Metropolitan News-Enterprise


Friday, April 4, 2008


Page 3


Court: No Housing Discrimination Immunity for Web Site


By SHERRI M. OKAMOTO, Staff Writer


A Web site that matched people renting rooms with those looking for a place to live which required users to disclose their gender, family status and sexual orientation in order to utilize its services is not immune from civil liability for discrimination the Ninth U.S. Circuit Court of Appeals held yesterday.

Partially reversing a ruling by U.S. District Judge Percy Anderson of the Centeral District of California that the Communications Decency Act’s grant of immunity for content created by third parties applied to, a divided court sitting en banc held that the Web site was not immune from liability over claims that it requiring subscribers to answer a questionnaire and used their answers to limit access to housing.

However, the court did conclude that the Web site was immune for any discriminatory content  submitted by subscribers in response to the site’s generic prompt for “Additional Comments.” LLC operated a Web site which allowed subscribers to search listings or post housing opportunities to pair roommates together.

Before a subscriber could utilize the site’s services, the user was required to create a profile based on a series of multiple-choice questions regarding gender, sexual orientation, and whether children would be present in the household, as well as preferences for roommates under the same criteria. The site also encouraged users to provide “Additional Comments” describing themselves and their desired roommate.

The information was then subject to a search and email notification system which filtered listings or directed emails to subscribers based upon a user’s reported characteristics.

The Fair Housing Councils of the San Fernando Valley and San Diego filed suit against the site, alleging violation of the federal Fair Housing Act.

But Anderson, concluding that the the Communications Decency Act’s grant of immunity protected the site, dismissed the Councils’ claims without considering whether had violated the Fair Housing Act.

The Communications Decency Act immunizes providers of interactive computer services from liability if it only passively displays content that was created by third parties. However, if the Web site creates content, or is responsible in whole or part for developing content, then the site may be subject to liability for that content.

Writing for the en banc panel, Chief Judge Alex Kozinski noted that “asking questions certainly can violate the Fair Housing Act and analogous laws in the physical world…, [and] they don’t magically become lawful when asked electronically online.”

He continued:

“The Communications Decency Act was not meant to create a lawless no man’s-land on the Internet.”

Kozinski opined that was more than a passive transmitter of information provided by its subscribers because it required that its subscribers provide answers to discriminatory questions as a condition of use. By posing unlawful questions, he wrote, Roommates solicited answers, and therefore “developed” unlawful content.

“When a business enterprise extracts…information from potential customers as a condition of accepting them as clients,” he wrote, “it is no stretch to say that the enterprise is responsible, at least in part, for developing that information.”

In a partial dissent, Judge M. Margaret McKeown took a narrower view of what it meant to “develop” information, and reasoned that because“[a]ll Roommate does is to provide a form with options for standardized answers.” She also pointed out that the content was “created solely by” the subscriber, and not at all developed by

McKeown suggested that’s search and email notification systems were simply “sorting and matching” user information in a manner “no different than that performed by a generic search engine.”

She wrote:

“The majority’s definition of ‘development’ would transform every interactive site into an information content provider and the result would render illusory any immunity under [the Communications Decency Act]. Virtually every site could be responsible in part for developing content.”

However, Kozinski countered that the dissent’s interpretation “strains both credulity and English,” and opined that was at least partially responsible for the content in each subscriber’s profile because each profile was a “collaborative effort” between and the subscriber.

He also reasoned that the Web site lacked immunity for using the answers generated by the unlawful questions to limit subscribers’ access to housing in the search and email notification systems, writing, “[i]t is…no different from a real estate broker saying to a client: ‘Sorry, sir, but I can’t show you any listings on this block because you are [gay/female/black/a parent].’”

The majority also differentiated Roommate’s search and filter functions from generic search engines.

Noting that “designed its search and email systems to limit the listings available to subscribers based on sex, sexual orientation and presence of children... [and] selected the criteria used to hide listings,” Kozinski said that ordinary search engines do not use unlawful criteria to limit the scope of searches conducted on them, and wrote that “providing neutral tools to carry out what may be unlawful or illicit searches does not amount to ‘development’ for purposes of the immunity exception.”

Following this logic, the majority held that maintained its immunity for discriminatory content included by subscribers in the “Additional Comments” section, which the Web site published as written.

Because the site did not provide any guidance as to what comments a subscriber should include or suggest that subscribers input discriminatory preferences, the majority reasoned, did not contribute to developing this content.

“This is precisely the kind of situation for which section 230 was designed to provide immunity,” Kozinski added.

He continued:

“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.”

Judges Stephen Reinhardt, Barry G. Silverman, William A. Fletcher, Raymond C. Fisher, Richard A. Paez, Milan D. Smith, Jr. and N. Randy Smith joined Kozinski in his majority opinion.

Judges Pamela Ann Rymer and Carlos T. Bea joined McKeown in her partial dissent.

Michael Evans, who represented the Fair Housing Councils said that the decision, “really focuses on Roommates’ practices, [which were] designed to facilitate discrimination. If a website materially contributes to unlawful content, it can’t be immune from that content. This principle is well-founded.”

He added:

“People’s housing opportunities should not be limited based on their protected status. You can’t require someone to disclose his protected status as a condition to participating in the housing marketplace.

“And those in the housing industry…cannot design their services so as to limit people’s access to housing information or opportunities on the basis of their protected status.”

Timothy L. Alger, who represented, issued a statement which stated: “[W]e agree with Judge McKeown that this decision represents a significant departure from what has been settled law across the country. It is disturbing that the court’s majority concludes that the mere allegation of an unlawful posting can trump the immunity for Internet-based services.”

The statement continued:

“We believe the government has no business regulating the selection of roommates or advertising for roommates…. We’re confident that we will ultimately prevail and the courts will determine that does not violate any law.”

The case is Fair Housing Council of San Fernando Valley v. LLC, No. 04-56916.


Copyright 2008, Metropolitan News Company