Roommate.com LLC, a company that operates a Web site that matches people with rooms to rent with tenants, may have violated fair housing laws by requiring users to disclose their sex, sexual orientation and whether they had children who would live with them, an appeals court has ruled.
In a ruling that sends a lawsuit against the company back down to a district court, the U.S. Court of Appeals for the Ninth Circuit overturned the lower court’s ruling that Roommate.com was protected by the Communications Decency Act if users of the company’s Web site used it in ways that violated fair housing laws.
In a precedent-setting decision, the appeals court said that although Roommate.com was not responsible for answers provided by users in open-ended questions, it became more than a passive participant in the process when it created online forms that asked users for information that could be used to discriminate against them — namely, their sex, family status and sexual orientation.
"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," the appeals court ruled.
In an opinion published Thursday, the court also said Roommate.com’s search function was "designed to steer users based on discriminatory criteria," but said "generic" search engines such as Google and Yahoo! are protected by the Communications Decency Act.
A Roommate.com subscriber who self-identified as a "gay male," the court said, would not receive e-mail notifications of new housing opportunities from users who limit the universe of acceptable tenants to "straight males," "straight females" and "lesbians." Subscribers with children would not be notified of new listings where the owner specifies "no children."
Roommate.com’s search engine "differs materially from generic search engines such as Google, Yahoo! and MSN Live Search, in that Roommate designed its system to use allegedly unlawful criteria so as to limit the results of each search, and to force users to participate in its discriminatory process," the court ruled.
In sending the case back down to a lower court for trial, the appeals court said that the message to Web site operators is clear: "If you don’t encourage illegal content, or design your Web site to require users to input illegal content, you will be immune" under the Communications Decency Act.
Roommate.com LLC — which operates the Web site www.roommates.com — must now defend itself against allegations that collecting information from users that could be used to discriminate against them violates fair housing laws.
Roommate.com was sued by fair housing councils in San Diego and California’s San Fernando Valley, which claimed the company was effectively a housing broker and that its business violated the federal Fair Housing Act and California housing discrimination laws.
The lawsuit was dismissed by the United States District Court for the Central District of California, which agreed with Roommate.com’s arguments that the Communications Decency Act provided immunity from any unlawful actions of its users.
In overturning the district court’s decision, the Ninth Circuit Court of Appeals did not rule on whether the company or its users violated fair housing laws, but said the Communications Decency Act provided Roommate.com with only partial immunity.
The Communications Decency Act was passed by Congress to protect Web site operators from lawsuits stemming from content created by their users. The Act states that "No provider … of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."
The act defines an interactive computer service as "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server."
A Web site operator can be both a service provider and a content provider, the Ninth Circuit Court ruled — and be immune from liability for some of the content it displays to the public, but subject to liability for other content
Writing for the majority, Chief Judge Alex Kozinski said that if a Web site operator "passively displays content that is created entirely by third parties, then it is only a service provider with respect to that content," and protected by the Communications Decency Act. But when a Web site operator is responsible in whole or in part for creating or developing, the Web site is also a content provider.
The court rejected arguments that Roommate.com should be held liable for statements displayed in an "additional comments" section of users’ profile pages.
At the end of the registration process, Roommate prompted subscribers to "personalize" their profiles by "writing a paragraph or two describing yourself and what you are looking for in a roommate."
Users were presented with a blank text box, and provided "often very revealing answers," Kozinski noted, such as applicants "MUST be a BLACK GAY MALE," or "NOT looking for black muslims." Other common themes included requests to live without "drugs, kids or animals" or "smokers, kids or druggies," the court noted.
The court agreed with Roommate.com’s arguments that the Communications Decency Act provided it immunity for such statements because they were published as written, and the company did not provide any specific guidance on what the essays should contain.
"Roommate is not responsible, in whole or in part, for the development of this content, which comes entirely from subscribers and is passively displayed by Roommate," the court ruled. "Without reviewing every essay, Roommate would have no way to distinguish unlawful discriminatory preferences from perfectly legitimate statements."
Editor’s note: This story has been edited to remove an erroneous statement that Roommate.com stopped collecting information in forms that could be used to discriminate against users. Roommate.com continues to collect the information, as the claims made in the lawsuit against the company remain in dispute.
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