Full Ninth Circuit to rehear Roommate.com case

Remember the Ninth Circuit’s ruling in Fair Housing Council of San Fernando Valley v. Roommate.com LLC? How could you forget.

Plaintiff fair-housing groups had charged Roommate.com with Fair Housing Act violations in connection with its online questionnaires and member profiles. This past May a three-judge Ninth Circuit panel ruled that Section 230 does not immunize Roommate.com for all of the content on its website and in its email newsletters. Specifically, the panel concluded that Roommate was “responsible” for its questionnaires because it created or developed the forms and answer choices (rendering the website a content provider of the questionnaires). Explaining that it did not read Carafano “as granting CDA immunity to those who actively encourage, solicit and profit from the tortious and unlawful communications of others,” the panel also ruled that

[b]y categorizing, channeling and limiting the distribution of users’ profiles, Roommate provides an additional layer of information that it is “responsible” at least “in part” for creating or developing.

The decision thus left Roommate.com exposed to potential FHA liability for its questionnaires and user profiles. But that may change.

Eric Goldman and Howard Bashman report on their respective blogs today that the Ninth Circuit has granted Roommate.com’s petition for rehearing en banc. Stay tuned.

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Regulation of Online Intrastate Gambling

Earlier this week Congressman Tom Feeney (R-Fla), in written materials supplementing previous floor remarks, addressed the 2006 Unlawful Internet Gambling Enforcement Act and what he views as a threat to that law:

[L]ast year, I cosponsored legislation with Congressman Bob Goodlatte to help stop the widespread growth of gambling over the internet. Though Federal law already prohibits gambling over telephone wires, the passage of this legislation was necessary to maintain the original intent of the law while also bringing it up to speed with the explosion of current and future technology. However, this update of the law made clear that it would only affect interstate commerce, respecting the rights of states by leaving to them the decision whether and how to regulate gambling within their own borders. New legislation before the Financial Services Committee attempts to undo all of this previous work, instead granting the federal government the expansive and exclusive right to regulate all online gambling. This new legislation would represent the first time in history that the Federal Government would be given power to issue gambling licenses, and it marks a significant shift away from allowing states to determine for themselves what type of policy is best. Proponents of this legislation state that the bill offers states the right to “opt out” of this regulation, but the truth is that the states already have the right to determine their own policy towards gambling without any broader federal regulation that threatens to undermine their control over licensing standards and enforcement actions.

I haven’t seen the bill the Congressman is referring to, and I’m not expressing any opinion here about gambling, or whether it should be legal. But I am scratching my head about the concept of online intrastate gambling.

Is it technologically feasible for a wagering site based in Illinois to only allow persons physically located in Illinois to place bets? I suppose it could be tried, but something tells me that lots of determined people would find ways around such a restriction, which would presumably invite federal attention.

Perhaps the bill’s opponents are instead worried about states losing out on tax revenues that could one day be extracted from online gambling sites purportedly operating exclusively within a single state?

If anyone is familiar with the proposed legislation, I’d be interested in your opinion.

Lawyer asserts copyright, forbids publication of cease and desist letter

Ponder this one. Users (including, allegedly, Website Owner) post allegedly defamatory Statements about Company on Website. Company isn’t pleased, and hires Lawyer to submit cease and desist letter to Website Owner. Lawyer asserts in his letter that the Statements are actionable and, per the Ninth Circuit’s recent Roommate.com ruling, Section 230 does not protect Website Owner.

But Lawyer does not stop there. He asserts that the cease and desist letter is copyrighted, and forbids publication thereof. Website Owner proceeds to share the novel letter with Ralph Nader’s Public Citizen. Then things get interesting.

Check out Greg Beck’s account at PC’s Consumer Law & Policy Blog.

Think Lawyer will similarly prohibit publication of the takedown notice that is undoubtedly coming next, notwithstanding, inter alia, DMCA provisions that may expose Lawyer to liability for such a demand?

Online Bounty Hunting

Addressing the House of Representatives earlier this week, Congressman Ted Poe (R-Texas), founder and co-chair of the Congressional Victim’s Rights Caucus, announced that “high-tech bounty hunting is now occurring in the United States.” He went on to laud the role of the Internet (mentioning LexisNexis in particular) in protecting children from convicted sex offenders:

The Internet allows law enforcement to track down known sex offenders in the United States. States can find convicted sex offenders that must register under the new Adam Walsh Child Safety Act. Failure of a child molester to register is a Federal crime.

So these convicted sex offenders who do not register with local authorities are now being arrested using LexisNexis Internet tracking.

Florida police were hunting for a known sex offender. They traced him to Illinois, but Illinois officials claimed the offender was dead. The Internet search tools tracked the child molester to Indiana, where he was arrested for absconding and for failure to register as a known sex offender.

Studies show that convicted sex offenders often remain dangerous and become recidivists once released from prison. Sex offenders are now being held accountable for failing to register; law enforcement is informed of known sex offenders’ whereabouts; future recidivism is prevented; and, meanwhile, children are safer because of high-tech bounty hunting.

Of course law enforcement and others have been making such use of online resources for several years now. But with all the recent headlines touting the “evils” of certain Internet destinations, I thought Congressman Poe’s positive remarks merited some attention here.

National Federation of the Blind v. Target Corporation – Summary and Update

National Federation of the Blind v. Target Corp., originally filed in California state court and removed last year to the Northern District of California, was one of several cases that finally motivated me to get this blog going (as you may have inferred from one of the bullet points in my first post). Now that Judge Patel has certified two classes in the case, I thought this would be a good time to put together a short (?) summary of the litigation.

Background. The case revolves around the accessibility of the defendant’s website – Target.com – to blind and visually-impaired persons, who “access websites by using keyboards in conjunction with screen-reading software which vocalizes visual information on a computer screen.” Plaintiffs include the National Federation of the Blind (“NFB”), National Federation of the Blind of California and Bruce F. Sexton. They allege in their First Amended Complaint that defendant Target Corporation (“Target”) denies “blind people throughout the United States equal access to the goods and services Target provides to its non-disabled customers through” Target.com. Plaintiffs note that the site “offers products and services for online sale and home delivery that are available in Target retail stores.”

Plaintiffs complain of “thousands of access barriers that make it difficult if not impossible for blind customers to use” Target.com. Specifically, plaintiffs allege that Target.com lacks alt-text on graphics, contains inaccessible image maps, lacks adequate prompting and labeling, denies keyboard access and requires that transactions be performed solely with a mouse. In order to demonstrate a nexus with Target’s stores (see below), plaintiffs also submitted affidavits pertaining to two alleged effects of such inaccessibility – diverted purchasers (persons deterred from going to a Target store after bad experiences with Target.com) and in-store barriers (increased time and expense incurred during in-store shopping as a result of the inaccessibility of Target.com).

Plaintiffs’ Claims. Plaintiffs allege violations of the federal Americans with Disabilities Act (“ADA”) and California’s Unruh Civil Rights Act and Disabled Persons Act (“DPA”). They seek injunctive relief (including an order requiring Target “to take the steps necessary to make Target.com readily accessible to and usable by blind individuals), statutory damages, and declaratory relief. As you by now know, the complaint also asks for certification of a nationwide class and a California subclass.

Rulings on Defendant’s Motion to Dismiss the Complaint.

1. ADA claims

The court noted that “Plaintiffs’ legal theory is that unequal access to Target.com denies the blind the full enjoyment of the goods and services offered at Target stores, which are places of public accommodation.” In other words, the alleged place of public accommodation is the brick and mortar store, not the website, which gets most of plaintiffs’ ADA claims past the pleading stage. However, the court also ruled that “to the extent that Target.com offers information and services unconnected to Target stores, which do not affect the enjoyment of goods and services offered in Target stores, the plaintiffs fail to state a claim under [the ADA].” Accordingly, pages on the website that offer goods for sale that cannot be purchased or ordered at a physical Target store are presumably dismissed by the court’s ruling.

2. State law claims

The court considered, in detail, Target’s argument that application of the California state laws to Target.com violates the “dormant” Commerce Clause. Yet the court explained that “[t]he commerce clause is not necessarily implicated since Target could choose to make a California-specific website.” The court concluded that “it is inappropriate at the motion to dismiss stage to assert a commerce clause violation based on the mere fact that Target, at the remedy stage, may ultimately choose to make its nationwide website accessible to the blind.”

[While the state law claims stand for the time being, Judge Patel probably did Target a favor by putting the Commerce Clause inquiry on hold, thereby allowing the company to raise it again later. Had she been pressed to rule on the issue as a matter of law, Judge Patel likely would have barred the defense. Which of course isn’t to say she won’t bar it at a future date.]

Ruling on Plaintiffs’ Motion for Preliminary Injunction. The court denied, without prejudice, plaintiffs’ motion for a preliminary injunction (which sought an order “directing Target to take affirmative steps . . . to change the programming of its websites to accommodate the blind.”), noting that “plaintiffs cannot demonstrate that the relevant facts clearly favor a finding that Target.com is inaccessible to the blind.”

Target’s Position. Target “denies the existence of any ‘accessibility barriers’” as alleged in a pre-complaint letter submitted by NFB, denies most of the allegations contained in the complaint, and denies that the plaintiffs “have suffered or incurred any injury or damage in this matter.” The company has also asserted twenty-one affirmative defenses to the plaintiffs’ claims, including disability law-related defenses, unconstitutional vagueness (due process), and violations of the (dormant) Commerce Clause.

Class Definition Ruling. Earlier this year, before ruling on class certification, the court modified the definition submitted by the plaintiffs for the putative nationwide class, essentially requiring a nexus between the website and a physical Target store, as required by the ADA. The new definition is set forth in the next section.

Certification of Nationwide class and California subclass. Last week Judge Patel granted plaintiffs’ motion for certification of a nationwide class (for claims arising under the ADA) and a California subclass (for violations of the two state laws). Unlike the ADA claim, the court concluded, with respect to the claims arising under the two California statutes, that “[n]o nexus to the physical stores need be shown.”

Accordingly, the nationwide class consists of “all legally blind individuals in the United States who have attempted to access Target.com and as a result have been denied access to the enjoyment of goods and services offered in Target stores.” The California subclass consists of “all legally blind individuals in California who have attempted to access Target.com.”

Next up – merits discovery, perhaps followed by a summary judgment motion from Target.

Miscellaneous.

  • While considering the dormant Commerce Clause defense in connection with plaintiffs’ motion to dismiss, the court almost seemed to taunt federal lawmakers and encourage more state legislation and/or lawsuits in this area: “[T]he lack of congressional action explicitly addressing accessibility requirements for private websites should not be construed to bar the extension of the protections of California statutes to these websites.”
  • I wonder if Target is rethinking its decision to forego a jury trial. While the case has yet to reach the merits, the court comes across as somewhat cold toward the company’s position/sympathetic to plaintiffs, at one point suggesting that Target “seeks to escape the requirements of the ADA.” (emphasis added).
  • The dismissal of ADA claims with no nexus to physical Target stores is good news for dot coms with no brick and mortar stores open to the public. However, the court ruled that the state claims here require no such showing. Another reason to keep following this case.
  • Again the court has not yet ruled on the merits. However, it did note that one question of law to be resolved is “whether Target has satisfied its obligations under the relevant statutes by accommodating access including, but not limited to, providing a customer service telephone number.” While I know nothing about the accessibility of Walmart.com, and am not familiar with any reasonable accommodation decisions on this issue, Walmart may want to reconsider its recent decision to eliminate telephonic customer service for its website users. Here’s a more recent account of Walmart’s move.
  • I am by no means the first person to blog on this case, or the court’s certification decision. Check out recent posts by Eric Goldman and Thomas O’Toole.
  • Law.com recently published an interesting article relating to this and similar disputes, identifying several which culminated in settlements.
  • The American Bar Association has weighed in on the issue with a resolution relating to accessibility standards for law-related websites.

EBay targets the sale of recalled goods online

Although it already prohibits the practice, the Associated Press reports that EBay is directing its sellers not to offer recalled products for sale on its website (violators may be terminated from the service and forfeit fees), including links to sites listing recalled items, and taking other steps to address the acquisition of recalled goods online.

Putting aside for the moment the questions of whether and to what extent EBay is exposed to liability for transactions occurring on its site, and/or has any duties to its sellers, buyers or others in connection with such deals, it would be hard to argue that EBay’s actions described in this article are not prudent. I would think that these steps will result in fewer sales of recalled items on EBay (the king of online auctions). While some miscreants may simply flock to other sites, these practices should produce more informed consumers that will do a little homework before making a sale or purchase online.

Also, this announcement is obviously good PR for EBay, and may help alleviate some of the valid concerns of lawmakers, regulators, watchdogs and others with what is being bought and sold online. Finally, these actions should enhance the story EBay can tell a judge or jury the next time it gets sued in connection with a sale facilitated by the website.

End of the road for Delfino/Roommate advice

This morning I pleasantly came across BNA’s “E-Commerce and Tech Law Blog.” Thomas O’Toole of BNA advises me that linking to the blog is no problem, which is good, because I wanted to highlight two of his posts from yesterday.

O’Toole reports that the U.S. Supreme Court has denied certiorari in Delfino v. Agilent Technologies, a California state court decision broadly construing Section 230 protections. I had no idea the petition was pending, but am not surprised by the Court’s refusal to hear an appeal. His report also updates us on the status of the Perfect 10 petition.

In a separate post, Thomas comments upon a recently published law firm piece relating to Section 230 immunity. It’s a good overview article that highlights the Ninth Circuit’s controversial Roommate.com decision and offers practical advice for websites utilizing user-generated content.

The E-Commerce and Tech Law Blog has been kicking for over a year now, and I’m adding it to my reader immediately.