Tag Archives: section 230

roommates.com: no 230 safe harbor for discriminatory housing ads

Just saw that the 9th Circuit has issued its en banc opinion finding that Roommates.com is not eligible for Section 230 immunity for discriminatory postings. Haven’t read it yet.

Decision at up at the 9th Circuit website. Opinion by Kozinski, who usually gets this stuff so maybe it’s not too bad.

link from eric goldman

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Roommate.com reversed

The Ninth Circuit reversed the lower court in Fair Housing Council v. Roommate.com, limiting Section 230. Section 230 is the federal statute that immunizes online services providers for their users’ content. Most courts have construed Section 230 broadly, protecting ISPs against all sorts of liability. Intellectual property is (surprise) specifically exempted.

In this case, the Fair Housing Council sued Roommate.com for violations of the Fair Housing Act, which prohibits housing advertisements that state discriminatory preferences. The lower court held that Roommate.com, as an online provider, was immunized by Section 230 for postings on its service that allegedly violate the Fair Housing Act’s discriminatory housing ads prohibition.

The Ninth Circuit’s opinion, written by J. Kozinski, distinguished Roommate.com from a protected service based on three main features:
* Roommate.com shaped its users’ input with a form questionnaire that specified gender, sexual orientation, and with-children choices;
* Roommate.com’s search mechanism which has the same pulldown search options (gender, sexual orientation, and with-children);
* Roommate.com emails people with listings based on profile preferences (gender, sexual orientation, and with-children)

J. Reinhardt would have also held Roommate.com liable for the discriminatory content posted by users in the comments section, but the majority held that that information, which was not solicited by nor built into the search engine, was not Roommate.com’s responsibility.

J. Ikuta dissented from liability, and would have followed Carafano finding broad immunity even on the form submission.

… So what does it mean? My quick take is this:

First, readers will probably be familiar with these issues from the Craigslist case, and concerned about the 7th Circuit appeal. In my opinion, this case can be reconciled with the decision in the Craigslist case (ND Ill, a 7th Circuit court). This decision expressly held that the “no parameters” forms that are just open-ended do not create liability, and Craigslist.com’s housing forms are primarily open-ended: address, rent, cats/dogs. That decision is on appeal to the 7th Circuit. Should the 7th Circuit elect to address this aspect of the decision, that’s a fairly clear distinction to make. The 7th Circuit need not address this, though, because both the search & the email features that Kozinski brought up really hinge on the structured data input, which is the only real point of distinction between a “content provider” and a “content service”.

Second, despite Kozinski’s dancing, the case will be harder to reconcile with Carafano v. Metrosplash.com, a 2003 9th Circuit case that considered defamation & privacy liability for an online personals service that set up forms for publishing user input. (Carafano, 339 F.3d 1119.) In particular, it adds some weight and significance to the distinction between an “ICP” and an “ICS” (information content provider and interactive content service, respectively).

Third, the decision’s major point of distinction between Carafano and this case was that the ISP established policies. So establishing policies that reiterate the law will be key for ISPs in the wake of this decision. Kozinski stressed that the service in Carafano did not solicit the problematic information and in fact expressly forbade some aspects of it. So, under this decision, establishing policies that reiterate the law will go some way toward protecting an ISP. While this isn’t the worst outcome for a speech-related law, it seems (to me) to be a waste of time, and I’d point out that it burdens ISPs with educating their users about the law. This sort of burden is, to my mind, inconsistent with notions of ISPs as “utilities”, and also inconsistent with the broad, unfettered access to communications that the First Amendment contemplates.

Fourth, I imagine that this case will be used by all who seek to limit Section 230’s broad immunity for ISPs. Whether the case constitutes a high-water mark for limitations on that liability immunity, or merely a beachhead, remains to be seen.

update: Eric Goldman analyzes the decision at greater length, and you can get the flavor from the title “Ninth Circuit screws up 47 USC 230”.

PS – More on the FHA: I always think about, and rarely remember to point out, that one of the contested categories is sexual orientation, which isn’t included in the Fair Housing Act, although various state anti-discrimination codes do include it. Some people have also been confused about the roommate exception, which permits discrimination by roommates for shared-housing situations. If you lease a room in your apartment or house, for instance, you can discriminate on religion, etc. (Although shared-housing people can discriminate, advertising those discriminatory preferences is not protected.) So, generally, commercial landlords may not discriminate on race, sex, familial status, etc. (but they can discriminate on sexual orientation); shared-housing lessors may discriminate; advertising discriminatory preferences is prohibited, period. (But, again, advertising preferences against or for sexuality would be okay under the FHA.)

A failure of the public interest tech law community

From my perspective, the Section 230 (qualified by dicta) victory in Chicago Lawyers’ Committee for Civil Rights Under Law v. Craigslist (PDF), is fine, unsurprising, but a relief. But more importantly, to me, the case demonstrates a significant and ongoing failure of the public interest tech law community: Explaining to people outside our community why it is in the best interests of progressives and folks fighting discrimination to enable a robust sphere for communications.

For those not in the know, the CLCCRUL fights housing discrimination. One way they do it is by using laws that prevent the publication of discriminatory housing ads in, for instance, newspapers. The CLCCRUL filed suit against Craigslist for discriminatory housing ads that were posted on its website. Craigslist lets users post their own ads, and lets users “flag” other user-oriented content that is illegal for whatever reason, like the Fair Housing Act. It’s a largely automated and user-driven moderation process like many others on the Internet. In 1996, Congress passed Section 230 which protects Internet service providers (called “Online Content Services” or OCS’s) from liability as a “publisher” for their users’ content. Courts have pretty much uniformly read Section 230 as Congress exempting ISPs/bulletin boards and the like from any liability for their users’ messages (except IP which is explicitly exempted from S.230’s “safe harbor”). Legally, there isn’t much to the case, because Section 230 squarely applies. Emotionally, as a matter of justice, it seems to some to be a different matter.

Section 230, like copyright law, clickwrap clauses, reverse engineering, WIPO, Internet jurisdiction, and other such issues can seem pretty bloodless when you’re fighting for the right to housing, reproductive decision-making, and healthcare, or to end race discrimination, the death penalty, or torture. Social-change activists may humor us occasionally, but they don’t see those of us in the information activist community as really, truly, fighting for something that they should care about. They just don’t get it.

To me, these issues are fundamentally free expression issues — which, as Emma Goldman saw, underpin the right to advocate for every other right.

For Section 230, for instance: The Internet is the largest and most open platform for human communications that has ever existed. The technology needed to gain access to every other person on the Internet is increasingly affordable to everyone, with cell phone networks, free wireless municipal networks, cheap computers, and so on. People and “society” more generally are now learning to navigate and contribute to and draw from the increasingly vaster floods of knowledge. I believe that the transformative power of that access to knowledge offers humans the best opportunity yet to transcend the petty powers of principalities, the tyranny of learned prejudice, the prison of ignorance. The pen is mightier than the sword–it has the power to destroy fascism at its root.

And Section 230 is a critical piece of that. If you can’t speak because a gatekeeper controls the speech, and the gatekeeper could be subjected to liability under someone else’s local rules, then your ability to speak and access speech is set to the lowest common denominator available to all. A race to the bottom in terms of what’s allowed.

Permitting people to speak in untrammelled ways leads to offensive and arguably harmful speech. But if you create a chokepoint for speech on the greatest speech platform yet to exist, then others will be only too happy to use that chokepoint for their own agendas.

And it’s not just speech. The people that CLCCRUL is representing–anybody seeking housing, because everybody benefits from a non-discriminatory housing market–are the primary beneficiaries of an open, user-controlled housing information market. They have access to more postings and information. They don’t have to go through rental agents who may have secret or subconscious prejudices. They have the ability to flag biased postings and police the community, themselves. (It’s the ultimate form of community policing, and it works a hell of a lot better than any attempt at governmental regulation ever can.) And for a myriad of other reasons, an open, responsible-to-the-community, speech platform is better, both in the short-term and in the long-term, for people seeking housing and for people seeking an end to invidious discrimination of all kinds.

I haven’t even gotten to the real and qualitative differences between printing-press and broadcast media, and the Internet. But it’s a worthwhile exercise to look at the best arguments for regulating print and broadcast media, and assess how those arguments play out on the Internet. Defamation, for instance. One good reason for regulating print publishers of libel (defamation) more harshly than spoken publishers of libel (slander) is that print publishers have a powerful tool at their disposal that the victim of defamation may not: the ability to reach a mass audience relatively cheaply. How does that map to the Internet? Well, it turns out that in terms of being able to respond to the libelous speech, the Internet is a lot more like spoken word (slander) than it is like printing press or broadcast (defamation): It’s pretty easy to get access to the same forums & the ability to respond to the libelous speech. So, one could argue, libelous speech on the Internet is less harmful than libelous speech made on the radio station or in the local newspaper. The rationales for restricting publication in print newspapers may likewise apply differently in the Internet. This is a case that our community should be making, persuasively and directly, to communities that are seeking, for very good reasons, to regulate speech on the Internet.

… Anyway, rather than castigating or calling for Rule 11 sanctions against the CLCCRUL attorneys as a number of folks have done, I’d rather see us try to reach out to them to explain why it’s in the best interests of their clients to support Section 230 and craigslist, instead of attacking it. (I don’t mean CLCCRUL directly, btw; once you’re in litigation it’s difficult to shift gears. But other social-change activists.) Others, no doubt, can make different, better, or more persuasive arguments than I have. I hope they do. We in the public interest tech community have an affirmative responsibility to lay out these arguments, not just to ourselves, but to our activist allies, whoever they might be.