Straight or gay? Site can't ask
2008-04-04 07:20
San Francisco - A roommate-finding site
cannot require users to disclose their sexual orientation, a
US appeals court ruled on Thursday, in the latest skirmish
over whether anti-discrimination rules apply to the web.
The US 9th Circuit Court of Appeals said Roommates.com,
which obliges users to list their sexual orientation, was
different than internet sites where people can volunteer or
withhold personal information.
To inquire electronically about sexual orientation would
not be different from asking people in person or by telephone
if they were black or Jewish before conducting business, the
panel said in an 8-3 ruling that partly overturns a lower
federal court decision.
"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," 9th Circuit
chief judge Alex Kozinski wrote. "Not only does Roommate ask
these questions, Roommate makes answering the discriminatory
questions a condition of doing business."
Arizona-based Roommates.com says it offers more than
100 000 rental listings on its site across the United States
and is owned by Roommate.com LLC.
"This decision represents a significant departure from what
has been settled law across the country," defence attorney
Timothy Alger said. "We believe the government
has no business regulating the selection of roommates or
advertising for roommates."
The court contrasted such requests for information with
online search engines such as Google, which could allow people
to search for terms such as "white roommate".
'Close cases'
"Websites are complicated enterprises, and there will
always be close cases where a clever lawyer could argue that
something the website operator did encouraged the illegality,"
Kozinski wrote. "Such close cases, we believe, must be resolved
in favour of immunity."
"Where it is very clear that the website directly
participates in developing the alleged illegality - as it is
clear here with respect to Roommate's questions, answers and
the resulting profile pages - immunity will be lost."
A Roommates.com section allowing users to add additional
comments of their choosing is immune from liability as outlined
in the 1996 Communications Decency Act, the San Francisco-based
court found.
Congress "didn't intend to prevent the enforcement of all
laws online", the court said. "Rather, it sought to encourage
interactive computer services that provide users neutral tools
to post content online to police that content without fear that
... they would become liable for every single message posted by
third parties on their website," it said.
Three judges dissented, saying the court was creating a
dangerous precedent and future confusion for internet firms.
"The majority's unprecedented expansion of liability for
internet service providers threatens to chill the robust
development of the internet that Congress envisioned," Judge
Margaret McKeown wrote.
Roommates.com "should be afforded no less protection than
Google, Yahoo, or other search engines".