Appeals Court Says Roommates.com Doesn't Qualify For Safe Harbors
from the uh-oh dept
Lots of folks were surprised last year when the 9th Circuit court ruled that Roommates.com didn't qualify for section 230 safe harbors. Section 230 of the CDA, as you hopefully know, protects service providers from the actions of their users, and the ruling last May would potentially limit those protections. Until then, courts had generally interpreted the service provider clause quite broadly (reasonably so, in my opinion). Last fall, the court agreed to ditch the original ruling and rehear the case with an 11 judge panel. While that was happening, in a similar case against Craigslist, the 7th Circuit found that Craigslist was covered by the safe harbors and was not responsible for discriminatory housing posts.However, it looks like the full panel on the 9th Circuit has decided to buck most other courts on this matter and is siding with the original ruling saying that Roommates.com is not immune from liability for discriminatory postings by its users. The reasoning seems to follow along the lines of the earlier ruling, that Roommates.com gave up its immunity by putting checkboxes and pulldown menus that allowed users to choose discriminatory options -- thus, actively taking part. In fact, the ruling makes it clear that by placing these options and effectively asking discriminatory questions, Roommates.com goes past being a service provider and becomes a content creator itself. Three out of eleven judges disagreed and dissented, claiming that this goes against the basic language of section 230. What's clear is that this issue isn't done yet, and there are going to be a lot more cases coming down the road (and some may target this court, seeing it as more "favorable" to these types of cases).
While it's always a little worrisome when a court tries to limit the coverage of these safe harbors, you can understand where the majority opinion comes from. Roommates.com isn't a neutral party, it claims, because: "Roommate does not merely provide a framework that could be utilized for proper or improper purposes; rather, Roommate’s work in developing the discriminatory questions, discriminatory answers and discriminatory search mechanism is directly related to the alleged illegality of the site." However, the dissenting opinion makes some very good points, noting that the majority seems to mix and match two separate issues: (1) is there discrimination and (2) is Roommates.com liable for any discrimination -- and as such, finds the discrimination (which isn't what the lawsuit was about) and then assigns the blame to Roommates.com. Basically, the dissent is saying that the majority got blinded by the discrimination (without making a legal determination if there really is discrimination) and let that confuse them into assigning liability where it doesn't belong.
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Filed Under: cda, discrimination, roommates, safe harbors, section 230
Companies: roommates.com
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At any rate, this is going to take some untangling from a legal perspective; US anti-discrimination law and the CDA appear to be flatly contradicting each other at this point.
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Preference != Racism
Simply narrowing the candidates by race most certainly does not exhibit the characteristics of racism, it only shows an individual bias or comfort level.
Don't tell me they want to outlaw having a personal preference on who you give the keys to your home now?
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Preference? You don't need not stinking preference!
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Re: Preference != Racism
I was once accused of being racist because I dated people of my own race. I eventually even married someone of my own race. Oh the shame!
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Let me get this straight...
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Re: Let me get this straight...
Like others have noted, though, there is a distinction to be made between discrimination and preference, especially when you're talking about *living with someone*. The issue is muddled by the fact that discrimination is such a touchy subject, I think.
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As i chose the class over another maths class, does this make me racist against people of my own race? Or sexist against women?
Racism isn't THAT prevalent in society, fucking people are too oversensative, generally white people in power saying things like "ooh no, that might offend _someone else_, better scrap it"
What about men who are overtly attracted to asian women? Are THEY racist?
We should all just interbreed for a few generations until we're all the same, that would curb racism.
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Hmmmmmmmmm@that.. the sarcasm is not lost here, but it's totally unfounded. You want to assign the stifling of personal preferences to a political group, then it's "Go Democrats," or more accurately "Go Liberals."
Anyway, just seems like the 9th Circus Court of Appeals is at it again, taking away individual rights to choose who we want to let into our homes.
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Next in the crosshairs...
Seriously, the idea that a service provider can be held liable for helping people find something/someone based on personal preferences is absurd. The only thing more absurd would be if we as individuals were able to be sued because we wanted to exercise the right to free association. Oh, wait, we already have that one covered.
If this whole thing weren't so tragic, it would be laughable. Instead, I think I'll go curl up in a corner and whimper until the 9th Circuit Court tells me I have to share my thumb with someone else.
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Re: Next in the crosshairs...
The actual article summs up the dating sites:
"The court noted that dating sites that promote discrimination are perfectly legal, however -- since people are legally free to turn down dates for flimsy or racist reasons."
Of course, one should be legally free to decide on their roommate for any reason too.
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Uhm....
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Re: Next in the crosshairs...
Of course those laws apply to the realtor - I've never known them to apply to renters searching for a roommate, but that the idea in this case.
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Roommates or landlords?
Like the first commenter I can see the arguments on both sides, and don't think this is by any means an easy case. I think it's clear that landlords shouldn't be allowed to discriminate against tenants on grounds of race, religion, etc. And although I consider myself a "good liberal" I think I can see the argument that choosing a roommate is closer to "dating" or at least choosing your friends than it is to letting a property. Personally I think its a stupid and ignorant way to filter potential roommates, but I would be uncomfortable seeing it made illegal.
Now here's an even trickier one. Should the tenants in an apartment block be able to tell the owner to discriminate, or owners in a condominium be able to discriminate? After all, they too are "living with" the other tenants/residents, albeit not as closely as roommates are. Where do you draw the line?
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Re:
Your example on sexual desire is a good example of how the word isn't necessarily pejorative.
I personally find fairer skin much more attractive than darker skin. This makes my sex drive biased against both people of African heritage and people that like to tan. So, my sex drive is sort of a racist and a "tannist". Do I assume anything of these people's characters based on this? No. But the drive is still racist.
Skin color should be chalked up with other unimportant physical features, such as eye and hair color and such things that have nothing to do with choosing room mates (unless your looking for a sex partner).
Choosing your room mate based on race implies you have negative personality expectations that differ based soley on race and thus that form of racism is in fact pejorative.
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Re: Re:
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Re: Re: Let me get this straight...
How is discrimination not just an extension of preference?
When I go to McDonald's (which I don't) and I am selecting from their "burger" options for one I find preferential, I am being discriminatory.
When I go to a site to find room mates and selecting the things I am seeking for a room mate based upon my personal preferences, I am being discriminatory. If I am actively avoiding room mates who are a different race than I am, I am being discriminatory for the benefit of my preference, which happens to be a racist one. And given this particular situation and form of racism, we can safely assume its pejorative.
Do people you know let you get away with twisting around the meaning of words like that?
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Re: Roommates or landlords?
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Re: Re: Next in the crosshairs...
I think Roommates.com did knowingly facilitate discrimination by allowing its customers to select preferences. So, technically, the decision seems sound. However, I feel selecting a roommate is akin to entering into a relationship with someone. A certain degree of discrimination should be tolerated. I think all parties would agree to some extent, even the potential "victims" of discrimination. I have a young child and I would strongly prefer to know up front if a potential roommate does not want to live children.
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Re: Preference != Racism
Acts of hatred against others can be defined as being an asshole.
And when you mix them, you get a racist asshole.
It seems you just strongly don't want to get yourself labeled with a typically pejoratively used term.
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Let's extend this logic
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Re: Let's extend this logic
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Re: Let me get this straight...
If you can't see why the two are different, then of course you don't understand the ruling.
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What the dif?
I have so much love to give.
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However, I still can't see how Roommates.com doesn't fall under 230. Just because Roommates provides a tool that could be used for discriminatory purposes doesn't make them responsible for the actions of their users.
This ruling basically says that providing a tool that allows for discrimination is the same thing as encouraging discrimination, which is simply not true.
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Is it because it's a company?
So, is this just (possibly) illegal because roommates.com is a business? Or because a poster *could* potentially BE a landlord or realtor?
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Re: Re: Re: Next in the crosshairs...
Whether it's right or valid or true to life isn't the question: is it legal? No. Did Roommates promote it? Yes.
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Re: Is it because it's a company?
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No Liability Yet
Note Page 10:
"We need not decide whether any of Roommates questions actually violate the Fair Housing Act or California law, or whether they are protected by the First Amendment or other constitutional guarantees"
Interesting! Of all the opinions I have read which are predicated on another finding (e.g, that Roommates.com violated the Fair Housing Act) on which there is no ruling, this is the first in which the Judges agreed to hear the case rather than remanding the case until there was a ruling on the predicate. Was this a request for a declaratory judgement? Why in tarnation are we getting an opinion on this at this stage of the game?
I'm confused, as always.
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The problem is if Roommates.com required you to answer these questions, then no, they would not be covered. It is illegal for anyone to require you to answer those questions. This includes schools, employers, the government, etc, etc.
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What if...
Now what if I'm offering just one room in my condo, If I discriminate by race or sex to the peoeple I offer the rental, I am not breaking any law?
Is this right?
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people can choose whom ever
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Re: Uhm....
It's personal choice, and racism is legal.
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I guess you just have no choice
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Re: Re: Re: Let me get this straight...
> racism, we can safely assume its pejorative.
You were doing fine until this last sentence. First, you can't safely assume anything, let alone that someone's roommate preferences are pejorative.
Second, there's nothing wrong with wanting to share your living space with someone whose tastes, culture, customs and ethnicity match your own.
We're talking about the most intimate of associations here: sometimes to the point of even sharing a bedroom and/or bathroom, and if a person wants someone as close to themselves as possible, it's not for you or the government to tell them they can't-- that they have to take the first person that comes along, too bad, so sad.
Should single women not be allowed to advertise for other single women to room with? Do they have to accept men as roommates? (To require otherwise would be gender discrimination, after all.) Do we really want to put women in that kind of a trick bag where they have to live with and share their home with a man they don't even really know?
How far are we going to let this politically-correct government crap intrude upon the most personal decisions in our lives?
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Re: Re: Racist
> on one's race.
No, it doesn't. The *actual* definition of "racist" (as opposed to your own personal self-serving definition) is:
"A belief that race is the primary determinant of human traits and capacities and that racial differences produce an inherent superiority of a particular race."
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It's not a ruling on racism...
Of course, an indiviual can still limit the "type" of person they offer a room rental. After all they are living with them.
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Re: Re: Preference != Racism
I don't think that allowing users to pick race and gender is discriminatory! Its like calling a guy "Racist" because he is only into "Asian" girls!
Its largely a matter of preference! A Palestinian would probably not want to share a room with an Israeli, even if they were friends, simply because you can immediately foresee potential problems, even if they are both very reasonable people, but they would both probably find it easier living with someone who shares their culture.
I do think that the Judge had a terrible lapse of judgment, and turned this into a discrimination trial against roommates.com, essentially slapping them with the blame for any user on their site that just happens to be a biggot, instead of blaming the users themselves!
So if that is the case, why don't we blame newspapers for rooming ads that are specifying that they are looking for a SWF (Single White Female)?
Is the only different the medium??(newspaper/internet)?
They can't have it both ways! Now THAT is discrimination against the Internet!
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WoW
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........
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Re: WoW
If you don't like it, get your Representative to change the law.
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Re:
Something on both our minds?? lol
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Re: Re: Re: Re: Let me get this straight...
Tastes, culture, customs, etc. are all things that should be weighed when choosing someone to live with.
But some stuff like hair, eye or skin color aren't nearly as valid. Heritage neither, as culture doesn't always follow (especially in the US).
Because of our countries history with racism, I think that business's and the government, in a general sense, should be bound from for judging based on race. However, the separate individual shouldn't be. If someone doesn't want a black room mate, it should be within his power to avoid having one. And it is.
In this particular case, I side for Roommate.com. As long as they don't provide a specific capability for filtering via race. Which they didn't when I checked their site earlier. (Maybe they just removed it? Don't know.)
Anyone wasting their time trying to be "politically correct" is a moron.
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Re: Re: Re: Racist
1 : a belief that race is the primary determinant of human traits and capacities and that racial differences produce an inherent superiority of a particular race
2 : racial prejudice or discrimination
Unless you disagree on my use of discrimination as well.
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Re: Re: WoW
The law doesn't need to be changed. The ruling is simply the 9th Circuits' interpretation of the law. Other circuit courts have ruled differently, as noted in the original post.
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Re: What if...
Gender, smoker, income, referrals, credit score, rental history, religion, job, size (huge people and small places don't mix), language (if they cannot read and understand your lease agreement), pets, alcohol use, past felony history, condition of their motor vehicle, children, age, hobbies, college affiliation, high school affiliation, physical attractiveness, or medical ailments; these are all discriminable.
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Re: Re: Re: WoW
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Re: Re: Let me get this straight...
Then why don't you try explaining it?
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Re: Re: Re: Next in the crosshairs...
In that case then it would also be guilty if it "allowed" people to input discriminatory preferences using a keyboard. But the court said no, it was only because they allowed discriminatory preferences to be selected via mouse operated selection boxes.
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Re: Is it because it's a company?
How about if you're gay or lesbian?
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Re:
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Simple fix.
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The Roomates Case As An Outcrop of a Much Larger Social Problem.
http://www.techdirt.com/articles/20080314/163809545.shtml
The Craigslist and Roommates.com cases involve markets which are ultimately driven, not by bona fide landlords, but by prospective roommates. Someone who designs and builds apartment buildings will, insofar as feasible, give each apartment most of the privacy obtaining in a house. He will put in independent entryways if he can. He will focus on building fairly large apartments, each approaching the size of a small house. The most desirable apartment tenant is someone with a substantial income who is single, but would want a big house if he were living in a family, with a spouse and children. It is logical to build the kind of apartment that kind of person would like. With a reasonable level of goodwill on all sides, the personal characteristics of the tenants in different apartments do not impinge on each other. The most common form of tenant screening is to require a substantial deposit and/or prepayment, and to incorporate a prohibition on subletting. By now, of course, a lot of the more upscale apartments have been converted into condominiums, requiring the occupants to put down substantial capital. Discrimination cases arise in the lower and scruffier ends of the housing market, catering to people whose defining characteristic is their inability to put down capital, typically students and poor people. A high proportion of this discrimination involves cases which actually involve illegal subletting, meaning that the rejected applicant has no legal recourse. Hence the search for proxy defendants, such as Craigslist or Roommates.com.
At this point, the main weight of discrimination in housing is not against Blacks per se. We are not talking about prospective roommates here-- we are talking about landlords, businessmen. Businessmen are accustomed to dealing with all manner and conditions of men-- it goes with the territory. There are, of course, damm fools who have never heard of Collin Powell, Condaleeza Rice, or Barrack Obama, but there aren't very many of them. The main weight of discrimination seems to involve children, and perhaps, more specifically, the woman with children, minimal income (minimum wage or welfare), but no husband, who wants to live in a space which would normally be occupied by a single person. This is not a case of the really big firms. They play by the rules, but they also set their prices high enough to exclude welfare families. It is the moderately small landlord, with say, a hundred units, who is likely to be breaking the rules, and sometimes getting caught. Recurrent issues seem to involve children playing in hallways, stairwells, entranceways, and other common spaces, generally because the apartment complex has no practical and appropriate place for them to play. Less frequently, there is an unwillingness to do the paperwork required for Section 8 housing.
It is a technical shortcoming of the fair housing law that it did not envision the possibility that prospective roommates would make open public advertisement, under conditions approximating those of an arranged marriage bureau. In the time when the law was written, back in 1968, even the largest cities had substantial working-class housing quarters, and less space had been rebuilt as apartment complexes. Even New York was still a city of small factories. If you couldn't afford an apartment of your own, and you didn't have someone you already knew and wanted to room with, you found a family to board with, quite possibly with meals included. The age of legal majority at the time was twenty-one, but the median age of first marriage was almost twenty-three for men, and about twenty for women. Colleges were very definitely "in loco parentis," meaning that girls had to live some place where they could be under the moral supervision of a housemother until they were safely married to someone whom their parents approved of. Consider the case of Linda LeClair, the Columbia University coed who, in 1968, got in trouble for living with her boyfriend. Boys were a bit more free, but bear in mind that the microwave oven had not yet been invented, and they were likely to be less than enthusiastic about the prospect of eating their own cooking. If you look at contemporary fantasy literature of bachelordom (Playboy Magazine, James Bond, etc.), you note that it is premised around having a servant. In the real world, a twenty-three-year-old law student, say, would consider himself ahead of the game if he could find a Jewish-mother-type landlady to fuss over him. The idea of being a single young adult, in the modern sense of the word, was substantially invented after 1970. The fair housing law carved out a substantial exemption for small landlords. It did not cover the idea of organized apartment sharing, but it was obviously not the intent to cover situations where multiple tenants were in fact living as a family, sharing meals, etc. I think we can reasonably say that the authors of the fair housing law would have assumed that people wanting roommates would have hooked up with friends of friends, posted advertisements on workplace/school bulletin boards, etc.. That is, they would have advertised semi-privately to locate people with whom they already had some kind of distant relationship. A reasonable interpretation of the law, engaging the underlying intent of the framers, would be to say that a joint tenancy constitutes a legal entity, which, if sufficiently small, should be entitled to the benefit of the small landlord provisions. A reasonable dividing line might be somewhere between five and ten people.
Section 230 liability is basically irrelevant to the Roommates case. Once one recognizes that Roommates.com has something of the character of a marriage bureau, the types of criteria it uses are not extraordinary. Established newspapers have long carried personal advertisements of the same type. People often specify things like ethnic backgrounds. Marriage is not a public accommodation.
Roommates.com has posed a series of questions (viz. sex, family status, and sexual orientation) which do reach to the heart of household life. "Living Together" is often a euphemism for a common-law marriage (displacing the older, and pejorative, terms "Shackmastering" and "Light Housekeeping"). Even if this is not the case, living together still involves a wide range of personal adjustments. For example, are you proposing to live fraternity-fashion, or are you proposing to live in a manner appropriate for bringing up children? If you live in a household with a child, you are perforce, a de facto aunt or uncle, at the least. Children simply do not have a clear understanding of social limits, being nothing if not completely spontaneous. Entering into such a relationship is tantamount to marriage, far beyond the scope of the fair housing laws. Living in a household with an "unfilliated" child is often considered presumptive evidence of paternity for purposes of making out child support orders. The question "are you willing to live with children" often works out, in practice, to "are you willing to seriously consider marrying the children's mother and legally adopting the children." It is not a light undertaking, and should not be trivialized.
What has happened with Craigslist and Roommates.com is that in certain big cities, population pressure has reached extreme levels, to the point that complete strangers are willing to move in together. In New York, at least, this probably involves the operation of rent control, which has the side effect of removing the vast majority of apartments from the open rental market. In the Northeast, generally, there are vast areas of "brownfields" and abandoned/bombed-out buildings, which it has not proved practicable to reclaim. They occupy space, nonetheless. Looking at the Craigslist apartment share listings for New York and Chicago, the New Yorkers seem to be rather older than the Chicagoans; more likely to be employed and less likely to be students; and rather less adaptable. A lot of them seem to work very long hours-- many of the advertisements carry the expectation that people sleep at home, and otherwise spend very little time there. They are often in their thirties, and tend to have the kind of substantial jobs which might reasonably entitle them to places of their own, and which ought, indeed, to be sufficient to start families with-- but New York is New York. Craigslist and Roommates.com are measures of people's desperation in finding places to live. The practical alternative might be to spend two-and-a-half hours a day on a commuter train, and perhaps as much as four hours a day in total commuting time.
Big cities tend to "exclude the middle class," and therefore to present class conflict in its most intractable form. There are about two million men in prison in the United States. Most of them are from urban areas, from the slums geographically adjacent to the places where yuppies are using Craigslist, and where housing discrimination cases are typically arising. Prisoners quite often represent a quarter or more of the total number of men in the area between the ages of 20-45 (what is sometimes described as young men of military age). The prisoners are collectively the fathers of the children of the welfare mothers. The biological father of the welfare mother's child will very probably turn out to be a violent man considerably her senior, with substantially the attitudes of a pimp. He will probably have managed to keep his claws in the welfare mother, regarding her as a "meal ticket," and he will inevitably turn up, sooner or later. If you take the classic welfare mother into your home, you are sooner or later going to have to bounce the pimp off the walls a few times, by way of defining the situation to him. I once met a single Anglican priest who was engaged in single-handedly bringing up the three children of a drug-addicted prostitute. He was generally regarded by those who knew him to be a saint, that is, a man possessed of heroic virtue. Even he contented himself with taking the woman's children, and not attempting to domesticate the mother.
Here we have to incorporate the factor of the "aggressive social worker." Imagine a social worker whose job is essentially to move people from the homeless shelters to into permanent dwellings. By her standards, an eighteen-year-old girl with a six-year-old child is not unpromising-- there are long-term alcoholics and druggies in the shelters, with completely disintegrated personalities. The social worker knows how to use Craigslist, how to set up an e-mail account on her client's behalf, etc. Similarly, she will send e-mails in the client's name, and "supervise her correspondence." In general, she will force the issue where the client would not have done so. The Fair Housing Councils, which brought these cases, are probably the litigative arm of the social workers. However, sooner or later, the social workers' bluff is going to be called. Many people would not consider the client a desirable wife or daughter-in-law.
===========================================
http://www.hud.gov/offices/fheo/F HLaws/
http://www.etext.org/Politics/AlternativeOrange/2/v2n6_bhre.html
http://beatl.barnard.c olumbia.edu/cuhistory/archives/Rosenberg/woman_question.htm
------------------------------------- ------------------------------------------------
A collection of Fair Housing Council press releases, giving something of the flavor of their litigation.
http://www.fairhousingoc.org/news.html
http://www.fairhousing.com/index.cfm?method=p age.display&pagename=releases_schrc06-23-03
http://www.fhcsp.com/pdf/Newmiller%20article.pdf
http://www.fhcsp.com/pdf/Hill%20House%20Press%20Release.pdf
Wheel Chair
http://www.fhcnnj.org/news.htm
http://ndfhc.org/fair_housing/P071%20(FS%20disc%20questions ).pdf
-------------------------------------------------------------------------
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Re: Re: Re: Re: Next in the crosshairs...
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Re: Re: Re: Re: Next in the crosshairs...
Not true. Under real estate law, it IS, in fact, illegal to discriminate based on whether a person has children. That is, you may not refuse to rent or sell to a couple or individual because they have children. Since this case seems to be based on real-estate discrimination laws, that is definately a form of discrimination that roommates.com could be charged for. Which, of course, is ridiculous. If I am a 21-year-old male college student who likes to stay up late and crank up my home theater, etc, a roommate with kids would not be the best option, for everyone's sake. I think it is a perfectly valid and reasonable form of discrimination for a roommate, but NOT for a landlord.
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This is what happens when Modern Liberalism goes amok...
On the one hand we're supposed to be "tolerant" of others and NOT notice differences. And then on the other hand, we're supposed to "celebrate diversity." Modern Liberalism teaches that all behaviors are equal and that no one can judge.
But in everything we do, we make choices. We make decisions. We choose the better of all of the options. This is called living. And it advances us forward.
Here is a video that explains it. You'll need some quiet time because it makes you think and it isn't short.
The Q&A at the end is good too. It's called "How Modern Liberals Think" by Evan Sayet and it explains the mindset that produces Political Correctness. It starts out about 9/11 but he uses it as an example of this philosophy.
http://www.youtube.com/watch?v=eaE98w1KZ-c
I've come to realize that this explanation serves as a basis for understanding all sorts of things about Modern Liberals.
(Btw, "Modern Liberals" are not like the old Liberals who really wanted to help people. People like JFK and Hubert Humphrey would in many ways be considered Conservatives now.)
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The FHA/HUD have lost their minds.
If I'm renting SHARED space, in my owner occupied (or the primary renter), dwelling, the FHA is going to tell me who I can and who I cannot choose as my SHARED SPACE ROOMMATE?!?!?
There is absolutely, 100% no doubt in my mind this will be overturned.
If HUD/FHA feels that as a
Single, Straight, Jewish, Female, (who has Hillel meetings once a week at my home), No Children (I happen to DISLIKE children), allergic to animals, especially dogs.
That I would be REQUIRED to allow “equal access” to a
Disabled (blind-with guide dog), German, Gay White Male with his partner and 3 Children, Professed Satanists, with Professed Neo-Nazi beliefs.
You mean to tell me, if this guy sues me, requesting access to my home because it happens to be 1/4 of a mile from his place of employment, and as a disabled person, he should have preferential housing treatment.
You honestly believe the FHA/HUD has a RIGHT to say I MUST allow him “equal treatment” because he covers just about ever protected class????.
With this ruling, the FHA/HUD says I am unable to choose my SHARED HOUSING ROOMMATE based upon race, color, religion, sex, familial status, or national origin.
ABSOLUTELY ABSURD RULING BY FHA/HUD.
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Re: The FHA/HUD have lost their minds.
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