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Several states are cracking down on the online dating industry, proposing new laws that would, among other things, mandate criminal background checks on all those looking for love on the Internet.
To date, New York is the only state that has a law regulating online dating sites, but six other states have introduced similar legislation mainly in the last year. They are California, Florida, Michigan, Ohio, Virginia and Texas.
Lawmakers seeking to regulate the online dating scene claim that the industry isn't doing enough to police itself, and consequently, is putting vulnerable people at risk of meeting up with predators.
Proposed legislation has varied from state to state, with some states wanting to make criminal background checks mandatory, and others wanting online companies to alert surfers upfront that background checks on potential dates have not been done.
FALSE SECURITY?
Attorney Markham Erickson of Holch & Erickson in Washington, D.C., who counsels dating and social-networking sites on legislative and regulatory matters, noted that some of the states' proposals have raised constitutional concerns because of the interstate nature of the Internet.
"It's nearly impossible for a dating service to put state boundaries around the service and comply with a patchwork of state laws," he said.
Michael Marin of Houston-based Vinson & Elkins' Austin, Texas, office, who has represented clients in the online dating industry in recent litigation, said that "[r]ight now if you're a consumer and you meet someone online you can go and pay for a background check.
There's no reason to mandate that." He added that background checks "would create a false sense of security and create a liability for the online dating company."
Last year, Marin successfully defended an online dating company that was sued by a user who allegedly was raped by someone she met on the company's Web site. Marin got the case dismissed, citing the 1996 Communications Decency Act (CDA), which grants broad immunity to Internet companies for content provided by third parties.
Marin is also currently defending Myspace.com in a Texas case involving a 14-year-old girl who claims she was sexually assaulted by someone she met on Myspace, and is seeking to hold the Web site liable. Marin declined to comment on that case. Doe v. MySpace Inc., No. D-1-GN-06-002209 (Travis Co., Texas, Dist. Ct.).
Marin noted that, with background checks, customers could sue over a date who had been screened but turned out to be dangerous. Those users could argue that the company had falsely represented the person as being safe, he said, and that the criminal background check served as "some sort of stamp of approval" by the company.
Yahoo Personals echoed that sentiment, arguing that criminal background checks are unreliable, incomplete and inconsistent.
"We do not believe that the providers of background checks have at this point developed processes that can meaningfully increase the security we provide our customers today," said Yahoo Personals spokeswoman Kelley Podboy. "The systems available are uneven from state to state as well as county by county."
Not all dating Web sites, however, are resisting background checks. TheBadge.org recently started offering free criminal background checks to paid members. Another site, True, offers its users background checks on felons and married people.
Anita Ramasastry, who teaches electronic commerce at the University of Washington School of Law, said that while the online dating industry is already protected against lawsuits through the CDA, how far that protection goes is the new question. She said that Web sites are now faced with the possibility of liability for harm that occurs not on, but off, the Internet, such as rapes or physical assaults.
"What happens when you go offline ... when the harm was offline? It's sort of a gray area and a novel legal question," said Ramasastry, who favors offering broad protection to the dating Web sites, and letting them police themselves.
But lawmakers argue that the industry is too young and immature for that, and people could get hurt.
"It's like the wild, wild West out there," said Michigan state Sen. Alan Cropsey, who is co-sponsoring a bill that would require online dating services to perform routine criminal background checks on users. "When somebody goes online and says, 'I'm so and so,' they ought to be able to check and say 'Hey, is this name popping up anywhere as far as being a sex offender or a domestic violence offender?'"
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