Federal Trade Commission v. Accusearch Inc.

570 F.3d 1187 (10th Cir. 2009)

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Nature of the Case

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Facts

Abika.com is a website that has sold telephone records. P brought suit against D as its trade in telephone records constituted an unfair practice in violation of § 5(a) of the Federal Trade Commission Act. In placing a search order, a customer paid D an 'administrative search fee,' and selected the type of search desired, not a specific researcher or a search identified with a specific researcher. D would forward the search request to a researcher who could fulfill it. The researcher would send the results to D and bill D directly. D would then email the results to the customer and post them on the customer's Abika.com account. The customer was not provided contact information for any researcher, and unless they read the fine print, they would never know a third party was involved. D advertised access to personal telephone records. Acquisition of this information would almost inevitably require someone to violate the Telecommunications Act or to circumvent it by fraud or theft. D stopped offering telephone data after it learned that a subsidiary of one of its researchers might have acquired data fraudulently. P filed suit against D four months later. Both parties filed for summary judgment. D claimed it was immunized by the CDA, which protects Internet services from liability as publishers with respect to content provided by others. The district court granted P's motion and rejected D's assertion of immunity. It found that D's 'claim of blissful ignorance [of its researchers' misconduct] is simply not plausible in light of the facts of this case. The district court entered an injunction restricting D's future trade in telephone records and other personal information. The injunction prohibits D from trading in 'customer phone records' unless doing so would be 'clearly permitted by any law, regulation, or lawful court order,' and trading in other 'consumer personal information without the express written permission of [the consumer], unless [the] consumer personal information was lawfully obtained from publicly available information. This appeal resulted.