Roommate-Finding Site Can't Ask About Sexual Orientation

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Roommate-Finding Site Can't Ask About Sexual Orientation

Special Report - April 9, 2008
A California appeals court ruled April 3 that an online roommate-matching service can no longer ask users about their sexual orientation. In its 8 to 3 decision, the U.S. 9th Circuit Court of Appeals partially overturned an earlier decision by a lower court in a case involving a web site, Roomates.com, that matches people renting rooms to people looking for room to rent. According to the 54-page ruling, the case began when the Fair Housing Councils of San Fernando Valley and San Diego sued the web site, claiming that it was violating the Federal Fair Housing Act and California’s nondiscrimination housing laws, by requiring users to provide various personal information, including their sex, sexual orientation and parental status. A federal court dismissed the case, ruling that Roomates.com was immune under Section 230 of the 1996 Communications Decency Act, which, according to the 9th Circuit decision, gives web site providers immunity from prosecution for publishing content written by others.

The 9th Circuit disagreed with the lower court, ruling that Roomates.com is not entitled to immunity under the Communications Decency Act. Writing for the majority, 9th Circuit Chief Judge Alex Kozinski noted that the web site requires users to answer “discriminatory questions” before they can use the matching service. “Unlawful questions solicit (a.k.a. ‘develop’) unlawful answers. Not only does Roommate ask these questions, Roommate makes answering the discriminatory questions a condition of doing business,” he wrote. “This is no different from a real estate broker in real life saying, ‘Tell me whether you’re Jewish or you can find yourself another broker.’ 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.”

Three judges dissented in the case, arguing that the majority’s decision “has far-reaching implications in the Internet world.” Judge Margaret McKeown, who wrote the dissent, argued that “whether Section 230 [of the Communications Decency Act] trumps the Fair Housing Act is a policy decision for Congress, not us.” Judge McKeown warned, “The majority’s unprecedented expansion of liability for Internet service providers threatens to chill the development of the Internet that Congress envisioned. The majority condemns Roommate’s ‘search system,’ a function that is the heart of interactive service providers…By exposing every interactive service provider to liability for sorting, searching, and utilizing the all too familiar drop-down menus, the majority has dramatically altered the landscape of Internet liability.”