Last week I wrote about how Craigslist benefited from a 7th US Circuit Court of Appeals ruling that it is not liable for discriminatory housing messages posted by users in its forums. The court ruled the site serves as an intermediary party, not a publisher. Therefore it was protected by the safe harbor provision of the DMCA.
This week the venerable Roommate Connection, also an online service, failed to make a similar case in the 9th Circuit.
Unlike Craigslist, which provides comment fields in which writers may publish whatever message they like, the Roommate Connection provides dropdown fields which require those offering housing to disclose the gender and sexual orientation of all living in a household, and it requires those seeking housing to identify protected information about themselves and their preferences for roommates.
While this same data exchange likely happened through Craigslist, that exchange would have be more completely structured by the parties. Many websites prefer to use dropdown menus because they standardize responses. Yet, standardizing responses is the start of editorial control, which was ruled to be inconsistent with merely being an “intermediary party.”
Even though Roommate Connection’s intent was likely non-discriminatory, such a precedent could later be used to protect more intentional discrimination in housing. Congress may not be very focused on Internet rights, but fair housing is an issue that can catalyze a huge response.
By giving safe harbor a sharper focus on intermediaries, a key part of Internet law is spared the uncertainty of legislative response to detangle it from interfering with housing rights.
The Seventh and the Ninth Circuits have drawn a meaningful difference between these circumstances, one which seems likely to continue to protect disinterested Internet Service Providers with safe harbor, and to prevent discriminatory practices in housing.