## Facts

- Accusearch, Inc. operated Abika.com, a website selling various “information products,” including detailed consumer telephone call records.
- From about February 2003 to January 2006, Accusearch sold confidential records showing incoming and outgoing calls for specific phone numbers.
- Accusearch obtained the records by soliciting, paying, and purchasing them from third-party “researchers,” then resold them to customers through Abika.com.
- The vendors acquired the records through unlawful methods such as deception (“pretexting”), and Accusearch knew the records were obtained illegally given their confidential status.
- Accusearch stopped selling telephone records in January 2006 but continued operating the website and selling other products.
- The FTC brought an enforcement action under § 5(a) of the FTC Act alleging the phone-record trafficking was an unfair practice; Accusearch invoked CDA § 230 as a defense.

## Issues

1. Whether selling confidential telephone records obtained without consumer authorization constitutes an “unfair” practice under § 5(a) of the FTC Act, even absent a separate statute directly prohibiting Accusearch’s precise conduct.
2. Whether 47 U.S.C. § 230(c)(1) immunizes Accusearch from FTC liability as an interactive computer service, or whether Accusearch was an “information content provider” because it developed the unlawful information.

## Decision

- The Tenth Circuit affirmed summary judgment for the FTC.
- The court held Accusearch’s acquisition and sale of confidential telephone records without consumer consent was an unfair practice under § 5(a).
- The court held CDA § 230(c)(1) immunity did not apply because Accusearch was an “information content provider” with respect to the phone records it marketed.
- The court affirmed a permanent injunction barring the sale of such records and affirmed disgorgement of $199,692.71 in profits.
- The court rejected the argument that the FTC was equitably estopped based on alleged prior nonenforcement against similar brokers.

## Legal Principles

- A practice is “unfair” under § 5(a) where it causes or is likely to cause substantial consumer injury, the injury is not reasonably avoidable, and the injury is not outweighed by countervailing benefits to consumers or competition.
- The FTC’s unfairness authority can reach harmful and unjustified conduct even if no separate statute expressly and specifically prohibits the exact practice at issue.
- CDA § 230(c)(1) does not protect a defendant for information it is “responsible, in whole or in part, for the creation or development of,” making it an “information content provider” under § 230(f)(3).
- A website is outside § 230 immunity when it materially participates in producing unlawful content by soliciting, commissioning, and paying for the wrongful information product, rather than merely hosting third-party content.

## Conclusion

The Tenth Circuit held that brokering confidential consumer phone records without authorization is an unfair practice under the FTC Act and that a website that solicits and pays for such records “develops” the unlawful content and is not shielded by CDA § 230, supporting injunctive relief and disgorgement.


F.T.C. v. Accusearch Inc., 570 F.3d 1187 (10th Cir. 2009)