” Universal Commc’n Sys., 478 F.3d at 419. Accordingly, there may be several information content providers with respect to a single item of information (each being “responsible,” at least “in part,” for its “creation or development”). See 47 U.S.C. § 230(f)(3).

Accusearch contends that under the plain language of the CDA it was not an information content provider, because it was not responsible for creation or development of information. We disagree. To begin with, we consider whether confidential telephone records are “developed,” within the meaning of the CDA, when, as here, they are sold to the public over the Internet.

The CDA does not define the term development. Accusearch would construe the word narrowly. It relies on two dictionary definitions, correctly noting that develop can mean to “[m]ake something new” and “[c]ome into existence.” Aplts. Am. Br. at 39 (internal quotation marks omitted). Because the information provided to *1198its customers came originally from the telecommunications carriers, it argues, it made nothing new nor brought anything into existence. But the CDA uses the phrase “creation or development of information,” 47 U.S.C. § 230(f)(3), and if the meaning of the word develop were limited to the two senses relied upon by Aecusearch, the word development would add nothing not already conveyed by the word creation. “Under a long-standing canon of statutory interpretation, one should avoid construing a statute so as to render statutory language superfluous.” McCloy v. U.S. Dept. of Agric., 351 F.3d 447, 451 (10th Cir.2003); see Roommates.com, 521 F.3d at 1168. We therefore examine whether we can reasonably construe development more broadly.

We can. When faced with an undefined statutory term, an investigation of its “core meaning” can be illuminating. United States v. Montgomery, 468 F.3d 715, 720 (10th Cir.2006); see also Muscarello v. United States, 524 U.S. 125, 128-29, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998) (investigating etymological origins of “carries” to uncover its “primary meaning”). The word develop derives from the Old French desveloper, which means, in essence, to unwrap. Webster’s Third New International Dictionary 618 (2002) (explaining that developer is composed of the word veloper, meaning “to wrap up,” and the negative prefix des). The dictionary definitions for develop correspondingly revolve around the act of drawing something out, making it “visible,” “active,” or “usable.” Id. Thus, a photograph is developed by chemical processes exposing a latent image. See id. Land is developed by harnessing its untapped potential for building or for extracting resources. See id. Likewise, when confidential telephone information was exposed to public view through Abika.com, that information was “developed.” See id. (one definition of develop is “to make actually available or usable (something previously only potentially available or usable)”).

This conclusion, however, does not end the inquiry. The question remains whether Accusearch was “ ‘responsible, in whole or in part, for the ... development of the offending content.” Roommates.com, 521 F.3d at 1162 (quoting § 230(f)(3)). That is, was it responsible for the development of the specific content that was the source of the alleged liability? The answer is “yes.”

Just as the CDA does not define development, it does not define responsible. We need not provide a complete definition of the term that will apply in all contexts; but we can say enough to resolve this case and to assuage concern that the broad meaning for development that we have adopted will undermine the purpose of immunity under the CDA.

The meaning of responsible becomes an issue under the CDA when a court is considering whether CDA immunity from liability is unavailable because one is “responsible, in whole or in part, for the creation or development of information” that is the source of the liability. In this context—responsibility for harm—the word responsible ordinarily has a normative connotation. See The Oxford English Dictionary 742 (2d ed.1998) (stating one definition of responsible as “Morally accountable for one’s actions.”). As one authority puts it: “[W]hen we say, ‘Every man is responsible for his own actions,’ we do not think definitely of any authority, law, or tribunal before which he must answer, but rather of the general law of right, the moral constitution of the universe .... ” James C. Fernald, Funk & Wagnalls Standard Handbook of Synonyms, Antonyms, and Prepositions 366 (1947). Synonyms for responsibility in this context are blame, fault, guilt, and culpability. See Oxford American Writer’s Thesaurus 747 (2d ed.2008). Accord*1199ingly, to be “responsible” for the development of offensive content, one must be more than a neutral conduit for that content. That is, one is not “responsible” for the development of offensive content if one’s conduct was neutral with respect to the offensiveness of the content (as would be the case with the typical Internet bulletin board). We would not ordinarily say that one who builds a highway is “responsible” for the use of that highway by a fleeing bank robber, even though the culprit’s escape was facilitated by the availability of the highway.

This construction of the term responsible, comports with the clear purpose of the CDA—to encourage Internet services that increase the flow of information by protecting them from liability when independent persons negligently or intentionally use those services to supply harmful content. See 47 U.S.C. § 230(a), (b). We therefore conclude that a service provider is “responsible” for the development of offensive content only if it in some way specifically encourages development of what is offensive about the content.

In the case before us, the offending content was the disclosed confidential information itself. We need not construe the word responsible to extend beyond its core meaning in this context to conclude that Accusearch was responsible for the development of that content—for the conversion of the legally protected records from confidential material to publicly exposed information. Accusearch solicited requests for such confidential information and then paid researchers to obtain it. It knowingly sought to transform virtually unknown information into a publicly available commodity. And as the district court found and the record shows, Accusearch knew that its researchers were obtaining the information through fraud or other illegality.

Accusearch argues that our decision in Ben Ezra, 206 F.3d 980, establishes its entitlement to CDA immunity. In that case the plaintiff corporation sued America Online for allegedly posting on three occasions incorrect information concerning the corporation’s stock price and share volume. Id. at 983. America Online purchased price and volume information on numerous stocks from a third-party vendor who had compiled it from “major national and international stock exchanges and stock markets.” Id. We held that America Online was protected from liability by the CDA. Id. at 986. Most relevant to this case, we said that “Plaintiff has not demonstrated [that America Online] worked so closely with [the third-party vendor] regarding the allegedly inaccurate stock information that [it] became an information content provider.” Id. at 985. Accusearch argues that because America Online was not considered an information content provider despite soliciting the relevant information for online publication, Accusearch’s own solicitation of information could not make it an information content provider either. But Accusearch takes too broad a view of what was the relevant information in Ben Ezra. Although America Online solicited stock quotations, the plaintiffs claim was based on inaccuracies in the solicited quotations. See id. at 983. The “offending content” was thus erroneous stock quotations and, unsurprisingly, America Online did not solicit the errors; indeed, it sent the vendor emails requesting that it “correct the allegedly inaccurate information.” Id. at 985. If the information solicited by America Online had been inherently unlawful—for example, if it were protected by contract or was child pornography—our reasoning would necessarily have been different. In Ben Ezra, however, America Online had done nothing to encourage what made the content offensive—its alleged inaccuracy. America On*1200line’s conduct was neutral with respect to possible errors in the stock quotations. It was therefore not responsible for the offensive content.

Our holding that Accusearch was an information content provider is supported by authority from outside this circuit. Most recently, the Ninth Circuit, sitting en banc, held that the provider of an online roommate-matching service was responsible for the development of discriminatory preferences contained in its users’ personal-profile pages. Roommates.com, 521 F.3d at 1167-68. Subscribers of the website were required to specify from a set of preselected answer choices their “sex, sexual orientation and whether [they] would bring children to a household.” Id. at 1161; see id. at 1165 & n. 17. Subscribers also had to select their “preferences in roommates with respect to the same three criteria.” Id. at 1161. For example, subscribers seeking housing had to state “whether they [were] willing to live with ‘Straight or gay’ males, only with ‘Straight’ males, only with ‘Gay’ males or with ‘No males.’ ” Id. at 1165. These preferences were then posted on a subscriber’s profile page, where they could be reviewed by other subscribers looking for a roommate match. Id. To be sure, the matching service did not place discriminatory preferences in the minds of its users. It did not, in other words, create those preferences. But the court found that by requiring its users to disclose their illicit preferences, the service provider became “much more than a passive transmitter of information provided by others; it bec[ame] the developer, at least in part, of that information.” Id. at 1166. It summarized: “[A] website helps to develop unlawful content, and thus falls within the exception to section 230, if it contributes materially to the alleged illegality of the conduct.” Id. at 1168.

That language applies to Aceusearch’s role in this case. By paying its researchers to acquire telephone records, knowing that the confidentiality of the records was protected by law, it contributed mightily to the unlawful conduct of its researchers. Indeed, Accusearch’s responsibility is more pronounced than that of Roommates.com. Roommates.com may have encouraged users to post offending content; but the offensive postings were Accusearch’s raison d’etre and it affirmatively solicited them.

An earlier Ninth Circuit case, Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir.2003), provides a useful comparison. In that case an unknown person created a bawdy dating profile for actress Christianne Carafano on the defendant’s online-dating website. See id. at 1121. To create the profile, the anonymous poster had to draft an essay and “select answers to more than fifty questions from menus providing between four and nineteen options.” Id. Some options were “sexually suggestive” and some were “innocuous.” Id. The Ninth Circuit held that the dating service was not an information content provider of the libelous profile.