Roommate.com Case To Drop Lawsuit Cluster Bomb

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A Fair Housing dispute could have windfall consequences when it comes to online services. Though the Fair Housing Council’s courtroom victory is technical and largely semantic, the ruling, as it stands, finds that Roommate.com is liable for third-party information.

Roommate.com Case To Drop Lawsuit Cluster Bomb
Roommate.com Case To Drop Lawsuit Cluster Bomb

The issue surrounds the drop-down menus on Roommate.com and the information provided in them for users to select. For example, a user seeking a roommate can select that they prefer a smoker or a gay roommate in the drop-down menu.

Because Roommate.com supplied (i.e., created and provided) those options, and not a user typing it in, it doesn’t count as third-party content.

As worded in the court document, this particular decision does not apply to whether Roommate.com actually violated the Fair Housing Act. It’s about whether or not those drop down menus breach the protections offered to interactive computer services (ICS) in oft-cited Section 230 of the Communications Decency Act (CDA):

At this stage, we are only concerned with whether Roommate is immune from liability under the CDA, not whether it actually violated the FHA. We describe the Councils’ FHA theories only to show that the mere asking of questions might, indeed, violate the FHA. It will be up to the district court on remand to decide initially whether Roommate violated the FHA by publishing its form questionnaires.

So, technically, if drop-downs and questionnaire forms offer content worded and presented by the ICS, then they automatically change the status of the ICS to ICP (Internet content provider) as an ICP is one that is responsible in whole or in part of content development on the site.

If that is allowed to stand, then every online entity providing drop-downs or forms could be erasing their liability protection under the CDA – even Google, even you. Let the Craigslist lawsuits begin.

Technology & Marketing Law Blog‘s Eric Goldman thinks this case is potentially one for the US Supreme Court to decide:

[I]f the Ninth Circuit doesn’t correct this opinion, and fast, I predict the following:

1) Websites will shy away from gathering structured data from users. This is silly, of course, because structured data can be more useful for users, but this ruling makes structured data much more risky.

2) Craigslist will lose its very similar case in the Seventh Circuit. The Seventh Circuit already had some bad 230 dicta in Doe v. GTE, and this opinion will give the Seventh Circuit judges all the ammo they need to hold Craigslist liable.

3) Plaintiffs are going to have a field day with the language in this opinion, especially as Reinhardt reformulated the test. I predict lots of new lawsuits probing this opinion.

And if you think about it, that’s a lot a fallout from a simple semantic argument. Let’s hope the court system works for the right side this time.

Roommate.com Case To Drop Lawsuit Cluster Bomb
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