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The New York Times
Straight Or Gay?
U.S. Court Says Web
Site Can't Ask
By REUTERS, from
nytimes.com on the Web, April 3, 2008
SAN FRANCISCO -- A
roommate-finding site cannot require users to disclose their sexual orientation,
a U.S. appeals court ruled on Thursday, in the latest skirmish over whether
anti-discrimination rules apply to the Web.
The U.S. 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
Roommates.com LLC.
"This decision represents a significant departure from what has been settled law
across the country," defense attorney Timothy Alger said in a statement.
"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'
"Web sites are complicated enterprises, and there will always be close cases
where a clever lawyer could argue that something the Web site operator did
encouraged the illegality," Kozinski wrote. "Such close cases, we believe,
must be resolved in favor of immunity."
"Where it is very clear that the Web site 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 Web site," 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."
The Fair Housing Council of San Fernando Valley and the Fair Housing Council of
San Diego filed suit against the Web site, claiming it violated the Fair Housing
Act and various state laws.
(Editing by Eric Auchard and Xavier Briand)
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