Fair Surfing

Last Thursday, the 9th Circuit sitting en banc handed down an 8-3 opinion that will make Internet service providers think twice about what information they will require their consumers to divulge as a condition of service.   In Fair Housing Council v. , the court considered whether the Communications Decency Act of 1996 gave immunity to an Internet service provider that matched people renting out rooms with people who needed a place to live.   The court interpreted the statute to deny such immunity to providers who required users to identify themselves according to sex or sexual orientation before they could avail themselves of the service.

The irony of such cyber-discrimination is that the Internet was once seen as the way minorities and women would avoid animus.   In 1991, Ian Ayres published a landmark article titled “Fair Driving” that has become part of the canon of civil rights scholarship.   The article was an empirical study of race- and gender-bias in real-time car sales that used more than 180 testers of different races and genders.   The tests revealed that white males received better prices than blacks or women did.   Indeed, “white women had to pay forty percent higher markups than white men; black men had to pay more than twice the markup, and black women had to pay more than three times the markup of white male testers.”

What was the answer to such face-to-face discrimination?   It used to be hiring a white male agent to do one’s bidding (literally).   More recently, however, savvy surfers have used the Internet to combat the effects of real-time discrimination.   As law professor Jerry Kang observes is his powerful 2000 article “Cyber Race,” the Internet allows subordinated groups with physically visible traits to pass as members of the dominant group.   And if a merchant cannot discriminate between two buyers, he cannot discriminate against one of them.

But the Internet is just a technology, meaning that it can be used to further discrimination as well as to thwart it.   Web sites where one individual is seeking another for a relationship—romantic or contractual—often articulate blatantly discriminatory preferences.   The question is whether the deep-pocketed Web site that hosts such a message can be held liable for providing the forum.

For the most part, the CDA has answered this question with a clear no. That has to be the right answer:   In contrast to newspapers, which can sometimes be held liable for carrying private messages, Internet service providers carry too much content to be held responsible for it all.

However, as the 9th Circuit has interpreted the CDA, if the Internet service provider requires individuals to disclose information about themselves to use the service, it is enough of a participant to lose this immunity.   This is also probably right, because the site is more actively creating incentives for the individual to expose herself to discrimination.   (Indeed, the irony here is that some of these coerced disclosures unmask individuals who could pass in face-to-face interactions.)

The 9th Circuit remanded the case to the district court to let it decide whether, stripped of its immunity, the Web site had violated the federal Fair Housing Act (which prohibits sex-based discrimination) or California state law (which prohibits orientation-based discrimination in the housing context).   But given that its sensible balance is at odds with decisions in other circuits, this may be headed to SCOTUS.