Drawing a line on Web bias
The law may temper the freewheeling nature of the Internet after all.
The 9th U.S. Circuit Court of Appeals decided Thursday that a website may be found liable for violating fair housing laws by matching roommates according to gender, sexual orientation and parenthood.
Federal law protecting websites “was not meant to create a lawless, no-man’s land on the Internet,” the court in San Francisco said in an 8-3 ruling.
The judges said a site called Roommates.com may be brought to trial for possibly violating anti-discrimination laws because it requires users to provide information about gender, sexual orientation and whether they have children, and then uses the information to screen people for matches.
“A real estate broker may not inquire as to the race of a prospective buyer, and an employer may not inquire as to the religion of a prospective employee,” Chief Judge Alex Kozinski wrote for the majority. “If such questions are unlawful when posed face-to-face by telephone, they don’t magically become lawful when asked electronically online.”
The ruling dealt a major blow to the immunity shield that federal law has provided to nurture Internet expansion. Lawyers in the case said the trend in federal courts had been to protect websites from liability.
The three judges who dissented called the ruling an “unprecedented expansion of liability” that could chill the Internet’s growth. They said the decision was at odds with rulings by five other federal appeals courts and threatened protections for all interactive sites.
Only three weeks ago, the 7th Circuit Court of Appeals in Chicago rejected a similar fair housing challenge to classified advertising site Craigslist.
The decision “will make it exceedingly difficult for website providers to know whether their activities will be considered immune” under federal law, Judge M. Margaret McKeown wrote for the dissenters.
But Thursday’s majority said Roommates.com differed from the other sites because it was not a mere passive conduit of information. Site users are required to select from drop-down menus whether they want to live with “straight or gay” males, only with “straight” males, only with “gay” males or with “no males,” the court said.
“Roommate makes answering the discriminatory questions a condition of doing business,” Kozinski said. The singular form, Roommate.com, is the legal name for the site Roommates.com
Timothy Alger, a lawyer for the website, said the business, started several years ago by three brothers in Arizona, was considering an appeal to the U.S. Supreme Court. He said Roommates.com was the largest roommate matching service in the country and questioned whether the ruling would have implications for similar sites that find roommates specifically for gays or members of a particular religious faith.
“We’re neutral,” Alger said. “We don’t have a dog in the fight. A woman can search for a man, a straight person can search for a gay person or have no preference.
“We don’t compel people to state preferences. They can state no preference.”
The ruling sends the case down to the trial court to determine whether the site violated housing laws. The federal district court in Los Angeles had dismissed the lawsuit, filed in 2003 by the Fair Housing Councils of the San Fernando Valley and San Diego. Alger said the company had not changed its site in response to the suit.
Christopher Brancart, one of the lawyers for the fair housing groups, said the ruling showed that “websites are responsible for their own conduct and their own speech, and if that conduct and that speech would break the law in the physical world, the fact they put it on the Internet does not immunize them.”
Any site that screens and steers customers based on personal characteristics might now be liable under civil rights laws, he said.
Kozinski, however, insisted that the ruling’s effect would be limited. The court said a portion of Roommates.com that solicited comments, no matter how biased, was protected by law because it did not encourage illegal activity.
“The message to website operators is clear: If you don’t encourage illegal content, or design your website to require users to input illegal content, you will be immune,” Kozinski wrote.
The court said that Roommates.com differed significantly from Google Inc., Yahoo Inc. and other search engines because the roommate site “designed its system to use allegedly unlawful criteria.”
Dating websites that require users to answer similar questions are not liable, the ruling said, because discrimination in choosing a partner is not illegal.
“It is perfectly legal to discriminate along those lines in dating, and thus there can be no claim based solely on the content of these questions,” the majority opinion said.