Matching Service Not Immune As ISP

A roommate-matching website that uses drop down menus and requires users to identify the user’s sex, sexual orientation and whether he would bring children to a household is not entitled to immunity for its actions, the Ninth Circuit ruled.

Under the Communications Decency Act of 1996 (CDA), an internet service provider is immune against liability arising from content created by third parties. However, the appellate court found that Roommates.com is not entitled to immunity because it is in part the creator of the content posted by third parties.

The lawsuit was brought by the Fair Housing Council of San Fernando Valley and San Diego, alleging that the website-roommates.com-violates the federal Fair Housing Act by discriminating on the basis of sex and family status. Roommates argued that it was merely a service provider under the CDA and thus immune from suit. The trial court agreed and dismissed the case.

The appellate court, in a divided opinion, remanded the case back for trial. Roommates.com is a matching service for persons seeking to rent out rooms and persons looking for rooms. It has about 150,000 active listings. Listings are made by subscribers who must register. As part of the registration process, Roommates created questions that are answered using a drop down menu with limited choices. For example, subscribers must disclose whether they are currently “Straight male(s),” “Gay male(s),” “Straight female(s),” or “Lesbian(s).”

The appellate court majority found that asking the questions can violate the Fair Housing Act in the “physical world. For example, a real estate broker may not inquire as to the race of a prospective buyer, and an employer may not inquire as to the religion of a prospective employee. If such questions are unlawful when posed face-to-face or by telephone, they don’t magically become lawful when asked electronically online. The Communications Decency Act was not meant to create a lawless no-man’s-land on the Internet.” By requiring the subscribers to respond to certain questions which they cannot refuse to answer, the appellate court found that Roommates.com “becomes much more than a passive transmitter of information provided by others; it becomes the developer, at least in part, of that information. And section 230 provides immunity only if the interactive computer service does not ‘creat[e] or develop[]’ the information ‘in whole or in part.'”

The dissent said the majority opinion was an “unprecedented expansion of liability for Internet service providers that “threatens to chill the robust development of the Internet that Congress envisioned.”

Fair Housing Council of San Fernando Valley et al v. Roommates.com, LLC, Ninth Cir. No. 04-56916 and 04-57173, filed April 3, 2008.