Do You Know Who You’re Dating? Proposed New Laws Affecting Online Dating
by Jerry Glover
April 3, 2012

If you’ve ever used an on-line dating service like match.com or eHarmony.com you may have had a feeling that you really don’t know with whom you’re chatting. Is this person really who he/she says? Well, the Illinois legislature is considering two bills that may give you a little peace of mind (or scare you to death), at least if you’re concerned about whether the person you’re chatting with has a criminal past.

By a vote of 42-9, the Illinois Senate has passed SB2545 (“The Internet Dating Safety Act”) which would require on-line dating services to let their members know if the service has performed criminal background checks on users of the site. The bill now goes to the Illinois House where a House committee has recently approved almost identical legislation (“The Internet Safety Act”, HB4083).

How can the State of Illinois control on-line services whose principal offices are probably not located in Illinois?  The preamble to the Senate bill tries to nip this potential jurisdictional problem in the bud by noting that offering on-line dating services to residents of Illinois and accepting membership fees from Illinois residents “means that an Internet dating service is conducting business in this State and is subject to regulation by this State and the jurisdiction of the State’s courts.” Assuming the legislation becomes law, it may take more than this conclusory statement to convince courts that they have jurisdiction over out-of-state internet companies.

But what is an “Internet dating service?” Both bills use the same definition: “[A] person or entity directly or indirectly in the business, for profit, of offering, promoting or providing access to dating, relationship, compatibility, matrimonial or social referral services principally on or through the Internet.” This definition might easily fit the business of a match.com or eHarmony.com. But what about those sites like Craigslist.com which offer as part of their dating services the opportunity for people to meet others who just want to hook up (or at least that’s what we’ve heard)? Does “hooking up” meet the “compatibility” prong of this definition? Does it meet the “relationship” prong? Is providing for hook ups a “social referral service”?

Let’s look at what the legislation in both the House and Senate would require. First, dating sites would have to provide a safety awareness notification that lists and describes safety measures to make users of the site more aware of safe dating practices. The legislation gives three notification examples that might be used (the legislation does not indicate where on the site safety awareness notices must be placed):

  • “Anyone who is able to commit identity theft can also falsify a dating profile.”
  • “There is no substitute for acting with caution when communicating with any stranger who wants to meet you.”
  • “Never include your last name, e-mail address, home address, phone number, place of work or any other identifying information in your Internet profile or initial e-mail messages. Stop communicating with anyone who pressures you for personal or financial information or attempts in any way to trick you into revealing it.”
  • “If you choose to have a face-to-face meeting with another member, always tell someone in your family or a friend where you are going and when you will return. Never agree to be picked up at your home. Always provide your own transportation to and from your date and meet in a public place with many people around.”

The centerpiece of the legislation, however, is the requirement that sites let their Illinois members know if the site conducts criminal background checks on individuals before they are allowed to become members of the site. Both bills define “criminal background screening” as follows:

“a name search for a person’s criminal convictions initiated by an on-line dating service provider and conducted by:

“(1) searching available and regularly updated government public record databases for criminal convictions so long as such databases, in the aggregate, provide substantial national coverage; or

“(2) searching a database maintained by a private vendor that is regularly updated and is maintained in the United States with substantial national coverage of criminal history records and sexual offender registries.”

The first type of background screening does not include a requirement of the second type: search of “sexual offender registries.” Perhaps those who have been convicted of sex offenses would be found in a search of a government criminal conviction database as required by the first option. But it is unusual that “sexual offender registries” requirement would not be listed in both methods of conducting a background search.

If an on-line dating service does conduct criminal background checks on all of its “communicating members” (whatever that means), the site must reveal that fact, “clearly and conspicuously” in bold, capital letters in at least 12-point type on the website pages encountered by people when they sign up for the service. The service must also disclose whether the site “has a policy allowing a member who has been identified as having a criminal conviction to have access to its service to communicate with any Illinois member. The site must also warn its members that no background check is foolproof, that the fact that the site does background checks may give members a “false sense of security”, that background checks are not a perfect safety solution; that criminal have the ability to circumvent “even the most sophisticated search technology”, that not all criminal records are public in all states and not all databases are up to date, that only publicly available convictions are included in the background check and that convictions/arrests occurring in foreign countries may not be found in the background check.

If an on-line dating service does not conduct criminal background searches as a matter of course, it must notify Illinois members of that fact. This disclosure must be “clear and conspicuous”, in bold, capital letters in at least 12-point type and must be provided in two or more of the following forms:

  • When an e-mail message is sent or received by an Illinois member [presumably this means a message sent by or to the dating service but it is not clear if the disclosure must be made each time an e-mail is sent between the service and the Illinois member in perpetuity];
  • In a “click-through” or other similar presentation requiring an Illinois member to acknowledge that they have received the information required by the legislation;
  • On a profile which describes a member to an Illinois member;
  • On the website pages or homepage of the service when an Illinois residents signs up for the service.

The House bill would require the Illinois Attorney General to adopt rules and regulations meant to carry out the requirements of the law.

Except for violating the consumer fraud law under certain circumstances neither bill states what penalties would attach to an on-line service which does not comply with the law’s requirements.

Both bills would make it an unlawful practice under the Illinois Consumer Fraud and Deceptive Business Practices Act for an on-line dating service to make a false claim that it conducts background searches.

There is some opposition to these bills. One state senator, Kwame Raoul (D-Chicago), stated to the Chicago Tribune that the legislation was too much government intrusion into private enterprise and people’s dating lives declaring that the legislature was “not the mom and dad.” Another Illinois senator questions whether the state could enforce any penalties for violation of the act against out-of-state companies.

We’ll keep you informed about the fate of this legislation.

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