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
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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
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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.)
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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,
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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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Federal Trade Commission v. Accusearch Inc.
Court: Court of Appeals for the Tenth Circuit
Date filed: 2009-06-29
Citations: 570 F.3d 1187
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