FHAA & the Internet:
The Prospects for SelfRegulation
Tim Iglesias
University of San Francisco
School of Law
April 17, 2009
FHAA’s Goals
 Eliminate discrimination in housing
 Promote integrated living patterns
Objectives of Section 3604(c)
 Prevent market-limiting discrimination
 Punish psychic injury to members of
protected classes
 Promote public perceptions that Anti-D is the
law in housing
Per Schwemm and others:
In order for the FHAA to attain its
goals, enforcement is not (and never
will be) enough,
fair housing must become the dominant
social norm.
The Internet is fast displacing other forms of
communication, including regarding property transfers
through both sales and rental
What’s at stake is:
 much more than websites matching roommates--it’s all
rentals and sales
 much more than some explicitly discriminatory
postings on neutral websites—it’s the potential for
internet to become an engine of discrimination
Therefore, the Internet presents both an
important opportunity and grave risks
to the attainment of FHAA’s goals
If the internet becomes a place where users
know they can expect to be able to
discriminate in housing with impunity,
the hard-won gains of promoting fair
housing will be easily and rapidly undone
and the FHAA’s goals undermined.
To realize the great opportunity for the
FHAA presented by the Internet,
it must become a place where AntiDiscrimination norms in housing are
broadly perceived by Internet users
to be in force
This could happen:
 by law (legislative action or litigation),
 by voluntary self-regulation or
 by some mix
Let’s explore the potential for voluntary selfregulation…
beginning with craigslist, the “gold standard”
of FHAA social norm promotion*
*Thanks at least in part to the Chicago
Lawyers’ Committee lawsuit & Project
Sentinel Fair Housing
Elements of craigslist FHAA


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Strong statement of FH law in prominent place on every
relevant page: “Stating a discriminatory preference in a
housing post is illegal”
Substantial, user-friendly information about FHAA and
other anti-discrimination laws including FAQs, examples
of discriminatory postings, and a “fair housing forum” for
interactive discussion
Links to HUD; link to NFHA to find local fair housing
group
Flagging function which leads to discriminatory ads being
taken down
Fair Housing Info
Why this is good for FHAA?


Puts to rest fallacy that “nothing useful can be done”

NB: tracks almost all of relief sought in the lawsuit
Serves the goals of FHAA and Section 3604(c)

mass exposure

at least 25 million users of the site (overall) per month

Craigslist’s dominance in this arena

regular and repeated exposure by both housing providers
and seekers reinforces the norm

opportunity for preferred social norm to trump/regulate
via flagging function by private parties
Why/how it works for craigslist




Cheap to put up
Essentially costless to maintain and operate
Not affect its “business” (currently)
Makes it appear as a “good citizen”
But note:
Currently, craigslist has no legal duty
to do any of this
What are the other rental
housing websites doing?
Caveat: This is not a scientific sampling.
Wide range and variety

Some include some information about FHAA
with an explicit endorsement of FHAA






but not so prominently as craigslist
usually a link at the bottom of the page in small font,
sometimes with the equal housing opportunity symbol
only a few of these have some kind of flagging
function
Some include a moderate amount of info about
FHAA
Some include only a minimal reference
Some make no reference at all
Conclusion re: other sites


Include inconsistent types and amounts of
information
Include inconsistent referral information


One links to local board of realtors
Some include mistakes about the laws
Civil Rights Act of 1966 instead of 1866
 “Property owners and managers are subject to
FHAA”

Hopeful vision = All or most adopt
craigslist info and format


Content uniformity is best for promotion of
FHAA social norm, but something less than
uniformity might suffice
In principle, content uniformity could be
achieved through a collective effort by leaders in
the internet community
The Darker Side: Part 1

Numerous “branded websites”
Part of recognized phenomenon of internet
“balkanization”
 Types

Religion: Christian, Jewish, Muslim
 Race: white supremacist
 Sexual Orientation


Some for-profit; some free “community service”



If ISP not liable under FHAA, then has
opportunity and incentive to market itself to
various communities
On these sites, posters not need to state
discriminatory preferences because website
provides context
Therefore these websites facilitate effective
discrimination but neither ISP nor poster are
liable under FHAA
The Darker Side: Part II
Market Realities



There is still substantial “demand” for
discrimination
There are substantial profit-seeking
entrepreneurs willing to create websites where
the demand can be met
Perversely, the more websites which voluntarily
self-regulate, the greater the profit opportunity
and incentive for other websites to allow and even
encourage discriminatory posts
Critical Market Context
Given the background of substantial, existing and
widely recognized racial segregation in the actual
housing world,
it is easy for neutral-appearing websites to cater to
discriminatory desires,
e.g. by allowing categorization at the
neighborhood level.
Many already do this.
Conclusion
Ultimately, for self-regulation to serve the
FHAA goals, there must be universal
participation by ISPs
 This appears unlikely
 Without it, the Internet becomes an engine
for housing discrimination
 Therefore, imposition of fair housing law
on ISPs appears necessary

Congressional legislation is the best
route





Congress made the right policy choices in 1968 and 1988 in
adopting fair housing as the law of the land.
Nothing about the emergence of the Internet casts doubt
upon those policy decisions.
If the Internet enables discrimination, the FHAA’s goals
cannot be attained and will be undermined.
The current anomaly of newspapers and some websites but
not others being subject to FHAA is unfair and bizarre.
Congress can make a targeted regulation that is sufficiently
narrow to not limit free speech and to preserve the vibrancy
of the Internet by carving out a clear and distinct exception to
CBA’s immunity for FHAA as it did for intellectual property
rights and criminal law.