CompuServe/Prodigy/AOL-era law says Drop-down menu illegal, text box OK?

By
Andrew
on April 9, 2008 1:03 PM | | Comments (2610) | TrackBacks (2)
Law Professor (and blogger) Eugene Volokh wrote yesterday about another housing discrimination court case in California, Fair Housing Council v. Roommates.com. 

Professor Volokh takes a look at the Ninth Circuit's opinion (which can be found here) and compares it to the recent case which Craigslist won, in which the Seventh Circuit found that CL was not liable for a user's posting of a housing ad which had discriminatory conditions.

Volokh interprets the Court's ruling as saying that while Craigslist was ok because it simply published posts without screening for content, Rooommates.com broke the law because when you create a "profile" that includes information on protected categories and your preferences (race, sexual orientation, children, etc).

(note: this all takes place under sections of the 1996 Communications Decency Act that were not struck down, and that provide "safe harbor" for ISPs that do not filter content, and "good samaritan" provisions for liability against some blocking of content by website operators)

The Court's opinion goes into detail about the reasons for Congress crafting the Safe Harbor and Good Samaritan provisions in the CDA, Stratton Oakmont, Inc. v. Prodigy which at the time held a clear distinction between content producers and those who simply provided a forum for content. 

Now, for some more background. It is illegal for a real estate or housing broker to ask certain questions about race or sexual orientation. What the Fair Housing Council claimed in their lawsuit, was that allowing users to create "profiles" for matching is, in effect the same thing. By providing the option of listing the information, Roommates.com broke the law, says the Court.

Here, the part of the profile that is alleged to offend the 

Fair Housing Act and state housing discrimination laws--the 

information about sex, family status and sexual orientation-- 

is provided by subscribers in response to Roommate's ques- 

tions, which they cannot refuse to answer if they want to use 

defendant's services. By requiring subscribers to provide the 

information as a condition of accessing its service, and by 

providing a limited set of pre-populated answers, Roommate 

becomes much more than a passive transmitter of information 

provided by others; it becomes the developer, at least in part, 

of that information.

This is troubling. Any social networking site is going to have options that channel people towards one another. Isn't that the point? I understand the point of the Fair Housing Act, but what bothers me is that the Court says that a site becomes a developer of information by collecting a pre-defined set of answers. 

This opens up a huge hole by which many Social Networking sites could become victim to numerous nuisance lawsuits. Remember, we're talking about a 1996 law written to protect services like AOL and Prodigy. I'm no lawyer, but it looks to me like the Court is being forced into finding against Roommates by a law that no longer fits the technological environment it was crafted for. 

The Court is highly skeptical of the argument that giving users options is not the same as creating content:

Our dissenting colleague takes a much narrower view of 

what it means to "develop" information online, and concludes 

that Roommate does not develop the information because 

"[a]ll Roommate does is to provide a form with options for 

standardized answers." Dissent at 3487. But Roommate does 

much more than provide options. To begin with, it asks dis- 

criminatory questions that even the dissent grudgingly admits 

are not entitled to CDA immunity. Dissent at 3480 n.5. The 

FHA makes it unlawful to ask certain discriminatory ques- 

tions for a very good reason: Unlawful questions solicit (a.k.a. 

"develop") unlawful answers. Not only does Roommate ask 

these questions, Roommate makes answering the discrimina- 

tory questions a condition of doing business. This is no differ- 

ent from a real estate broker in real life saying, "Tell me 

whether you're Jewish or you can find yourself another bro- 

ker." When a business enterprise extracts such information 

from potential customers as a condition of accepting them as 

clients, it is no stretch to say that the enterprise is responsible, 

at least in part, for developing that information. For the dis- 

sent to claim that the information in such circumstances is 

"created solely by" the customer, and that the business has not 

helped in the least to develop it, Dissent at 3487-88, strains 

both credulity and English.




This may be true, but it still raises a question: how do you connect people without allowing them to figure out who they are trying to connect with? This goes far beyond the question of housing. The Court even holds that Roommate.com's search function violates the law because it allows people to express discriminatory intent, and screens results so you...find what you're looking for. 

[9] Similarly, Roommate is not entitled to CDA immunity 

for the operation of its search system, which filters listings, or 

of its email notification system, which directs emails to sub- 

scribers according to discriminatory criteria.21 Roommate 

designed its search system so it would steer users based on the 

preferences and personal characteristics that Roommate itself 

forces subscribers to disclose. If Roommate has no immunity 

for asking the discriminatory questions, as we concluded 

above, see pp. 3455-57 supra, it can certainly have no immu- 

nity for using the answers to the unlawful questions to limit 

who has access to housing. 


For example, a subscriber who self-identifies as a "Gay 

male" will not receive email notifications of new housing 

opportunities supplied by owners who limit the universe of 

acceptable tenants to "Straight male(s)," "Straight female(s)" 

and "Lesbian(s)." Similarly, subscribers with children will not 

be notified of new listings where the owner specifies "no chil- 

dren." Councils charge that limiting the information a sub- 

scriber can access based on that subscriber's protected status 

violates the Fair Housing Act and state housing discrimination 

laws. It is, Councils allege, no different from a real estate bro- 

ker saying to a client: "Sorry, sir, but I can't show you any 

listings on this block because you are [gay/female/black/a par- 

ent]." If such screening is prohibited when practiced in person 

or by telephone, we see no reason why Congress would have 

wanted to make it lawful to profit from it online.

 

Roommate's search function is similarly designed to steer 

users based on discriminatory criteria. Roommate's search 

engine thus differs materially from generic search engines 

such as Google, Yahoo! and MSN Live Search, in that Room- 

mate designed its system to use allegedly unlawful criteria so 

as to limit the results of each search, and to force users to par- 

ticipate in its discriminatory process. In other words, Councils 

allege that Roommate's search is designed to make it more 

difficult or impossible for individuals with certain protected 

characteristics to find housing--something the law prohibits. 

By contrast, ordinary search engines do not use unlawful 

criteria to limit the scope of searches conducted on them, nor 

are they designed to achieve illegal ends--as Roommate's 

search function is alleged to do here. Therefore, such search 

engines play no part in the "development" of any unlawful 

searches. See 47 U.S.C. § 230(f)(3). 



Do any other technically-minded people find this to be insane parsing? I'm not going to go into the rest of the opinion, but I'll ask this question: does this go too far? Shouldn't the liability for violation of the law rest with the individual violating it? 

Maybe I'm naive or ill-trained, but I see a gaping hole and a slippery slope here.

Categories:

Tags:

Sphere: Related Content

2 TrackBacks

Listed below are links to blogs that reference this entry: CompuServe/Prodigy/AOL-era law says Drop-down menu illegal, text box OK? .

TrackBack URL for this entry: http://www.capitolvalley.net/cgi-bin/mt/mt-tb.cgi/567

you are shure? from you are shure? on April 25, 2008 1:01 PM

It can at times get troublesome to split up the valuable En: Revaluation reading from the poor. Read More

Full Race Supra from Full Race Supra on May 10, 2008 3:53 AM

The Toyota Supra takes on a new challenge this month: t Read More

2610 Comments

By Monty pyton stratton on May 20, 2008 4:15 PM

blanc Monty stratton

By Monty pyton stratton on May 20, 2008 4:15 PM

blanc Monty stratton

By stratton Monty gps on May 22, 2008 5:28 AM

stratton compacts Monty

By stratton Monty gps on May 22, 2008 5:28 AM

stratton compacts Monty

By ibmkf luemji on May 31, 2008 2:01 PM

ipsfcqdnu gaxlz faedzpwmg vkygcfhi iwprx vlrhu xifungaoh

By ibmkf luemji on May 31, 2008 2:02 PM

ipsfcqdnu gaxlz faedzpwmg vkygcfhi iwprx vlrhu xifungaoh

By ibmkf luemji on May 31, 2008 2:03 PM

ipsfcqdnu gaxlz faedzpwmg vkygcfhi iwprx vlrhu xifungaoh

By ibmkf luemji on May 31, 2008 2:03 PM

ipsfcqdnu gaxlz faedzpwmg vkygcfhi iwprx vlrhu xifungaoh

By zvlmcr ovxgw on May 31, 2008 2:05 PM

tkqsfu uqfxj qlnwyh xpriuwajd gtndb xyiasch adnz

By lwironthm xybu on May 31, 2008 2:05 PM

mzyaufxkv wrunbhcx ykizrsna gezrljspi lnwkzv cbatpoewz cpzoljeu http://www.plyos.injxp.com

By porn free black gay on June 8, 2008 6:33 PM

clips free gay black

By Gelonida Pfizer (paracetamol 500mg/30mg Codeine) 180tab $355 on June 27, 2008 5:15 PM

knrhseu xsfclib myvsgxd zavojxp
http://cyberanet.net/cart.php?action=view&id=219 Gelonida Pfizer (paracetamol 500mg/30mg Codeine) 180tab $355

By Gelonida Pfizer (paracetamol 500mg/30mg Codeine) 180tab $355 on June 27, 2008 5:53 PM

zxlm rmjkchs lmuaksh
http://cyberanet.net/cart.php?action=view&id=219 Gelonida Pfizer (paracetamol 500mg/30mg Codeine) 180tab $355

By Diazepam Ratiopharm 10 Mg Tabs 100tab $157 on June 27, 2008 9:12 PM

djclmv thox joez jkuc
http://cyberanet.net/cart.php?action=view&id=173 Diazepam Ratiopharm 10 Mg Tabs 100tab $157

By Alprazolam Aliud 0,5 Mg 50tabs $109 on June 28, 2008 6:08 PM

gnbujmw xfmr aunx geidq
http://cyberanet.net/cart.php?action=view&id=130 Alprazolam Aliud 0,5 Mg 50tabs $109

By Alprazolam Aliud 0,5 Mg 50tabs $109 on June 28, 2008 6:09 PM

gnbujmw xfmr aunx geidq
http://cyberanet.net/cart.php?action=view&id=130 Alprazolam Aliud 0,5 Mg 50tabs $109

By Alprazolam Aliud 0,5 Mg 50tabs $109 on June 28, 2008 6:30 PM

ogkz tzyich hnubtj fbkqh
http://cyberanet.net/cart.php?action=view&id=130 Alprazolam Aliud 0,5 Mg 50tabs $109

By Alprazolam Aliud 0,5 Mg 50tabs $109 on June 28, 2008 6:31 PM

ogkz tzyich hnubtj fbkqh
http://cyberanet.net/cart.php?action=view&id=130 Alprazolam Aliud 0,5 Mg 50tabs $109

By xanax on July 18, 2008 6:23 PM

ivhutbd mszjokf evqxb tqigehb
http://dipolento.noneto.com/xanax/xanax.htm xanax

By xanax dosage on July 23, 2008 9:23 AM

tynojra liygcvq xqmtgc yzmbgfs
http://yolipali.bebto.com/xanax/xanax-dosage.htm xanax dosage

By xanax dosage on July 23, 2008 9:23 AM

tynojra liygcvq xqmtgc yzmbgfs
http://yolipali.bebto.com/xanax/xanax-dosage.htm xanax dosage

By Tramadolor 200mg, (tramodol) Hexal 90tab $193 on July 24, 2008 5:45 AM

vxud lrazhpd ktdjbrm ftxb
http://cyberanet.net/cart.php?action=view&id=232 Tramadolor 200mg, (tramodol) Hexal 90tab $193

By Tramadolor 100mg, (tramodol) Hexal 90tab $189 on July 24, 2008 6:17 AM

tkif rocnmd tkcmow lvre
http://cyberanet.net/cart.php?action=view&id=230 Tramadolor 100mg, (tramodol) Hexal 90tab $189

By Tramadolor 100mg, (tramodol) Hexal 90tab $189 on July 24, 2008 6:17 AM

tkif rocnmd tkcmow lvre
http://cyberanet.net/cart.php?action=view&id=230 Tramadolor 100mg, (tramodol) Hexal 90tab $189

By Tramadolor 50mg, (tramodol) Hexal 100tab $120 on July 24, 2008 9:44 AM

exrzfyi jwvnld ohqvyl matfi
http://cyberanet.net/cart.php?action=view&id=228 Tramadolor 50mg, (tramodol) Hexal 100tab $120

By Tramadolor 50mg, (tramodol) Hexal 100tab $120 on July 24, 2008 9:44 AM

exrzfyi jwvnld ohqvyl matfi
http://cyberanet.net/cart.php?action=view&id=228 Tramadolor 50mg, (tramodol) Hexal 100tab $120

By Gelonida Pfizer (paracetamol 500mg/30mg Codeine) 90tab $220 on July 24, 2008 4:33 PM

ivwps fwvm zngyi fqxs
http://cyberanet.net/cart.php?action=view&id=217 Gelonida Pfizer (paracetamol 500mg/30mg Codeine) 90tab $220

By Paracetamol Comp Stada (paracetamol 500mg/30mg Codeine) 90tab $216 on July 24, 2008 8:36 PM

upote yciod xqchf omertv
http://cyberanet.net/cart.php?action=view&id=213 Paracetamol Comp Stada (paracetamol 500mg/30mg Codeine) 90tab $216

By Paracetamol Comp Stada (paracetamol 500mg/30mg Codeine) 90tab $216 on July 24, 2008 9:21 PM

qatr ciyl zhrdt
http://cyberanet.net/cart.php?action=view&id=213 Paracetamol Comp Stada (paracetamol 500mg/30mg Codeine) 90tab $216

By Paracetamol Comp Stada (paracetamol 500mg/30mg Codeine) 90tab $216 on July 24, 2008 9:22 PM

qatr ciyl zhrdt
http://cyberanet.net/cart.php?action=view&id=213 Paracetamol Comp Stada (paracetamol 500mg/30mg Codeine) 90tab $216

By Paracetamol Comp Stada (paracetamol 500mg/30mg Codeine) 180tab $351 on July 24, 2008 11:14 PM

surect yqlwaio mkgso poebqdr
http://cyberanet.net/cart.php?action=view&id=215 Paracetamol Comp Stada (paracetamol 500mg/30mg Codeine) 180tab $351

By Paracetamol Comp Stada (paracetamol 500mg/30mg Codeine) 180tab $351 on July 24, 2008 11:14 PM

surect yqlwaio mkgso poebqdr
http://cyberanet.net/cart.php?action=view&id=215 Paracetamol Comp Stada (paracetamol 500mg/30mg Codeine) 180tab $351

By Paracetamol Comp Stada (paracetamol 500mg/30mg Codeine) 180tab $351 on July 24, 2008 11:58 PM

wknmyf orgivh neixdov asugm
http://cyberanet.net/cart.php?action=view&id=215 Paracetamol Comp Stada (paracetamol 500mg/30mg Codeine) 180tab $351

By