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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 Apple Acolyte (517892) on Wednesday May 16, 2007 @04:47PM (#19152041)
    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 DigitalSorceress (156609) on Wednesday May 16, 2007 @04:54PM (#19152163)
    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 than false info... it's EASY to parse for missing fields, but false info can really pollute or skew things. I know that on "stop bugging me" registrations for some software, I'll just enter F***@you.com or some other random made up address that expresses my displeasure at being forced to provide such information. To whomever has the email address "F***@you.com" I apologize for the extra spam I've caused you to receive from the likes of Real Networks, Apple, and others. :)
  • by iknownuttin (1099999) on Wednesday May 16, 2007 @04:54PM (#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 superwiz (655733) on Wednesday May 16, 2007 @04:54PM (#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.
  • by superbus1929 (1069292) on Wednesday May 16, 2007 @04:56PM (#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 Just Some Guy (3352) <kirk+slashdot@strauser.com> on Wednesday May 16, 2007 @04:57PM (#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 gad_zuki! (70830) on Wednesday May 16, 2007 @05:01PM (#19152251)
    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 spaceyhackerlady (462530) on Wednesday May 16, 2007 @05:01PM (#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

  • by DigitalSorceress (156609) on Wednesday May 16, 2007 @05:02PM (#19152269)
    If I'm a landlord, then I should not be able to discriminate based on race, gender, religion, sexual orientation, etc, but DUDE... this is for ROOMMATES. Although discrimination is wrong in principal, individuals sharing a house or apartment with one another really need to make sure they're compatible. I'm a lesbian... so I might be willing to share my apartment with a gay man, but certainly not a straight one. Likewise, a straight woman really might be uncomfortable sharing an apartment with me. What's wrong with helping people to filter out their choices?
  • Re:Roommates.com (Score:3, Insightful)

    by Rycross (836649) on Wednesday May 16, 2007 @05:05PM (#19152303)

    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 djtack (545324) on Wednesday May 16, 2007 @05:09PM (#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.
  • by Rycross (836649) on Wednesday May 16, 2007 @05:10PM (#19152371)
    I would agree with you if this was about landlords, but this is a site for finding roommates. You should be able to choose the type of people you live with. If a woman doesn't want to live with a man because that makes her uncomfortable, that should be her right. Same with a homosexual and a fundamentalist Christian, a man with very fundamentalist parents and a woman, a man and a homosexual man, etc. A person should not be forced to room with another person that makes them uncomfortable, even if those reasons are bigoted. The site gives its users options to help them find roommates that meet this requirement.
  • by ender81b (520454) <billdNO@SPAMinebraska.com> on Wednesday May 16, 2007 @05:18PM (#19152469) Homepage Journal
    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.
  • What the hell (Score:5, Insightful)

    by Lithdren (605362) on Wednesday May 16, 2007 @05:24PM (#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..
  • by openldev (925511) on Wednesday May 16, 2007 @05:27PM (#19152603) Homepage
    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!
  • by jmorris42 (1458) * <jmorris.beau@org> on Wednesday May 16, 2007 @05:31PM (#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.
  • Re:Very bad ruling (Score:5, Insightful)

    by XanC (644172) on Wednesday May 16, 2007 @05:33PM (#19152711)

    I'd just like to point out how the word "discrimination" has been hijacked. Discrimination is a good, useful, and necessary thing. Whenever you make a choice about something being better than something else, that's discrimination. You want and need to discriminate.

    For particular reasons, discrimination based on certain factors (race, color, religion, sex, and national origin) for certain purposes (housing, voting, employment, and public services) has been made illegal. Any other kind is perfectly legal.

    Here, you've assumed that any kind of discrimination is bad. You're talking about illegal discrimination.

  • by ScrewMaster (602015) on Wednesday May 16, 2007 @05:36PM (#19152741)
    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 fearless leaders to start having to look at what they've already done to us, in order to decide if what they want to do now is worth the effort.

    Now, I admit that there are enough useless laws already on those books that this would take a while to have any noticeable effect, but at least we'd start clearing out some of the crap.
  • by Solandri (704621) on Wednesday May 16, 2007 @05:46PM (#19152889)
    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 care), but because roommates.com is no longer requiring this information they would still fall under the safe harbor provisions. Of course in practical use, 99% of the people using the service are going to filter out "unspecified" entries so nothing is actually going to change. But our world is full of silly little things like mattress tags which have become required by law.

  • by steve_ellis (586756) on Wednesday May 16, 2007 @05:50PM (#19152941) Homepage
    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 same", they were much more likely to be taken to court.

  • by Gospodin (547743) on Wednesday May 16, 2007 @05:51PM (#19152949)

    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 reason I please.

    You do not have a fundamental human right to allocate my resources for me.

  • by DragonWriter (970822) on Wednesday May 16, 2007 @06:17PM (#19153249)

    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 rejected by the Supreme Court, and all lower courts in the US are bound by those decisions.

    The CDA fails on 1st and 10th Amendment grounds and the FHA on 10th.


    Leaving aside the question of whether the Supreme Court ought to rule that, that is clearly, in both cases, contrary the precedent that is binding on the court that made this ruling. That being said, I think you are way off base in both cases, whether you go buy precedent or by any fair reading of what the Constitution likely "intends" ignoring "errors" inserted by the court (e.g., in the case of the FHA, on the one hand it is well within the clearly established, by precedent, parameters of the Commerce Clause, and on the other is within the intended vast sweep of the 14th Amendment grant of power to Congress that the Supreme Court narrowed to virtual nothingness—it being the only grant of power to Congress that the Supreme Court has essentially held gives Congress no more power or discretion to enforce the provision that it claims to give Congress the power to enforce than simply to do whatever the Supreme Court would command anyhow without Congressional action.)

    While other provisions of the CDA may violate the Constitution, the safe harbor provision, when applied to insulate against liability under other laws, is clearly within the Commerce power.

    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.


    No, "tolerance" just means "permitting people to do things whether or not you approve of them". You apparently think that the proper boundaries of what people should be tolerant of is everything not involving force or fraud as you interpret those, but that is not a Constitutional command or universally accepted moral precept, just your personal opinion.
  • by intchanter (1035396) on Wednesday May 16, 2007 @06:34PM (#19153491)
    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, an instant unclogging of the court system, no more debate about all these political non-issues, an increase in all forms of respect for fellow citizens, and a reduction of the number and type of laws to the point that an average 10-year-old could recite them with full understanding of what they mean and how they are applied.

    The only alternative brings the exact opposite, sooner or later.
  • by Gospodin (547743) on Wednesday May 16, 2007 @06:46PM (#19153645)

    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.

  • by DragonWriter (970822) on Wednesday May 16, 2007 @06:50PM (#19153685)

    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).

  • by QuantumG (50515) <qg@biodome.org> on Wednesday May 16, 2007 @07:12PM (#19153987) Homepage Journal
    The result of a segregated society has been universally shown to be disfavourable.

    Sucks that we have to limit personal liberty to get people to be civil to each other, but there ya go.
  • Re:Roommates.com (Score:5, Insightful)

    by Grishnakh (216268) on Wednesday May 16, 2007 @08:11PM (#19154727)
    I am an attorney who has defended landlords and apartment managers in fair housing cases since 1985. I believe that housing discrimination is wrong and should be illegal.

    There's a bit of a difference between a corporate-owned, professionally-managed apartment complex selecting applicants for leases, and a single person who needs a roommate in her apartment.

    Do you think a 100lbs. single woman shouldn't be allowed to discriminate on the basis of gender when she's selecting roommates? If so, then you are a loon.

    As far as I'm concerned, people should be able to pick whomever they want as their roommate, using any criteria they want.
  • by gmack (197796) <gmackNO@SPAMinnerfire.net> on Wednesday May 16, 2007 @09:46PM (#19155763) Homepage Journal
    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 sure that certain people don't get relegated to slums or prevented from making a living just because we don't like them. Those laws were put in place because people did exactly that.

    Or should we go back to black districts and white bathrooms? "Hey it's my bus and I think people I don't like should have to sit in the back."

  • by ToastyKen (10169) on Thursday May 17, 2007 @04:01AM (#19158159) Homepage Journal
    <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, there might be a difference between public-run buses and private housing, but I'm pretty sure a private bus company couldn't get away with telling black people to sit at the back of their buses, either.)

    Furthermore, housing discrimination affects not just the denied tenant, but, on a larger scale, the housing market and opportunities for many other tenants.

    So I would actually mostly agree with your statement there, but instead of "force or fraud", I'd say people can do what I disapprove of as long as it doesn't AFFECT others. Yes, that's rather broad, but there are many cases where I think people should be able to do what I disapprove of even if they do affect me. They simply no longer get a blanket pardon once they do.
  • by Castar (67188) on Thursday May 17, 2007 @01:56PM (#19166783)
    Exactly. The way discrimination against blacks went away after the Civil War. The free market took care of that one, all right.

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