Appeals Court Denies Safe Harbor for Roommates.com

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."'"

Re:Roommates.com

[john83]

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:Blast from the past?

[Anonymous Coward]

Uh. Parts of the CDA were struck down. Not all of it was, and the safe-harbor provisions certainly weren't.

Re:I don't know what the problem is...

[lawpoop]

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.

Re:I don't know what the problem is...

[pluther]

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.

Re:Roommates.com

[Anonymous Coward]

They aren't. If you try to leave it blank, you get bounced with a message that you have to go back and fill it in.

Re:What the hell

[Anonymous Coward]

How is it Roommates' fault? Because the FHA prohibits publication of discriminatory information, and not just discrimination itself.

Re:Blast from the past?

[DragonWriter]

Wait. The COMMUNICATIONS DECENCY ACT? The act that was supposed to keep the kiddies away from Intarweb pr0n?

Wasn't that struck down, like, in the 1990s?

Some (but not all, IIRC) of the prohibitory provisions were either struck down or limited in applicability by the Supreme Court.

The safe harbor provisions, which provide a liability shield which extends to liability under other laws (pretty much all other laws that turn on the status of "publisher or speaker"), not just the prohibitory provisions of the CDA, were not.

Re:Not at all an appropriate decision

[vidarh]

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:Look, I just wanted a normal male roommate

[spun]

BZZT. Sorry, thanks for playing. Castro is only home to gay men with close cropped hair wearing chinos and wife-beaters. You will find lesbians in nearby Noe Valley, but generally only lipstick lesbians and mommy dykes. If you want vegan socialist womyn, you should look in the Mission, the TL, or across the bay in Berzerkely.

Re:Roommates.com

[Slashdot Parent]

That is not the case at all. The Federal Fair Housing Act does not apply to roommates. It only applies to landlords with 4 or more units.

And anyhow, it doesn't protect gays. Gays are not a protected class. I can put up a banner on one of my apartment buildings that says, "Not faggots allowed!" and while it would probably violate about a half dozen sign ordinances, it would be perfectly legal under fair housing laws.

On the other hand, if that banner said, "No blacks allowed!" I'd be in a world of hurt.

Re:Roommates.com

[anothy]

As far as I'm concerned, people should be able to pick whomever they want as their roommate, using any criteria they want.

and the Fair Housing Act agrees with you. it contains several explicit exemptions, most relevantly exempting an owner renting out rooms in a house in which he lives (providing it's designed to house four or fewer independent families). the original suit did not claim that any individual user of roommates.com violated the FHA, but that the site itself did by providing explicit choices in violation of the code. the court (in the majority opinion) upheld CDA immunity for the free-form comment boxes, where the site itself had no role in forming the content (which i think is an important, and correct, distinction).