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Straight or Gay? Court Says Web Site Can't Ask
Thursday, April 3, 2008
SAN FRANCISCO -- A roommate-finding site cannot require users to disclose
their sexual orientation, a U.S. appeals court ruled on Thursday, in the
latest skirmish over whether anti-discrimination rules apply to the Web.
The U.S. 9th Circuit Court of Appeals said Roommates.com, which obliges
users to list their sexual orientation, was different than Internet sites
where people can volunteer or withhold personal information.
To inquire electronically about sexual orientation would not be different
from asking people in person or by telephone if they were black or Jewish
before conducting business, the panel said in an 8-3 ruling that partly
overturns a lower federal court decision.
"If such screening is prohibited when practiced in person or by telephone,
we see no reason why Congress would have wanted to make it lawful to profit
from it online," 9th Circuit chief judge Alex Kozinski wrote. "Not only does
Roommate ask these questions, Roommate makes answering the discriminatory
questions a condition of doing business."
Roommates.com says it offers more than 100,000 rental listings on its site
across the United States and is owned by Roommate.com LLC.
The court contrasted such requests for information with online search
engines such as Google, which could allow people to search for terms such as
"white roommate."
'CLOSE CASES'
"Web sites are complicated enterprises, and there will always be close cases
where a clever lawyer could argue that something the Web site operator did
encouraged the illegality," Kozinski wrote. "Such close cases, we believe,
must be resolved in favor of immunity."
"Where it is very clear that the Web site directly participates in
developing the alleged illegality -- as it is clear here with respect to
Roommate's questions, answers and the resulting profile pages -- immunity
will be lost."
A Roommates.com section allowing users to add additional comments of their
choosing is immune from liability as outlined in the 1996 Communications
Decency Act, the San Francisco-based court found.
Congress "didn't intend to prevent the enforcement of all laws online," the
court said. "Rather, it sought to encourage interactive computer services
that provide users neutral tools to post content online to police that
content without fear that ... they would become liable for every single
message posted by third parties on their Web site," it said.
Three judges dissented, saying the court was creating a dangerous precedent
and future confusion for Internet firms.
"The majority's unprecedented expansion of liability for Internet service
providers threatens to chill the robust development of the Internet that
Congress envisioned," Judge Margaret McKeown wrote.
Roommates.com "should be afforded no less protection than Google, Yahoo, or
other search engines."
The Fair Housing Council of San Fernando Valley and the Fair Housing Council
of San Diego filed suit against the Web site, claiming it violated the Fair
Housing Act and various state laws.
Straight or Gay? Court Says Web Site Can't Ask
Thursday, April 3, 2008
SAN FRANCISCO -- A roommate-finding site cannot require users to disclose
their sexual orientation, a U.S. appeals court ruled on Thursday, in the
latest skirmish over whether anti-discrimination rules apply to the Web.
The U.S. 9th Circuit Court of Appeals said Roommates.com, which obliges
users to list their sexual orientation, was different than Internet sites
where people can volunteer or withhold personal information.
To inquire electronically about sexual orientation would not be different
from asking people in person or by telephone if they were black or Jewish
before conducting business, the panel said in an 8-3 ruling that partly
overturns a lower federal court decision.
"If such screening is prohibited when practiced in person or by telephone,
we see no reason why Congress would have wanted to make it lawful to profit
from it online," 9th Circuit chief judge Alex Kozinski wrote. "Not only does
Roommate ask these questions, Roommate makes answering the discriminatory
questions a condition of doing business."
Roommates.com says it offers more than 100,000 rental listings on its site
across the United States and is owned by Roommate.com LLC.
The court contrasted such requests for information with online search
engines such as Google, which could allow people to search for terms such as
"white roommate."
'CLOSE CASES'
"Web sites are complicated enterprises, and there will always be close cases
where a clever lawyer could argue that something the Web site operator did
encouraged the illegality," Kozinski wrote. "Such close cases, we believe,
must be resolved in favor of immunity."
"Where it is very clear that the Web site directly participates in
developing the alleged illegality -- as it is clear here with respect to
Roommate's questions, answers and the resulting profile pages -- immunity
will be lost."
A Roommates.com section allowing users to add additional comments of their
choosing is immune from liability as outlined in the 1996 Communications
Decency Act, the San Francisco-based court found.
Congress "didn't intend to prevent the enforcement of all laws online," the
court said. "Rather, it sought to encourage interactive computer services
that provide users neutral tools to post content online to police that
content without fear that ... they would become liable for every single
message posted by third parties on their Web site," it said.
Three judges dissented, saying the court was creating a dangerous precedent
and future confusion for Internet firms.
"The majority's unprecedented expansion of liability for Internet service
providers threatens to chill the robust development of the Internet that
Congress envisioned," Judge Margaret McKeown wrote.
Roommates.com "should be afforded no less protection than Google, Yahoo, or
other search engines."
The Fair Housing Council of San Fernando Valley and the Fair Housing Council
of San Diego filed suit against the Web site, claiming it violated the Fair
Housing Act and various state laws.
