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June 5, 2007
A few weeks ago, I compared the rule of law in the United States and in China concerning property ownership. As it is, all legal frameworks fare poorly under radical change and US laws have a long way to go before they recover from the Internet revolution.
Witness this sample of three lawsuits filed in the American courts.
- the first, last year against Craigslist for discrimination under the Fair Housing Act, decided in favor of Craigslist and brought this January to the attention of the US Seventh Circuit Court of Appeals (*)
- the second, several years ago against Roommates.com for discrimination under the Fair Housing Act, decided in favor of Roommates.com but reinstated last week by the US Ninth Circuit Court of Appeals as reported by Adam Liptak(**)
- the third, last week against eHarmony.com under anti-discrimination California laws in the Los Angeles County Superior Court (***)
All cases involve Internet companies which convey user personal preferences for matching purposes. The first two attack Internet match-makers for letting users express such preferences, the last one for not letting users express certain preferences. Were some readers to imagine the first two cases will at least command similar outcomes, a thoughtful reviewer of the Roommates.com ruling, Michael H. Erdman, remarked that "the Seventh Circuit is not often persuaded by the Ninth Circuit as to anything" (****).
Technical change creates havoc by outdating laws, yet good laws avoid to be tied down by technology lest they require as much annual maintenance as a software program. Two questions illuminate this paradox:
- what current balance has been upset by technological change?
- what new balance is both desirable and viable?
In the instance the answer to the first question is obvious: privacy is not what it used to be.
Take the Fair Housing Act. It makes an exception for owners who live on the premises in close quarter with their tenants, in recognition of a right to express private opinions in one's own life. But this exception does not extend to the use of any means "to make, print or publish", i.e. to express, such private opinions in public. At issue today is the break down of traditional markers between the public and private spheres. Unless eprivacy rights and responsibilities are established anew, there can be no limit to the extension of the public sphere and its associated censorship.
As a result companies such as Craigslist and Roommates.com, which cannot afford the price of pronaocratic protection, are caught in a legal trap. The more they give a public voice to private individuals, the more they are bullied into becoming the tool of an Orwellian society. The more efficient the tools they deploy to empower private expression, the more they risk to be shut down. If asking controversial questions becomes as dangerous as providing impolitic answers, shouldn't the US get further tips from Chinese media regulators? Although if you come to think of it, have the owners of walls and fences ever being prosecuted in China for the content of dazibaos pasted there?
The case of eHarmony may seem quite different. Yet the provision of good services to private individuals calls for ever specialized tools. If the law were to require such a company to offer the whole gamut of tools or none at all, the support for eprivacy would be curtailed. Were the plaintiff to win, gynecologists could be next but would mandating they practice urology also increase healthcare quality?
The answer to my second question however is far less obvious. The law of the land will wobble for a while.
Philippe Coueignoux
- (*) ........ see the "Craigslist controversy" in this Wikipedia article. For Craigslist's position, see Jim Buckmaster, its CEO.
- (**) ...... Web Site is Held Liable for Some User Postings, by Adam Liptak (New-York Times) - May 16, 2007
- (***) .... Woman sues eHarmony for discrimination, an Associated Press report - June 1, 2007
- (****) .. Summary of the Roommates.com decision, by Michael H. Erdman (Tipple Leonard & Erdman) - May 16, 2007
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