Federal Trade Commission v. Accusearch Inc.

FILED
United States Court of Appeals
Tenth Circuit

June 29, 2009
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

FEDERAL TRADE COMMISSION,

Plaintiff - Appellee,
v. No. 08-8003
ACCUSEARCH INC., d/b/a
Abika.com; JAY PATEL,

Defendants - Appellants,

_____________________

JENNIFER STODDART, Privacy
Commissioner of Canada,

Amicus Curiae.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
(D.C. NO. 2:06-CV-00105-WFD)

Deborah L. Roden (Gay Woodhouse with her on the briefs) of Gay Woodhouse
Law Office, P.C., Cheyenne, Wyoming, for Defendants - Appellants.

Lawrence DeMille-Wagman, Attorney, Federal Trade Commission, Washington,
D.C., (William Blumenthal, General Counsel, John F. Daly, Deputy General
Counsel for Litigation, Federal Trade Commission, Washington, D.C.; and Tracy
S. Thorleifson, Kial S. Young, Federal Trade Commission, Seattle, Washington,
with her on the brief), for Plaintiff - Appellee.

Edward R. McNicholas, Sidley Austin LLP, Washington, DC, filed an amicus
curiae brief for Jennifer Stoddart, Privacy Commissioner of Canada, in support of
Plaintiff - Appellee.
Before HARTZ, TYMKOVICH, and HOLMES, Circuit Judges.

HARTZ, Circuit Judge.

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

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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 jurisdiction 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

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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

Abika.com’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

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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).

Abika.com’s customers 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:

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 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

1
The Act does not forbid telecommunications carriers from disclosing
telephone records to (1) “initiate, render, bill, and collect for telecommunications
services”; (2) protect telecommunications carriers and customers from the
“fraudulent, abusive, or unlawful use of, or subscription to,” telecommunications
services; (3) provide certain “telemarketing, referral, or administrative services to
the customer”; and (4) “provide call location information” to (a) public-safety
personnel responding to a user’s call, (b) legal guardians and family members in
emergency situations involving “risk of death or serious physical harm,” and (c)
“providers of information or database management services” used to assist in the
provision of emergency services. 47 U.S.C. § 222(d).
2
“Customer proprietary network information” is defined to include
“information contained in bills” and “information that relates to the quantity,
technical configuration, type, destination, location, and amount of use of a
telecommunications service subscribed to by any customer.” 47 U.S.C.
§ 222(h)(1).

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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.

The 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

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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

case,” 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 Accusearch’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,

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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 overbreadth, 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)(1)(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 caused 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

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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

3
After Accusearch ceased offering telephone records, Congress enacted
the Telephone Records and Privacy Protection Act of 2006, which criminalizes
the sale and receipt of confidential telephone records. See 18 U.S.C. § 1039.

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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

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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 in 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. Servs. 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 (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

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(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:

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 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
objectionable, 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
“subparagraph (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.

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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.)

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 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 . . . 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

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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 Accusearch’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

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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

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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 its 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 Accusearch, 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 (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 desveloper 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

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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

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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).

Accordingly, 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),

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(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

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“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

plaintiff’s 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 Online’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

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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 Accusearch’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

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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. Id. at 1124. As the en banc court would later explain in

Roommates.com, “[t]he salient fact in Carafano was that the website’s

classifications of user characteristics did absolutely nothing to enhance the

defamatory sting of the message, to encourage defamation or to make defamation

easier.” Roommates.com, 521 F.3d at 1172. Although an unknown person created

Ms. Carafano’s profile in part from preselected answer choices, the menus

provided by the website did not encourage a defamatory response. See id. at 1171.

Unlike Roommates.com, which prompted the disclosure of discriminatory

preferences, the dating website provided only “neutral tools” which were

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employed to create the offending content. Id. at 1172; see Universal Commc’n

Sys., 478 F.3d at 420 (messaging board immune with respect to posts it did not

prompt); cf. Chi. Lawyers’ Comm., 519 F.3d at 671 (Craigslist did not “cause”

discriminatory housing advertisements within the meaning of the Fair Housing

Act, 42 U.S.C. § 3604(c), by hosting online marketplace where they were posted).

Accusearch attempts to portray itself as the provider of neutral tools,

stressing that it merely provided “a forum in which people advertise and request”

telephone records. Aplts. Am. Br. at 37–38. But that phrasing mischaracterizes

the record. As explained above, Accusearch solicited requests for confidential

information protected by law, paid researchers to find it, knew that the researchers

were likely to use improper methods, and charged customers who wished the

information to be disclosed. Accusearch’s actions were not “neutral” with respect

to generating offensive content; on the contrary, its actions were intended to

generate such content. Accusearch is not entitled to immunity under the CDA.

C. The Injunction

The FTCA provides that “in proper cases the Commission may seek, and

after proper proof, the court may issue, a permanent injunction.” 15 U.S.C.

§ 53(b). Although Accusearch ceased dealing in telephone records before the FTC

filed its complaint, the district court determined that prospective injunctive relief

was appropriate to prevent Accusearch from engaging in similar unfair practices

with respect to telephone records or the other information it provided.

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Accusearch, 2007 WL 4356786, at *9. Accordingly, the injunction prohibits

Accusearch from doing, among other things, the following:

(1) Trading in “customer phone records” unless doing so would be
“clearly permitted by any law, regulation, or lawful court order,”
Aplts. App., Vol. 5 at 1607; and

(2) Trading in other “consumer personal information without the
express written permission of [the consumer], unless [the]
consumer personal information was lawfully obtained from
publically available information,” id. at 1608.

The injunction defines consumer personal information as “any individually

identifiable information concerning a consumer.” Id. at 1606.

Accusearch attacks these prohibitions on two grounds, arguing that they are

(1) unnecessary and (2) unconstitutionally overbroad. Accusearch does not

challenge other aspects of the relief ordered, including the provision requiring it to

disgorge $199,692.71 in profits garnered from the sale of telephone records. We

address Accusearch’s contentions in turn.

1. Propriety of Injunctive Relief

A “court’s power to grant injunctive relief survives the discontinuance of

the illegal conduct.” United States v. W. T. Grant Co., 345 U.S. 629, 633 (1953).

When, as in this case, a defendant has ceased offending conduct, the party seeking

injunctive relief must demonstrate to the court “that there exists some cognizable

danger of recurrent violation, something more than the mere possibility which

serves to keep the case alive.” Id. In assessing the likelihood of recurrence, a

-27-
court may consider “all the circumstances,” including the “bona fides of the

expressed intent to comply, the effectiveness of the discontinuance and, in some

cases, the character of the past violations.” Id. We review the decision to grant a

permanent injunction for abuse of discretion. John Allan Co. v. Craig Allen Co.

L.L.C., 540 F.3d 1133, 1142 (10th Cir. 2008). The district court’s discretion in

this context is “necessarily broad and a strong showing of abuse must be made to

reverse it.” W. T. Grant Co., 345 U.S. at 633.

Accusearch has not persuaded us that the district court abused its discretion.

True, Accusearch ceased offering telephone records before litigation commenced.

But, as the district court noted, because Accusearch remained in the “information

brokerage business” it had the capacity to “engag[e] in similar unfair acts or

practices” in the future. Accusearch, 2007 WL 4356786, at *9; see also W.T.

Grant Co., 345 U.S. at 633 (“effectiveness of the discontinuance” is a factor in

assessing likelihood of recurrence). In Accusearch’s view it has proved the

absence of any need for prospective relief by expressing a willingness to disgorge

nearly $200,000 in ill-gotten profits. But a district court is best situated to judge

the sincerity of a litigant’s contrition, see W.T. Grant Co., 345 U.S. at 634, and

Accusearch has given us no ground to second-guess the district court’s judgment.

See United States v. Or. State Med. Soc., 343 U.S. 326, 333 (1952) (courts must

“beware of efforts to defeat injunctive relief by protestations of repentance and

reform”).

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 Accusearch also argues that the injunction was improper because 18 U.S.C.

§ 1039, enacted by Congress after this suit was filed, criminalizes the sale and

receipt of confidential telephone records absent customer consent. Id.

§ 1039(a)–(c) (Supp. 2008). Stressing that the government could prosecute under

§ 1039 if it resumed its trade in telephone records, Accusearch asserts that

prospective injunctive relief would be redundant, and, as such, improper, because

a proper injunction must “‘enhance the already existing power of the Government

to act.’” Aplts. Am. Br. at 49 (quoting New York Times Co. v. United States, 403

U.S. 713, 744 (1971) (Marshall, J., concurring)).

To be sure, injunctions against criminalized conduct have historically been

disfavored. See Nat’l Ass’n of Letter Carriers v. Indep. Postal Sys. of Am., Inc.,

470 F.2d 265, 271 (10th Cir. 1972). But in keeping with the characteristic

flexibility of equitable remedies, they have never been absolutely prohibited. See

id. An injunction can have several advantages over the threat posed by a criminal

statute. To begin with, it can encompass conduct not barred by the statute. Here,

the injunction covers all “individually identifiable” consumer information, Aplts.

App., Vol. 5 at 1606, whereas the criminal statute covers only telephone records,

see 18 U.S.C. § 1039(a)–(c), (h)(1). Also, because an injunction can be drawn

more precisely than a criminal statute, it can have a greater deterrent effect by

removing any doubt in the mind of the enjoined party that particular conduct is

forbidden. Furthermore, proving a violation of an injunction is generally less

-29-
burdensome than proving a criminal violation. For example, to violate § 1039 one

must act “knowingly and intentionally.” Id. § 1039(a)–(c). The injunction, on the

other hand, imposes no scienter requirement and the law does not necessarily

imply one. See FTC v. Freecom Commc’ns, Inc., 401 F.3d 1192, 1204 n.7 (10th

Cir. 2005) (“FTC need not prove scienter . . . to establish a § 5 violation.”); 11A

Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and

Procedure § 2960, at 382 (2d ed. 1995) (“[A] violation of [a] decree need not be

willful for a party to be held in civil contempt.”). And a violation need not be

proved to a jury beyond a reasonable doubt. See Charles Alan Wright, supra

§ 2960, at 379–80 (there is no constitutional right to a jury in civil-contempt

proceedings and the contempt must be shown only by clear and convincing

evidence, not beyond a reasonable doubt). The district court did not impose an

inconsequential injunction. Thus, Accusearch’s argument fails on its own terms.

In any event, “Congress . . . has power to provide for civil injunctive relief

against activities which adversely affect interstate commerce, and that power

extends to activities which are made criminal by state or federal law.” United

States v. Cappetto, 502 F.2d 1351, 1356 (7th Cir. 1974) (upholding injunction

against gambling activities issued under the Organized Crime Control Act of 1970,

which also made those activities a crime); accord Nat’l Ass’n of Letter Carriers,

470 F.2d at 271 (injunction against criminalized conduct proper in part because it

was authorized by statutes “purely civil in nature”). In enacting the FTCA,

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Congress gave the FTC express authority to seek permanent injunctive relief in

federal court to prevent violations of § 5(a). See 15 U.S.C. §53(b); FTC v.

Kuykendall, 371 F.3d 745, 749, 764 (10th Cir. 2004) (en banc).

In sum, the enactment of § 1039 does not undermine the propriety of the

injunction against Accusearch.

2. Breadth of the Injunction

Although the district court determined only that Accusearch’s trade in

telephone records was unfair within the meaning of the FTCA, it issued an

injunction restricting Accusearch’s trade in “any individually identifiable

information concerning a consumer.” Aplts. App., Vol. 5 at 1606. Accusearch

argues that the injunction should have been limited to its trade in telephone

records, the specific practice found to be unlawful. See FTC v. Colgate-Palmolive

Co., 380 U.S. 374, 394–95 (1965) (FTC may “fence in” offenders by enjoining

more than the specific misconduct previously engaged in, but the injunction must

bear a “reasonable relation to the unlawful practices found to exist.”). According

to Accusearch, this overbreadth violates its due-process, free-speech, and equal-

protection rights. (Because Accusearch’s discussion of equal protection does not

reference any particular feature of the injunction, we presume that the claim is tied

to the only feature that Accusearch challenges on appeal—namely, its coverage of

information other than telephone records.)

-31-
 Accusearch, however, not only failed to preserve this claim of error below,

it invited the alleged error. After the district court granted the FTC summary

judgment, the parties submitted briefs on the propriety and scope of injunctive

relief. Accusearch argued that an injunction was unnecessary and that, if the court

disagreed, injunctive relief should be limited in certain respects. In connection

with this alternate argument, Accusearch submitted a proposed injunctive order

that had been “negotiated” with the FTC. Aplts. App., Vol. 5 at 1409. The

proposed injunction set forth agreed-upon language and denoted several areas in

which the parties could not reach consensus. Among the agreed-upon provisions

were Section II, entitled “Prohibited Business Activities,” which bars dealings in

“consumer personal information,” and the definition of that term as “any

individually identifiable information concerning a consumer.” FTC v. Accusearch,

Inc., No. 06-CV-105-D (Defs. Br. on Injunctive Relief, Ex. A at 2–5, Nov. 19,

2007).

Curiously, Accusearch submitted the proposed injunction as an attachment

to a district-court brief in which it argued that the injunctive relief sought by the

FTC would be overbroad because it was not limited to telephone records but

covered “all consumer information.” Aplts. App., Vol. 5 at 1411. That is,

Accusearch appeared to object to provisions to which it had stipulated, perhaps

indicating a clerical error or a drafting oversight. The FTC’s responding brief

took note of this inconsistency and reminded Accusearch that it had specifically

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agreed to those provisions extending the injunction’s coverage beyond telephone

records. In reply, Accusearch made no effort to clarify its position or retract any

stipulation in the proposed order. With no reason to doubt the stipulated language,

the district court understandably adopted it verbatim.

The invited-error doctrine “precludes a party from arguing that the district

court erred in adopting a proposition that the party had urged the district court to

adopt.” United States v. Deberry, 430 F.3d 1294, 1302 (10th Cir. 2005). Thus, a

party whose proposed order is entered as a judgment may not challenge errors

within it on appeal. See Morrison Knudsen Corp. v. Ground Improvement

Techniques, Inc., 532 F.3d 1063, 1072 (10th Cir. 2008). The doctrine applies in

this case to bar Accusearch from challenging language that it proposed jointly with

the FTC. See Lyles v. Am. Hoist & Derrick Co., 614 F.2d 691, 694 (10th Cir.

1980) (“rulings of a trial court in accordance with stipulations that are clear and

unambiguous will not be considered erroneous on appeal”). Accordingly,

Accusearch’s due-process, free-speech, and equal-protection arguments, which are

premised on the breadth of the injunction, are waived and fail.

III. CONCLUSION

We AFFIRM the judgment of the district court.

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08-8003, F.T.C. v. Accusearch Inc. DBA Abika.com & Jay Patel

Tymkovich, J., concurring.

I write separately to emphasize what I see as an unnecessary extension of

the CDA’s terms “responsible” and “development,” thereby widening the scope of

what constitutes an “information content provider” with respect to particular

information under the Act. See 47 U.S.C. § 230(c)(1), (f)(3).

The majority holds that by soliciting third-parties to obtain and then

exposing the confidential telephone records to public view, Accusearch is

responsible—at least in part—for developing that information. Under this

definition, the line between passive posting of tortious or unlawful commentary,

news articles, or other previously unpublished information and content

development depends on an amorphous analysis of the motivations of the content

provider in soliciting or acquiring that information. In the majority’s view, a

content provider seeking out the information in good faith may be able to obtain

CDA immunity for any subsequent liability, as it would not have been

“responsible, in whole or in part, for the . . . development of [that] information.”

§ 230(f)(3). If the provider’s motivations are not in good faith, however, the

majority’s approach transforms the provider into a developer of that information.

The provider would then be deemed the information content provider for that

information and lose its entitlement to CDA immunity. Instead of embarking on

this path, I would avoid the need to interpret the CDA in the first instance.
 I agree with the majority that Accusearch violated the FTCA, though I reach

this conclusion because I believe 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. Section 230 only immunizes publishers or speakers for

the content of the information from other providers that they make public. §

230(c)(1) (“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.”). The CDA says nothing about immunizing publishers or

speakers for their own conduct in acquiring the information. Indeed, other courts

have explicitly recognized this distinction. E.g., 800-JR Cigar, Inc. v. GoTo.com,

Inc., 437 F. Supp. 2d 273, 295 (D.N.J. 2006) (“[I]mmunity under the Act applies

to any cause of action that would make service providers liable for information

originating with a third-party user of the service. Immunity does not seem to fit

here because the alleged fraud is the use of the trademark name in the bidding

process, and not solely the information from third parties that appears on the

search results page. It is not the purpose of the Act to shield entities from claims

of fraud and abuse arising from their own pay-for-priority advertising business,

rather than from the actions of third parties.”); Mazur v. eBay Inc., No. C 07-

03967 MHP, 2008 WL 618988, at *9, 12 (N.D. Cal. Mar. 4, 2008) (“The CDA

does not immunize [a content provider] for its own fraudulent misconduct. . . .

[Here,] eBay’s statement regarding safety affects and creates an expectation

-2-
regarding the procedures and manner in which the auction is conducted and

consequently goes beyond traditional editorial discretion.”).

A recent Ninth Circuit case succinctly summed up the scope of Section 230

immunity with respect to various torts, stating:

[W]hat matters is whether the cause of action inherently requires the
court to treat the defendant as the “publisher or speaker” of content
provided by another. To put it another way, courts must ask whether the
duty that the plaintiff alleges the defendant violated derives from the
defendant’s status or conduct as a “publisher or speaker.” If it does,
section 230(c)(1) precludes liability.

Barnes v. Yahoo!, Inc., 565 F.3d 560, 566 (9th Cir. 2009).

To make clear how the FTC sought to hold Accusearch liable, a quick

review of Accusearch’s conduct is helpful. Through its Abika.com website,

Accusearch offered paying consumers the opportunity to obtain private

confidential telephone records of almost any individual with a cellular or landline

telephone. To fulfill a consumer’s request for such information, Accusearch

would solicit and ultimately enlist various third-party “researchers” to “dig up”

these confidential records. These third-party “researchers” would use various

fraudulent or unlawful means to obtain these records from telecommunications

carriers in violation of the Telecommunications Act, § 222. The “researchers”

would then sell the records to Accusearch.

In its complaint, the FTC expressly addressed the conduct for which it

sought to hold Accusearch liable. In particular, using Section 5(a) of the FTC Act,

-3-
15 U.S.C. § 45(a), the FTC contended Accusearch “surreptitiously obtain[ed] and

s[old] confidential customer phone records without the customer’s knowledge or

authorization.” Aplt. App., Vol. I at 19 ¶ 1. In reference to Accusearch’s

business model, the FTC noted that “[f]or a fee, Defendants have offered to obtain

‘Details of incoming or outgoing calls from any phone number, prepaid calling

card or Internet Phone. Phone searches are available for every country of the

world.’” Id. at 21 ¶ 9. Further, and most importantly, the FTC alleged (and

ultimately proved):

The account holders have not authorized the Defendants to obtain access
to or sell their confidential customer phone records. Instead, to obtain
such information, Defendants have used, or caused others to use, false
pretenses, fraudulent statements, fraudulent or stolen documents or
other misrepresentations, including posing as a customer of a
telecommunications carrier, to induce officers, employees, or agents of
telecommunications carriers to disclose confidential customer phone
records. Defendants have sold the confidential customer phone records
that they have obtained to their clients.

Id. at 21–22 ¶ 10 (emphasis added). 4 As its cause of action against Accusearch,

the FTC claimed “Accusearch violated the FTCA by ‘directly or through their

employees or agents, . . . obtain[ing] and s[elling] to third parties confidential

4
To satisfy the injury prong for FTCA liability, the FTC claimed the
“invasion of privacy and security resulting from obtaining and selling confidential
customer phone records without the consumers’ authorization causes substantial
harm to consumers and the public, including, but not limited to, endangering the
health and safety of consumers.” Id. at 22 ¶ 11.

-4-
customer proprietary network information without the knowledge or consent of the

customer.’” Id. at 22 ¶ 12.

As is clear from the complaint, the FTC’s allegations of FTCA violations

stemmed not from the content of the information Accusearch was disclosing (or

developing), but from Accusearch’s own conduct in (1) offering the information

for sale, (2) soliciting and encouraging third-parties to violate the law in obtaining

the information, and (3) ultimately paying these third parties and selling the

information to consumers. Accusearch’s duty to refrain from engaging in these

unfair business practices does not derive from its status or conduct as an Internet

website that publishes content. 5 Rather, the duty the FTC alleged Accusearch

violated derives from the expectations that a business would not engage in

unlawful or unfair business practices in general (whether the business is a

conventional bricks-and-mortar operation or exists entirely on the World Wide

Web). See Barnes, 565 F.3d at 566. While Internet publication of the confidential

phone data, by itself, may very well be protected by the CDA, the CDA does not

immunize, expressly or implicitly, the manner in which Accusearch conducted its

5
If Accusearch had run a traditional business out of a physical location
and offered similar services, it would seem the FTC would have the same unfair
business practices complaint. Nothing would immunize Accusearch’s conduct
had it chosen to deliver the confidential telephone records to requesters through
hard copy print-outs either in person or through the mail. Accusearch’s duty to
refrain from engaging in the solicitation and distribution of unlawfully-obtained
confidential telephone records should not depend on the medium within which it
chooses to operate.

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business. In sum, the CDA does not extend to immunize a party’s conduct outside

the realm of the Internet just because it relates to the publishing of information on

the Internet.

Rather than follow the majority’s disposition of this issue—extending the

definitions of “responsible” and “develop” to include solicitation of information

based on consumer selections off of Accusearch’s website—I would limit the

analysis to whether the CDA even applies in the first place. I would conclude that

it does not, and that Accusearch therefore was liable for its unfair business

practices in violation of the FTCA.

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