Websites Can Discriminate Against You Even If You Don't Use Them, California Supreme Court Rules (gizmodo.com) 119
Nearly four years ago, a lone bankruptcy lawyer sued Square, the payment processor run by Twitter CEO Jack Dorsey, challenging the app's terms of use -- despite never signing up. As of yesterday, the case will proceed, thanks to an opinion issued by the California Supreme Court that could have wide-reaching implications for online businesses. Gizmodo reports: The first thing you need to know is that, for whatever reason, Square's Prohibited Goods and Services policies include "bankruptcy attorneys or collection agencies," which you'll recall is plaintiff Robert White's line of work. California, where this case was tried and where a plurality of online services are headquartered, is also home to a state law -- the Unruh Civil Rights Act -- which provides broad protections against discrimination of many kinds, including occupation. But the question remained as to whether White needed to have entered into an agreement with Square (by agreeing to the terms of service) in order to have experienced said discrimination barring his "full and equal access" to the service. For the time being at least: no.
"In general, a person suffers discrimination under the Act when the person presents himself or herself to a business with an intent to use its services but encounters an exclusionary policy or practice that prevents him or her from using those services," Justice Goodwin Liu wrote in court's unanimous opinion. "We conclude that this rule applies to online businesses and that visiting a website with intent to use its services is, for purposes of standing, equivalent to presenting oneself for services at a brick-and-mortar store." The Supreme Court noted that the merits of White's case -- beyond his having standing -- were outside its purview, and that "mere awareness of a business's discriminatory policy or practice is not enough for standing under the Act," but that "entering into an agreement with the business is not required."
"In general, a person suffers discrimination under the Act when the person presents himself or herself to a business with an intent to use its services but encounters an exclusionary policy or practice that prevents him or her from using those services," Justice Goodwin Liu wrote in court's unanimous opinion. "We conclude that this rule applies to online businesses and that visiting a website with intent to use its services is, for purposes of standing, equivalent to presenting oneself for services at a brick-and-mortar store." The Supreme Court noted that the merits of White's case -- beyond his having standing -- were outside its purview, and that "mere awareness of a business's discriminatory policy or practice is not enough for standing under the Act," but that "entering into an agreement with the business is not required."
If a tree falls in the forest... (Score:2)
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Yes. We settled that question shortly after inventing sound recording technology. Kthxbye.
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By recording it, and playing it back, to check, then someone hears it; so the terms of the question haven't been met.
The question being asked is really nothing to do with trees falling in empty forests; instead it is asking "what is the nature of sound?". Is it merely vibrating air? Is a recorder recording _sound_ or just vibrations? Or is sound only made manifest with an observer to *experience* it? Perhaps sound exists solely within the mind, after our ears and brains have translated the vibrations to t
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Yes, the terms of the question, "does it make a sound," have been met.
Yes.
No.
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"Yes, the terms of the question, "does it make a sound," have been met."
The criteria "if no one hears it" has not been met. You recorded it, played it back, and then someone heard it.
"Yes Both. It's not a dichotomy"
According to you? Pretty much all reference to sound is connected to the experience of hearing it. Vibrations in air are the objective cause of what we experience as sound. But it's easy to imagine an insect or something that could detect vibrations in air without experiencing them as anything an
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It depends on how you define "sound".
If you define it as a the electro-chemical process that occurs when your ear senses vibrations in the air, then no, there's no "sound" if there's no observer.
But if you define it the way the rest of the world does, yes, the sound is there whether or not anyone was there to hear it. Unless you think that basic physics stops without an observer present, something we know is not true.
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-- It depends on how you define "sound" --
Right. The question was never about whether physics stops without an observer present... if physics "stops" without an observer, how does the tree even fall? How is there a tree at all to consider?
The question is asking you to consider what "sound" really is and whether it exists separately from its cause. Does what you perceive as "sound" exist without you to perceive it; is vibration in air really the same thing as "sound". In the discipline of physics perhaps th
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"it depends how you define sound".
The way I define it means that if a tree falls in the forest but no one was there to hear it, it still made a sound.
On another note- what about "turns"? Are they immutably individualized per person or are they a generic, ephemeral, transferable thing?
For example, if 4 of us are playing Risk or Monopoly and I decide not to take my turn, is the next person who plays taking "my" turn or is he taking his? After all, my turn wasn't taken, and I was next, so the next turn that's taken must be mine, right? Or he t
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No, the point of the question is that it is poorly posed. Your own writing repeatedly distinguishes between sound and the perception of sound, then raises examples in which someone might perceive sound but nobody else will perceive sound because there is no sound.
The point of all these replies to you has been to get you to th
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I did not specify playing it back. That's your own creation. I watched the VU meter because I'm deaf you insensitive clod.
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Then all you know is that there was vibration, nobody ever disputed that. But as yet, nobody has experienced any sound.
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My service dog, you insensitive clod.
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According to lots of people [thefreedictionary.com].
Collins English Dictionary - Complete and Unabridged, 12th Edition 2014
===
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Resorting to the dictionary? Really? You had to know that was ridiculous as you were doing it right? Vibrations in the air certainly are the usual cause cause of sound, and within the common vernacular we may refer to what we experience as sound by its cause. And that a physicist might use the word "sound" in specific well defined way within the discipline of physics is entirely irrelevant to the philisophical question.
That is NOT what the 'tree falls in the woods' question is asking you to think about. It
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I'm sorry, you have a problem with objective evidence that you're wrong? Of course you do.
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"I'm sorry, you have a problem with objective evidence that you're wrong? Of course you do."
A dictionary merely describes how people use a *word*. The fact that we don't have separate words to describe the physical cause of sound and the perception of sound and just use sound doesn't mean there aren't separate concepts to consider, just that they are usually so closely related that distinguishing them isn't meaningful, useful, or necessary, unless you are specifically asked to think about them separately.
"T
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Yes, and you made an assertion concerning how people use the *word* sound. A dictionary is relevant to how people use the word. On the other hand, if there's going to be a privileging of personal definitions, mine wins. You don't get to dictate mine, much less the commonly held ones.
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"Matching the number 6 up precisely with the color blue does not make the number 6 blue. Perception of a thing is not the thing."
Good example.
The color blue doesn't exist outside of perception. We might assign a certain range of frequencies as blue. But there is nothing "blue" about them without an observer experiencing is blue.
"Sensation" is not sound."
"I can make sweeping statements too, yet mine are backed up by pesky things like professional definitions."
Even your dictionary would disagree with you here
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You challenged the fact that the meaning of "sound" was not a dichotomy. You made the claim that the meaning of sound "pretty much' required hearing. Need I remind you?
So yes, a dictionary, and a rebuttal to your unsupported definition of the term sound. Deal with it.
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False dichotomy. Again.
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By recording it, and playing it back, to check, then someone hears it; so the terms of the question haven't been met.
Ceci n'est pas the sound of a tree falling, it's a recording of the sound of a tree falling.
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Now that's a whole OTHER philosophical question isn't it. :)
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Yet your declaration concedes that the sound of a tree falling was made. Q.E.D.
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It still falls. A deaf person could watch it, for example.
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If a tree falls in the forest...
and no-one hears it...
Can you sue?
Very misleading headline (Score:4, Informative)
He wanted to sign up and use the web site, but their Terms of Service told him he couldn't. That's hardly "even if you don't use it."
Re:Very misleading headline (Score:5, Informative)
The full article also points out that many web sites have mandatory arbitration clauses in their terms of service, so he would have been barred from suing them if he had agreed. It would completely undermine the purpose of the law if potential customers first had to agree to terms that prevented them from suing order to get standing to sue.
Re:Very misleading headline (Score:5, Interesting)
What I find odd is Square wasn't discriminating against White as a person. He's free to sign up and use the service. He just can't sell bankruptcy services. If he wants to run a taco cart on the weekend, that would be just fine. So the discrimination is against the product, not the individual.
I hope the jury decides Square is free to not associate itself with products and services it finds offensive or problematic for some reason. If not, I'm going to immediately set up an account for my assassination-for-hire side gig.
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"I hope the jury decides Square is free to not associate itself with products and services it finds offensive or problematic for some reason. If not, I'm going to immediately set up an account for my assassination-for-hire side gig."
SCOTUS already decided something similar. [nytimes.com]
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It is illegal to advertise or to help advertise for a criminal service.
Bankruptcy attorney is not a criminal service. At least not yet.
As to your main point, free to refuse to associate with offensive products, the court rules that it outlaws arbitrary and intentional discrimination.
If you can show that the discrimination is not arbitrary then you can do it. For example, you could refuse to give a twitter account for anyone that attempts to outlaw twitter.
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the court rules that it outlaws arbitrary and intentional discrimination.
If you can show that the discrimination is not arbitrary then you can do it. For example, you could refuse to give a twitter account for anyone that attempts to outlaw twitter.
IANAL but it seems discrimination laws ought to be targeted (at most) at people being discriminated at because of something they intrinsically are (that is, where they don't have any choice in the matter). If I don't want to sell to redheads or albinios or people born in Spotsylvania, perhaps there's a case. Ethnic groups, gender, and sexual orientation fall in this category.
Practicing bankruptcy law is definitely a choice White made. I have very little problem with someone making a choice based on that cho
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>Bankruptcy attorney is not a criminal service. At least not yet.
But the act of using a credit card with the full intent of not paying usually *is* as crime . . .
hawk, esq
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This isn't about "offensiveness". This is about the fact that people who are looking to hire a bankruptcy attorney are often doing so with the last of their credit, knowing it will be written down. It doesn't make sense for a financial processor to encourage such activity. Unfortunately for them, what's convenient for them is less important than what's fair to the population, at least in some parts.
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This isn't about "offensiveness". This is about the fact that people who are looking to hire a bankruptcy attorney are often doing so with the last of their credit. It doesn't make sense for a financial processor to encourage such activity.
I see your point. It strikes me as somewhat conspiratorial. I don't think Square is avoiding bankruptcy attorneys because they don't want to get stiffed on their fees. But what do I know? There are a lot of surprising things on their list, such as "occult items". Selling a Ouija board is a problem? Did someone at Square get sold a voodoo doll but found it didn't work? And "adult entertainment oriented products". I can't sell my organic, small batch, artisinal, hand crafted dildos on Etcy and use Square to p
Bankruptcy attorney: even more than that (Score:3)
I am a bankruptcy attorney, but this is not legal advice. If you want legal advice, pay my retainer!
There are so many things wrong with this in so many ways . . .
The very *act* of a bankruptcy attorney taking a bankruptcy retainer by credit card will almost always be an ethical violation.
It will also generally be a fraud by the cardholder (unless the retainer is for someone else)--and another ethical violation by the attorney for facilitating this.
It's actually been a while since I've been asked if someone
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This attorney's biggest problem isn't that he can't take square, but that this news coverage is likely to bring his behavior to the attention of the bar . . .
hawk, esq.
Heh. The "meth dealer calling the police to report someone stealing half his stash" scenario.
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You'd be *surprised* at how many seemingly intelligent attorneys have filed bankruptcies for "legal" marijuana operations, whether dispensaries, owners with inventory, and even at least one Chapter 12 (agricultural) for a grower.
Gee, wander into federal court and swear under oath hat your business engages in ongoing federal felonies. . . what could go wrong?
hawk, esq.
p.s. Yes, the cases ended badly
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I hope the jury decides Square is free to not associate itself with products and services it finds offensive or problematic for some reason.
I do too.
The owners of Square have the right to limit their services based on certain criteria that are independent of personal factors (race, ethnicity, gender, etc).
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What I find odd is Square wasn't discriminating against White as a person. He's free to sign up and use the service. He just can't sell bankruptcy services.
This is the argument Square made (that their policy "applies not to people, but to transactions"), but it's worth noting that their policy in fact does not say "bankruptcy services," it literally says "bankruptcy attorneys." (see the link in the summary)
Most of the rest of the list is about actual "goods and services." The wording for that one item would be easy to fix to be like the rest if they wanted to.
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I'm struggling to see the discrimination here though. It seems reasonable to me to decline all lawyers as customers as they're far more likely to sue you than the average person. That's not discrimination, that's business risk management.
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"California is home to a state law—the Unruh Civil Rights Act—which provides broad protections against discrimination of many kinds, including occupation."
It's a state thing.
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What I find odd is Square wasn't discriminating against White as a person.
This is a very flimsy argument, as it would be trivially to abuse by defining some personal characteristic (e.g. occupation) to use against you.
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"Does a plaintiff have standing to bring a claim under the Unruh Civil Rights Act when the plaintiff visits a business’s website with the intent of using its services, encounters terms and conditions that allegedly deny the plaintiff full and equal access to its services"
The key is "encounters terms and conditions that allegedly deny the plaintiff full and equal access to its services"
He's being denied access from using the service based
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No, you can't use their service as a bankruptcy attorney. Not selling bankruptcy services.
I see your point: the straightforward reading of the policy includes several descriptions which could be interpreted as people, not products or services. Telemarketers, up-sell merchants, service station merchants, and "bankruptcy attorneys...engaged in the collection of debt" are all excluded. In this context, does "merchant" mean the business or the people? I don't know and that's what the lawyers will argue about.
Since court decisions are all about details, White may have a case. On the other hand, the t
cough *CAN'T* cough (Score:2)
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Or "Websites Do Discriminate Against You Even If You Don't Use Them, California Supreme Court Rules"
I initially understood "Websites Can Discriminate Against You Even If You Don't Use Them, California Supreme Court Rules" to be they're allowed to discriminate against you.
A poorly written title.
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i guess most strictly it should be 'websites can be tried for discriminating against you even if you don't use them',
altho "use" is a slippery word as well since it's a close cousin to "visit" or "consider using", and the distinction appears to be important.
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Wrong. The point is that discrimination can be found to have occurred.
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i wrongly interpreted "can" as "may" or "are allowed to".
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"Can" could be used to mean they have authorization or permission to do something. It can also be used to mean they have the capability to do something. In this case, they're saying websites are capable of discriminating.
Is it time to bring back "may" into the vernacular? "Can" used to mean "capable of" while "may" involved having permission. I can have a cookie (I have a mouth and there are cookies nearby), but I may not (I have not asked the owner of the cookie for permission yet). Even after 6 years in the US my wife sometimes struggles with this distinction (Portuguese uses the word poder in both cases).
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Re: cough *CAN'T* cough (Score:2)
Websites _may not_ discriminate.... As in, they are not allowed.
Off course it's California (Score:2)
Freedom of speech and freedom of association means I don't have to associate myself with anyone unless I'm the government. Don't like it, take your business elsewhere and let the market figure it out.
If allowed, this would put the payment processor industry under a lot of pressure. Adult websites and gambling sites even if legal are often relegated to foreign or very expensive processors because Visa/MC won't cover their business purely for Puritan reasons.
Likewise banks, mortgagors and pretty much any busi
Re:Off course it's California (Score:5, Interesting)
Title II of the Civil Rights Act of 1964 is going to come as a complete surprise you, isn't it?
Title III of the Americans with Disabilities Act of 1990 too, I bet.
The Federal and State governments [findlaw.com] are treading on your freedom. Go tilt at that windmill, young Quixote.
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This isn't about discriminating against people based on immutable features, this is discriminating against people for their actions.
I'm against discriminating because of what they are. However, people should be free to discriminate based on what they do.
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This isn't about discriminating against people based on immutable features, this is discriminating against people for their actions.
Civil Rights Act includes religion, that is hardly immutable. Totally unchecked I also think you'd have a problem with proxies being used to discriminate, not because you actually find the behavior offensive but to disproportionally exclude a group of people.
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Civil Rights Act includes religion, that is hardly immutable.
That's an interesting corner case. I think the consensus is you really can't and shouldn't ask a devout believer change their belief system. And, as with skin color and ethnic background, there's a strong history of using religious discrimination in hateful and socially harmful ways. Thus, I think that's a somewhat pragmatic category.
Totally unchecked I also think you'd have a problem with proxies being used to discriminate, not because you actually find the behavior offensive but to disproportionally exclude a group of people.
Oh, like zoning, minimum wages, and the War on Drugs? But I digress...
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Kickass. You obviously approve of social media's alleged discrimination against conservative politics, because that is not immutable and is all about what people do.
Looking forward to your reply of intense agreement.
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Interestingly, the left/right balance politically seems to have a sizable genetic component (about 40%), which is a sizable bias to overcome. A balanced upbringing would leave a predilection to the natural leaning. And without a genetic rewrite, I'd classify that as immutable.
https://www.scientificamerican... [scientificamerican.com]
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I wouldn't, and since my classification is actually correct [slashdot.org], I'd classify you as wrong.
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Would anyone lift an eyebrow if conservative media discriminated against liberal politics? (I am not a USA:nian so I don't know if it is a correct dichotomy, but you get the idea)
What is then the difference in a private medium being called "social"? Aren't they allowed to have their own agenda?
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Essentially not. Brietbart routinely bans commenters that espouse liberal viewpoints yet while you hear complaints, there's no mass movement to stop it.
According to Fox News [foxnews.com] and Der Trumpinfuhrer [qz.com], the difference is that it hurts conservative feelings and they are not.
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You obviously approve of social media's alleged discrimination against conservative politics
I dispute that social media is discriminating against conservative politics. I'm fairly conservative but this rising trend of xenophobia, racism and fascism has nothing to do with conservatism. There is a distinct difference between conservatives and Republicans.
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The fun thing about brand recognition for terms such as "conservative" is that the label means what a plurality deems to to mean, not what individuals deem it to mean.
That distinction has been destroyed. Conservatives have consistently avoided fight
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And those are poorly written laws allowing for all sorts of more modern "rights violations" that are purely political in motivation (eg. forcing horses on passenger planes, forcing people to bake cakes against their will etc).
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Re:Off course it's California (Score:4, Insightful)
Wrong. The 14th Amendment states that "[n]o state shall make or enforce any law which shall ... deny to any person within its jurisdiction the equal protection of the laws." Beyond the fact that the able-bodied benefit equally from accommodations made to the disabled -- they have the same or superior access to facilities -- you run straight into issues analogous to those in affirmative action [fas.org], the government has a compelling interest in remedying historic discrimination against the disabled.
But good luck tilting at that windmill, young Panza.
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Denying the protection of the law is not the same as having a private citizen forced to make accommodations for a specific class of people, however noble the end result may be. If I have a business and make it impossible for all but the more adept of mountain climbers to get there, you shouldn't be able to force me to install a lift because you can't climb well, but you also won't get to my business, so good luck to me for keeping it running.
You could reverse the 14th amendment and say that I, as a citizen,
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Shouldn't I? Because I can [access-board.gov]. Because there are compelling interests in requiring you to serve both the able-bodied and the disabled when you decide that you're going to operate a business serving the general public.
I"m not having a first principles argument with you. Cite legal decisions that hold that the 1st and/or 1
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In my opinion from reading your comments, you do not seem to understand the 1st Amendment or the 14th or perhaps any of the others.
Every strawman you have built and analogue you have devised to push some strange contrarian position during this discussion has been patently false or disingenuous nonsense.
It is people like you, who spew lies and intentional misinterpretations, that are a enormous danger to any democracy.
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This. Precedent set by court ruling should be set in neither California nor Texas; in these United States, the most extreme positions are welcome, but the courts should err on the side of moderation, and ideally be located in the flyover States.
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The majority is an ephemeral quantity... since there isn't one, much like the coast:
also known as the coastline or seashore, is the area where land meets the sea or ocean, or a line that forms the boundary between the land and the ocean or a lake. A precise line that can be called a coastline cannot be determined due to the coastline paradox.
On the coasts, of which there are at least four, we are liberal east and west, but conservative along the south, and somewhat swing state along the north.
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The flyover states cannot set policy, hence the name flyover even though they make up the largest number of communities.
What implications for FOSS licenses? (Score:2)
I'm curious if this has any implication for open source licenses. I recall that last year there was a mercifully short trend of some people making specific exclusions to their project's open source licenses with regard to organizations or trades they didn't approve of. Would this fall under the same sort of ruling as websites in being potentially illegal to discriminate based on profession, at least under California State law?
California Law (Score:2)
I knew a lawyer who, when at law school, cited a California court decision as jurisprudence in one of his mock trials. The professor said he did good research and the cited case was applicable, but, in general, never to cite legal decisions from California in any other court. Other states can sometimes be applicable, but never California. It's just a bit of a legal outlier.
That being said, it would have an effect on cases brought in California, which, for online services, would be quite a few.
Re: California Law (Score:2)
For better or worse as you may take it, Californians have more legal rights than most of us.
Rights (Score:2)
It's one thing to have more rights, as you say, however you take it. The issue is the California court system is, in computer terms, stochastic. There are cases where the judges do not follow jurisprudence, or cite case law that should not apply. There are cases where the court reverses itself, then reverses itself again later on. It's almost as if they interpret the law on a case by case basis. The effect is that it is difficult to follow the law when you don't know how it's going to be interpreted in any
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or less freedom, the way you look at it matters, any right enshrined in law comes with a duty to the government
Everywhere a sign (Score:2)
Payments with no money? (Score:2)
Both of those professions seem to be situations where you'd be accepting payment from someone with no money.
It also seems like you'd be using a credit card with someone who has really bad credit.
You know how you're not allowed to use a credit card to secure your downpayment on a loan ( or whatever that rule is.) It seems this is really close to it. Maybe Square wasn't making a political or ethical statement but really they were making a financial decision. There's a small chance they were just expl
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Seriously? (Score:4, Insightful)
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Welcome to post-gay-wedding-cake America.
Interesting (Score:2)
Would "kinda wacko talk show host" be an occupation?
Perhaps they'd best be careful here. Pretty soon you might not be able to discriminate against anybody, and we can't have that.
Interesting approach (Score:2)
How even-handedly would they enforce this? (Score:2)
Does this mean that E-Bay will be prohibited from banning sales of firearms?
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Occupation could be encompassed by religion (eg. a vicar) and arguably by genetic information (genetics influence all of our major decisions in life). It's also covered by "all persons".
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All persons, also include other businesses, especially in California - https://en.wikipedia.org/wiki/... [wikipedia.org].
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