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

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.

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.

[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).