FTC v. Accusearch Inc.
Issue
Whether Accusearch was immune under § 230 for operating a data-broker service that sold confidential telephone records obtained by paid third-party researchers through illegal pretexting.
What Happened
Accusearch, Inc. operated Abika.com, a website that sold various categories of personal data to paying customers. From approximately February 2003 to January 2006, Abika.com advertised access to private telephone records — including the numbers dialed from any cell or landline, and the date, time, and duration of calls. When a customer ordered telephone records, Accusearch forwarded the request to one of its paid third-party researchers. The researchers obtained the records by pretexting — impersonating account holders or using fraud to extract the records from telecommunications carriers — in violation of the Telecommunications Act of 1996. The researchers sent results to Accusearch, which then delivered them to customers. Accusearch required its researchers to certify compliance with applicable law, but the records could not have been obtained legally. The FTC brought an enforcement action under § 5(a) of the FTC Act, alleging an unfair trade practice. The district court granted summary judgment to the FTC and entered an injunction. The Tenth Circuit affirmed. On the § 230 defense, Judge Hartz held that Accusearch was not a passive conduit for third-party content — it was itself an "information content provider" with respect to the telephone records because it was responsible for their development. The court adopted a material contribution analysis: Accusearch specifically requested that researchers obtain content whose acquisition necessarily required illegal conduct. By directing third parties to commit unlawful acts to produce content for sale, Accusearch materially contributed to the unlawful nature of that content and lost § 230 immunity.
Why It Matters
Applied the material contribution standard in the Tenth Circuit and confirmed that a data broker loses § 230 immunity when its business model directs third parties to acquire content through inherently illegal means. Contrasts with the Fourth Circuit's Henderson v. Source for Public Data, where a data broker that gathered public records lawfully was granted § 230 protection. Together, Accusearch and Henderson bracket the outer limits of § 230 immunity for the data-broker industry.
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