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Appeals Court Denies Safe Harbor for Roommates.com 253

Posted by ScuttleMonkey
from the appeals-court-says-don't-be-a-dick dept.
Mariner writes "The Ninth Circuit Court of Appeals denied Roommates.com Safe Harbor status under the Communications Decency Act in a lawsuit brought by the Fair Housing Councils of San Fernando Valley and San Diego. Roommates.com was accused of helping landlords discriminate against certain kinds of tenants due to a couple of questions on the Roommates.com registration form: gender and sexual orientation. 'Though it refused to rule on whether Roommates.com actually violated the Fair Housing Act, the Court did find that it lost Section 230 immunity because it required users to enter that information in order to proceed. As Judge Alex Kozinski put it in his opinion, "if it is responsible, in whole or in part, for creating or developing the information, it becomes a content provider and is not entitled to CDA immunity."'"
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Appeals Court Denies Safe Harbor for Roommates.com

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  • by Anonymous Coward on Wednesday May 16, 2007 @05:45PM (#19152003)
    You don't have to get all pissy about the "no fags or bitches" part of my flier.
  • I don't see how a content site that collects confidential information that may be used in a screening process can possibly be considered a common carrier under anyone's definition of the term.
    • by jmorris42 (1458) * <jmorris.beau@org> on Wednesday May 16, 2007 @06:31PM (#19152661)
      > I don't see how a content site that collects confidential information that may be used in a
      > screening process can possibly be considered a common carrier under anyone's definition of the term.

      You are correct... as far as that reasoning goes. But the CORRECT ruling (yea, good luck getting a sane ruling in CA) would have been to toss the case on the grounds that neither the "Fair Housing Act" nor the CDA pass Constituitional muster. The CDA fails on 1st and 10th Amendment grounds and the FHA on 10th. So it should have been tossed back into state courts.

      Listen up pinheads, people have the right to be wrong. At least 'wrong' from your point of view. Since Stallman already has claimed Freedom Zero call this one Freedom -1. For if you claim the right to tell someone they are wrong and must agree with you, you are asserting yourself as their master. And the odds approach 100% that sooner or later everyone else is going to think one of your cherished beliefs/practices is 'wrong' and impose their will on you. And having given up the principles of Freedom you will have no moral argument to offer as to why you should be left in peace.

      Tolerence isn't allowing people you agree with to do things you approve of, it is permitting people you don't like to do things you disapprove of so long as they don't use force or fraud against others. Yes that means yo have to tolerate the intolerant sometimes.
      • by gmack (197796)
        That's partially true. I have all the rights in the world to dislike you for whatever reason I want but I should not and do not have any right to deny you what sould be rightfully yours.

        I cannot deny you a job because I don't like your non work related lifesyle.

        I cannot deny you a place to live over things that don't directly affect me.

        And that is why it's only fair that certain questions cannot be asked of potential tennants.
        • Re: (Score:3, Insightful)

          by Gospodin (547743)

          I cannot deny you a job because I don't like your non work related lifesyle.

          Am I the one hiring you? Then I can deny you a job for any reason I please. Example: I am denying you a job right now (assuming you don't currently work for me, which I think is likely :). You can't make me hire you, regardless of why you think I'm not.

          I cannot deny you a place to live over things that don't directly affect me.

          Am I the one renting or selling you the place? Then I can in fact choose not to rent or sell for any r

          • You do not have a fundamental human right to allocate my resources for me.
            You can choose who to associate with in your private life. If you rent a room or hire somebody, Congress has the right to regulate it.
            When you are engaging in commerce, your freedoms can be abridged.
            • Fixed that for you.
              • Interstate commerce - which given case law, basically covers all commerce (not that it's right).
                • Re: (Score:3, Insightful)

                  by Gospodin (547743)

                  Incidentally, I'm perfectly willing to concede that case law, SCOTUS decisions, etc. are against me on this. But that still doesn't make it a fundamental human right.

                • Re: (Score:3, Insightful)

                  by DragonWriter (970822)

                  Interstate commerce - which given case law, basically covers all commerce (not that it's right).


                  It actually, per the case law, covers all activities which might reasonably impact interstate markets; this includes activities not commercial in themselves (such as, at the outer extreme, growing wheat—the textbook example—or marijuana—from a more recent case—at home for one's own personal consumption).

          • Re: (Score:2, Insightful)

            by intchanter (1035396)
            I'd have rather just modded the parent up, because it makes a point that I think more persons on Slashdot, and more importantly everywhere else need to understand:

            If you want to have rights, you must relinquish the "right" to force others to do what you want. Conversely, if you force others to do what you want, you will eventually lose all your rights, because they will expect to be able to do the same.

            How would things be different if everybody understood this? I would expect a drastic reduction in wars,
            • Re: (Score:3, Insightful)

              by gmack (197796)
              Except that given human nature that's not practical.

              Throughout history there have been people who for whatever reason want to take advantage of others so we are stuck making laws to prevent that. Laws that are supposed to make people play nice together. For instance I'm not allowed to just walk up and punch you in the face no matter how good an idea I think that is.

              My right to do what I want doesn't infringe on your right to live without being punched in the face.

              Employment and housing laws are to make su
          • by vidarh (309115) <vidar@hokstad.com> on Wednesday May 16, 2007 @07:46PM (#19153643) Homepage Journal
            You might think that is how it should be, but legally you don't have the right to deny people a job for any reason or choose to rent or sell for any reason you please - a long range of reasons are illegal discrimination whether you like it or not.
      • Re: (Score:3, Insightful)

        by DragonWriter (970822)

        But the CORRECT ruling (yea, good luck getting a sane ruling in CA) would have been to toss the case on the grounds that neither the "Fair Housing Act" nor the CDA pass Constituitional muster.

        Unless a novel Constitutional argument was made, that would have been an incorrect ruling by the appeals court, since, any merits of the past Constitutional arguments that have been made and rejected by the Supreme Court aside, the most common Constitutional arguments against those acts have been made previously, and

      • <blockquote><i>Tolerence isn't allowing people you agree with to do things you approve of, it is permitting people you don't like to do things you disapprove of so long as they don't use force or fraud against others.</i></blockquote>

        I think the problem here is the definition of "force". In a very real way, discriminating landlords are "forcing" potential tenants to live somewhere else. I don't think of it as much different from making black people sit at the back of the bus. (Yes
  • Roommates.com (Score:2, Interesting)

    by Mazin07 (999269)
    I don't claim any prior knowledge of roommates.com at all, but... 1. Were these fields optional? I wouldn't expect something like orientation to be a required question. The judge says it is, but I want to hear from somebody who's used the site. 2. Are all people who look at applications considered landlords, or only some of them?
    • Re: (Score:2, Informative)

      by john83 (923470)

      1. Were these fields optional?...
      I realise that no one reads TFA, but even the summary says, "...the Court did find that it lost Section 230 immunity because it required users to enter that information in order to proceed."
      • Re: (Score:3, Insightful)

        by Rycross (836649)

        Well at least thats better than not reading the comments one is responding to:

        The judge says it is, but I want to hear from somebody who's used the site.
      • by Adambomb (118938) *
        Because slashdot summaries are always factually accurate in every way shape or form, and never distort or misrepresent the content of the article.

        oh wait =)

        Probably why the parent wanted to hear from a USER of the site, not parroting. However, I'd be amazed if a ruling like that went through with the initial premise being exactly the opposite.
    • by Lockejaw (955650)
      1. IIRC, yes, these fields are optional. Actually, I'm pretty sure the only required fields are those that have to do with location. Your contact info doesn't go on your profile -- you exchange it through private messages.

      2. They aren't necessarily landlords. Roommates.com splits profiles into "I have a room" and "I'm looking for a room." Those in category two might be landlords, but they are often renters looking to fill a vacancy in their rented house or set up a sublease.
    • by saforrest (184929)
      Were these fields optional?

      I'm not sure it would make a legal difference whether they were optional or not. Prospective employers are legally prohibited from asking for photographs from job applicants, presumably to avoid problems discrimination.

      Imagine if this were weakened to "employers cannot demand but may request photographs from job applicants". It wouldn't be too long until anyone needing a job who isn't a member of Suppressed Minority X is sticking photographs on their résumés. Then the
  • While I kind of find the judge denying safe harbor a bit harsh, I do sort of appreciate the whole "required" versus optional form data. When I fill out forms for this and that on the web, I really get annoyed when every gorram field is required. I understand that the more complete the info, the better able to provide services, but honestly, forcing email or phone on peole is just likely to either a)turn users off from going any further or b)cause users to enter fake info.

    I'd much rather have missing fields
    • If you want to make a fake email without worrying about anyone ever receiving email because of it, RFC 2606 [rfc-editor.org] defines reserved domain names. Thinking about all the emails that have bounced after being sent to blowme@example.com just warms my heart.
      • Except for the forms that recognize those reserved domains and prevent you from entering addresses under them.

        I used to use fake addresses on sites that required them before allowing you to download their otherwise free software. Then I came across one that bothered to do some test (probably a DNS lookup) and it rejected garibaldi(a)babylon5.earthforce.mil (for example) as an invalid domain.

        Now when I use a fake address, it is at domains that not only allow you to do it, but also allow you to retrieve mail
    • I think it's a good ruling. The safe harbor protects groups who clearly have no hand in what information is collected or how it is used. Since this website appears to have a hand in that (at least by gathering potentially discriminatory information), they need to demonstrate that they're using it in a manner consistent with the law. That is best done by letting the case go to the next stage. Note that the court hasn't said that there's anything illegal going on, just that the site doesn't get a free pas
  • by iknownuttin (1099999) on Wednesday May 16, 2007 @05:54PM (#19152167)
    gender and sexual orientation.

    Whenever you see ads in the paper for folks looking for roommates, you always see several things:
    Female looking for female.

    Male looking for female or male roommate

    Gay man looking for roommate,

    etc...

    What's wrong with entering that information so you can be matched up with someone that you'll be compatible with?

    If you were unknowingly matched up with a gay man, and you're a devout Evangelical Christian, boy, there's going to be some rough patches! The same goes with women who would feel really uncomfortable with rooming with a guy.

    Geeze! Sometimes the law isn't realistic.

    • by Anonymous Coward on Wednesday May 16, 2007 @05:57PM (#19152211)
      If you were unknowingly matched up with a gay man, and you're a devout Evangelical Christian

      I smell sitcom!
    • Re: (Score:2, Insightful)

      by gad_zuki! (70830)
      I'm really getting tired of these "fair housing" groups' bullshit. I cant see whats wrong with "Female looking for female." Wasnt this the same group that sued Craigslist? Sounds like they're just interested in the money. As a tenant looking for a roommate I now have less rights because I cant specify male or female. Sexual orientation I can see as being iffy (such things should be talked about in person, not publically posted on forums for privacy reasons), but gender? You've got to be kidding me.
      • by lawpoop (604919) on Wednesday May 16, 2007 @06:23PM (#19152537) Homepage Journal
        It's okay to discriminate if you're living with the person, or your another renter. However, it's not okay for a landlord to decide they don't want to rent to gays, or unwed mothers, or young men who might tear the place up.

        What the court ruled is that it's not okay for a *landlord*, who is not living with the people, to discriminate on the basis of religion, race, creed, ethnicity, gender, etc. etc. So they are saying using an online roommate-finding website does not make it okay for a landlord to discriminate.
      • by Rix (54095)
        The fair housing groups are going after landlords not people looking for roommates. Craigslist was sued because it allowed ads from landlords specifying gender and religion.
        • by gad_zuki! (70830)
          Landlords? That's funny because in the three articles Ive read so far about this the judge uses various examples all of which are roommates asking for specific things, not landlords. Arguably the fair housing act applies to them, but roommates.com is being railroaded for roommate postings because of a law that protects tenants from landlords, not roommates. The ruling:

          1. Doesnt make sense because no landlords are involved in these transactions (at least from the examples given)

          2. This is the 9th circuit (
    • by djtack (545324) on Wednesday May 16, 2007 @06:09PM (#19152363)
      The fair housing act doesn't always apply, there are times when it is legal to discriminate based on gender etc. http://www.hud.gov/offices/fheo/FHLaws/yourrights. cfm [hud.gov] There is an exemption for owner occupied buildings (i.e. you want to rent out that extra bedroom in your house). Also if you are just looking for a roommate, you are not the landlord so it would similarly not apply, in fact I would think this would be protected under the 1st amendment as freedom of association.
      • Re: (Score:3, Insightful)

        by ScrewMaster (602015)
        Still, one of the major ills of our society is that more and more of our important freedoms are being removed and replaced with specific "exemptions" in law. Why should my needs have to fit into one of their silly "exemptions"? Who are they to restrict my life so? Seriously, this is beginning to get ridiculous.

        I'm of the opinion that every time our elected leaders decide to make a new law, they should be required to remove a minimum of four existing laws from the books. Period. This would force our fearl
    • by pluther (647209) <pluther@@@usa...net> on Wednesday May 16, 2007 @06:24PM (#19152561) Homepage
      Actually, the law is realistic in this case.

      If you are going to be living with the person, then the fair housing act does not apply to you.

      So, if you're actually looking for a roommate, then you can discriminate based on any criteria you want, including age, sexual preference, race, religion, hobbies, whether they'll sleep with you or not, etc.

      The judge did not rule that they cannot ask about such things. The ruling was simply about Safe Harbor status. That is, since the information was required from the person looking for housing, and a landlord used it to find a tenant, and was found to have discriminated based on information furnished to them by roommates.com, then roommates.com could be found to be complicit in the discrimination. They could avoid this by making such fields optional, or by only passing along protected information to owners who will be sharing living space.

      At least, that's my take from the article. I'm not a lawyer either, but I've been involved in a few court cases involving landlord/tenant law.

      • So since retirement communities are typically not lived in by the landlords (assuming a rental not purchase model) does this mean that they can no longer discriminate against younger people wanting to move there? Or is there an exemption for that too? If so then how is it OK for older people to decide to not want live with younger people but not vice versa?
    • At least according to the Volokh Conspiracy http://volokh.com/archives/archive_2007_05_13-2007 _05_19.shtml#1179259134 [volokh.com]:

      But both under California law and under federal law, it's illegal to tell prospective roomates about one's roommate preference, even when it's legal to actually discriminate based on that preference. It's illegal to put out an ad saying "Single white female seeks same to share apartment" (that's expressing a preference based on race and marital status), or "lesbian pagan seeks same" (preference based on sexual orientation and religion) -- and it's illegal to say that to people in person.

      This does seem pretty ridiculous, and clearly not very many people get in trouble for placing such ads, but there is some case law supporting it. In the roommates.com case, since they not only encouraged placing such statements, but seemingly also more-or-less required it, they were exposing themselves to liability. Plus, since they have much deeper pockets than your typical "SWF seeks

    • by Kelz (611260)
      I agree, and I am that gay man; I try to keep to gay roomates because they're cleaner (its true) and theres much less chance of getting an Evangelical Christian.

      So does this ruling mean I can't go looking for gay roomates on this site?
  • by superwiz (655733) on Wednesday May 16, 2007 @05:54PM (#19152171) Journal
    Since the site's purpose is clearly to find roommates and not tenants, you should have more latitude in what kind of questions you can ask. When you accept a roommate, you do much more than engage in landlord/tenant relationship. Finding a roommate is a process of creating a household. And anyone should be able to choose what kind of household they live in.
    • Re: (Score:3, Insightful)

      by ender81b (520454)
      Did you RTFA? The courts decision wasn't about IF asking these questions violated the fair housing act, it was if the safe harbor exemption could be applied. The court ruled it couldn't, since it asked some very specific questions with regards to sex (protected) and sexual orientation.
    • by lawpoop (604919)
      The difference arises when people are using the site in ways other than for "finding roommates" or "building a household", no matter what the site says about what you are supposed to do with it.

      So yeah, if you are an 18 year old girl looking for housing in a new city where you will be attending college, go a head and discriminate against creepy 36 year old guys. You're allowed to decide who you want to live with

      However, if you are a landlord, and you don't want to rent to first-time renters, gays, unma
      • by Solandri (704621)

        However, if you are a landlord, and you don't want to rent to first-time renters, gays, unmarried couples, blacks, or a group of 20 year old frat boys, you are no longer "finding roommates" or "creating a household", you are doing housing discrimination. That's wrong, disallowed or illegal, no matter if you are using interviews, walk-throughs, or online websites to do it. I think the only discrimination you can do is the ability of the tenant to pay. You do this with deposits or credit checks and co-signato

        • Put another way, say I sell screwdrivers. The vast majority of people use my screwdrivers to fix things by driving in screws. But if some people use my screwdrivers to break into cars, should I be insulated from the lawsuits of car owners who were the victims of theft?

          If you forced everyone who entered your store to give their name, address, and a list of the valuables they kept in their car, and you passed that info out to anyone who bought a screwdriver from you, then no you shouldn't be insulated from th
        • by lawpoop (604919)

          So what then does roommates.com have to do with any of this?

          My understanding is that the issue that court decided on was whether it was okay to help landlords used roommates.com to discriminate, and if because if was marketed as roommate-finding site, and not a occupant- or tenant-finding site, it qualified for a "safe harbor" provision. The court decided that it doesn't matter what the site was intended by anyone to be used for; practicing housing discrimination with this website is still wrong. You can't do it just because you're doing it on a website.

          Put another way, say I sell screwdrivers. The vast majority of people use my screwdrivers to fix things by driving in screws. But if some people use my screwdrivers to break into cars, should I be insulated from the lawsuits of car owners who were the victims of theft?

          Sellin

      • by kabloom (755503)
        From TFA:

        The Judge notes in a series of footnotes that past responses have included, "The female we are looking for hopefully wont [sic] mind having a little sexual incounter [sic] with my boyfriend and I [very sic]" and "I am looking for asian/spanish persons to share the apartment." Some of the qualifications that appear in this section might also violate the Fair Housing Act...

        Does this kind of request for a roommate violate the Fair Housing Act? I sure hope not -- that just doesn't make any sense.

  • by superbus1929 (1069292) on Wednesday May 16, 2007 @05:56PM (#19152195) Homepage
    So when some redneck moron finds out he's staying with a gay guy because roommates.com had to change things to continue to be protected by Section 230 and he therefore didn't know, and inevitably kicks the everliving shit out of him, does that mean Roommates.com is also responsible for the shit-kicking?
    • by pecosdave (536896)
      as far as I'm concerned the court system that said Roommates.com couldn't ask that info should be responsible.
  • by Just Some Guy (3352) <kirk+slashdot@strauser.com> on Wednesday May 16, 2007 @05:57PM (#19152207) Homepage Journal

    If I'm looking for a roommate, why shouldn't I be able to filter for gender and sexual orientation? For that matter, maybe I'm a racist jerk and don't want black or asian roommates. Isn't that my right, regardless of how silly it might seem to someone else?

    • by QuantumG (50515)
      One could say the same thing about looking for a tenant. I know guys who own investment property and simply refuse to rent to asian families because, according to him, they all dump cooking scraps and oils and shit down the drains which clogs and breaks them (and he then has to pay to fix it). Is this racist? Well, it's certainly an over-generalization.

      • Yes. This is racist, now he can put in the contract that anyone found dumping shit down the drain will be responsible for cleaning fees. That'll cover his ass, but he's in a world of trouble if he's looking to say "No Asians"
      • You don't have to live with a tenant.
      • by roman_mir (125474)
        He should take a security deposit and check for damage before giving it back, when the tenant exits. Just because someone ISN'T asian, doesn't mean they will not do the same thing (will not dump oil and cooking scraps into the sink.) I rent places out and personally I am only biggotted about two things: can you fucking pay on time and will you keep the place in order, so that the neighbours don't complain. Though I understand how someone can be totally racist, what else is new?
        • by QuantumG (50515)
          I hear that dumping massive amounts of food scraps and oil down the sinks every day for 6 months will just completely destroy the property. It will smell so much it is unrentable, and the only way to fix it is to completely replace all the waste water plumbing.. you can't possibly take a security deposit big enough for that.
          • by roman_mir (125474)
            That's nonsense. There ain't nothing that a good sewer snake wouldn't be able to take care of. And/or lots of Drano.
          • by vidarh (309115)
            Nonsense. I used to live in an apartment building where the family below us kept dumping food and oil down the drain. Every day. They did have to get plumbers out every few months, but it never took much work to clear things out, and over the years we lived there smell was never an issue except for right at the time when it clogged up if they didn't get a plumber out quick enough, but once the system was cleared it was fine.

      • by mikael (484)
        they all dump cooking scraps and oils and shit down the drains which clogs and breaks them (and he then has to pay to fix it). Is this racist? Well, it's certainly an over-generalization.

        Maybe it would be more cost-effective to install one of the waste disposal units in the kitchen sink. Or maybe put a laminated sign above the sink?
        • by QuantumG (50515)
          Well, yes, obviously. Point is, racism is not just about "I hate those fuckers so I don't want them in my property".. people can have reasonable expectations about other races which they simply don't want to deal with. It's still racism of course.
  • by spaceyhackerlady (462530) on Wednesday May 16, 2007 @06:01PM (#19152253)

    The B.C. Residential Tenancy Act [gov.bc.ca] allows for three sorts of discrimination: age, when it's a property specifically for older folks. Disability, when it's a property specifically for disabled folks. And just about anything else (particularly gender and sexual orientation) when there are shared kitchens and bathrooms involved.

    Little else matters. If you can pay the rent (and come by the money lawfully), they can't turn you down.

    ...laura

    • Now, THAT's the way it should be.

      I swear, I sooo should move to Canada.
    • by roman_mir (125474)
      Little else matters. If you can pay the rent (and come by the money lawfully), they can't turn you down. - only this is complete B.S. If I don't like you I don't have to let you in at all. All I have to do is say that someone else has gotten it first.
      • True. "We don't like you" isn't part of the legislation. But if what they really meant was "We don't rent to queers", or something similar, you are protected.

        ...laura

  • Critically, this overrides what had been the common interpretation of Carafano v. Metrosplash.com [wikipedia.org] which was that form fill-in websites had the same immunity as free-text websites (and ISPs). This roommates.com decision says "no" -- matchmaker.com had immunity only because a) the offending information (Carafano's home address etc.) was posted in free-text fields of the form and b) posting such information violated matchmaker.com's terms of service.

    As regards violating the Fair Housing Act, there is a shared living exception [hud.gov]. It seems to me that if roommates.com added a "shared living" checkbox to its form, it could AJAX-open the additional fields regarding gender and sexuality, and thus avoid falling afoul of the FHA. Roommates.com would still not be covered by the Section 230 exception of the Communications Decency Act, but it wouldn't need it.

    • Re: (Score:3, Insightful)

      by Solandri (704621)
      I think the important factor in this case was that the gender/orientation information was required in order to proceed with registration on the site. TFA says a free-form response stating the same info would have been acceptable.

      This then presents a simple legal solution for roommates.com which from a practical point of view is no different from the current site: Just make the options male, female, and unspecified. People can continue to search for male/female roommates (or unspecified if you don't car

  • What the hell (Score:5, Insightful)

    by Lithdren (605362) on Wednesday May 16, 2007 @06:24PM (#19152559)
    How on earth is it Roommates.com's fault is LANDLORDS are abusing the system to discriminate? Be like looking someon up on Myspace, and denying them a job because of some pictures put up. Is it Myspace.com's fault?

    I hope they are atleast suing the landlords that were abusing this info. Thats the problem with information on the net, its accessible to everyone, weather they should have it or not. I understand nailing landlords to the cross for abusing this info, but I totaly fail to understand how this is the websites fault for supplying the information. Its even submitted by the people themselves...its not like it wasn't wanted to be known..
  • This seems like perfectly decent information to ask. Personally, I would like to know the gender and sexual orientation of my roommate before I go into an apartment deal with them. I don't think it is the site's fault that people are abusing the information. Yes, they required the information. However, if you don't want to give it, then don't sign up!

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