Internet Law: Fair Housing Council v. Roommates.com

The background here is fairly simple. The Communications Decency Act (CDA)grants a safe harbor for online providers of an "interactive computer service" from things that others might post.

So, for example, if someone other than me posted in the comments that Frau Blücher of deliberately scaring horses, I could not be held responsible in a libel suit.

What happened here is that Roomates.com is a roomate get together service, and when one logs in, you are asked about things like race, sex, sexual preference, religion, whether one has children, etc.

The problem here is that advertising using these categories an unambiguously clear violation of the fair housing act, and they were sued by the fair housing councils of San Diego and the San Fernando Valley.

Roomates.com claimed that they were immune under the CDA because the users of the service, and not Roomates.com entered the data, but the 9th circuit court of appeals called bullsh$#.

They said that Roomates.com required in order to participate, and as such, it was generating the illegal content itself.

I agree wholeheartedly with Eugene Volokh, who says that they made the right call. They were deliberately creating discriminatory ads, and deliberately facilitating these ads, as opposed to the hand wringing of publius of Obsidian Wings and Susan Crawford.

The analogy here is the difference between a bookstore carrying a publication that infringes on the Fair Housing Act, and the publication that actually carries those illegal ads.

The internet should not be a magic wand to excuse illegal behavior. Publius argues

..... that litigation if often done in bad faith. As any real litigator will tell you, the point of litigation isn’t necessarily to vindicate a right, but to harass an opponent with discovery, document productions, and other expensive tactics. So long as a claim is plausible, you can inflict real damage (and maybe get a favorable settlement) even if you think you will ultimately lose.

Every bookstore operator operates the same way. The books you host do not open you up to law suits, but the store newsletter does.

The internet is not a license to break the law, and we have case law distinguishing between hosted content and user generated content, and this was clearly the latter. Roomates.com is guilty as hell.