Cities Rushing To Restrict Airbnb Are About To Discover That They're Violating Key Internet Law
from the bad-ideas dept
Fights over tech policy are going increasingly local. Most technology regulations have been federal issues. There have been a few attempts to regulate on the state level -- including Pennsylvania's ridiculous attempt to demand ISPs filter out porn in the early 2000s. But state legislators and Attorneys General eventually learned (the hard way) that federal law -- specifically CDA 230 -- prevents any laws that look to hold internet platforms liable for the actions of their users. This is why state Attorneys General hate Section 230, but they need to deal with it, because it's the law.It's looking like various cities are now about to go through the same "education" process that the states went through in the last decade. With the rise of "local" services like Uber and Airbnb, city by city regulation is becoming a very, very big deal. And it seems that a bunch of big cities are rapidly pushing anti-Airbnb bills that almost certainly violate Section 230 and possibly other federal laws as well. In particular, San Francisco, Los Angeles and Chicago are all pushing laws to further regulate platforms for short term housing rentals (and yes, the SF effort comes just months after another shortsighted attempt to limit Airbnb failed).
The bills basically look to force people who want to use platforms like Airbnb to register, but then look to hold the platforms liable if a renter does not include the registration info in their profile. Gautam Hans does a nice job in the link above outlining why San Francisco's proposed bill -- which will be voted on shortly -- clearly would fail to survive a Section 230 challenge:
This imposition of liability clearly goes against Section 230, which states in (c)(1) that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” — meaning that, if an information content provider, typically an individual user, posts something illegal, the interactive computer service, typically a website, can’t be held liable for it. Moreover, under (e)(3), “no liability may be imposed under any State or local law that is inconsistent with this section.” States and localities can pass laws that are consistent with Section 230, but anything inconsistent with Section 230 — like the imposition of liability on a website operator for user-generated content — is unlawful. From a logistical perspective, this makes a great deal of sense. If states and cities could enact a variety of conflicting laws, the whole point of Section 230 would be undermined. As a global medium, the internet wouldn’t work if it were subject to piecemeal regulations by every state and city within the US.Hans also points out that the Chicago proposal (which is ~50 pages!) is equally bad:
The other recent proposal, from Chicago, creates similar issues by holding platforms liable for user content. Like the San Francisco proposal, it uses fines as the leverage to require platforms to ensure that listings on a platform have been approved by the city. And, as with the San Francisco proposal, the architecture of the liability structure runs afoul of Section 230’s preemption clause. The problematic language in this legislation, Section 4-13-250, states “It shall be unlawful for any licensee … to list, or permit to be listed, on its platform any short term residential rental that the commissioner has determined is ineligible for listing”; the penalty for violations, in Section 4-13-410, is “a fine of not less than $1,500.00 nor more than $3,000.00 for each offense. Each day that a violation continues shall constitute a separate and distinct offense.” This essentially creates a strict liability regime for website operators based on third-party content: if a user uploads a non-compliant rental listing, the site operator would immediately be in violation of this provision, regardless of whether they were aware of the posting or its ineligible status. No matter what the amount the potential fine is, this imposition of liability clearly contravenes Section 230.Hans doesn't cover the LA law, but it's just as problematic (potentially more problematic!). Like the SF and Chicago bills, the focus is on requiring registration, and then puts liability on the platforms:
Hosting Platform Requirements.Yes, sure, cities are concerned about how Airbnb can impact the way cities are run -- though over and over again we've seen evidence that Airbnb can be super helpful to cities in terms of increasing tourism and opening up new ways for people to earn money. But, if cities want to target questionable practices, they should do so by targeting the actual questionable practices, not by trying to skip around Section 230 and pretending it doesn't exist. I'm sure, as with the state AGs, we may hear city officials whine about how terrible Section 230 is and how it gets in the way of them "protecting citizens" or whatever they're going to claim, but those claims are silly. Section 230 is about properly targeting liability. When you point the liability in the wrong direction -- at platforms -- you reduce innovation and chill useful services. As Hans notes:
(1) Actively prevent, remove and cancel any illegal listings and bookings of short term rentals including where a listing has been offered: without a Home-Sharing registration number; by a Host who has more than one listing in the City of Los Angeles; or, for a rental unit that exceeds 90 days in a calendar year.
Enforcing the laws of a city or state is an important goal, especially when those laws are designed for compliance, safety, and non-discrimination. Yet it is equally important to ensure that the internet remains an open platform for innovation and exchange, which requires ensuring that intermediaries are not held legally responsible for content they did not author. In enacting Section 230, Congress ensured that this value would be the law of the land, and it is important that cities and states abide by superseding federal law.One would hope that the cities in question would recognize the legal problems with their own bills before they decide to move forward on any of them. Otherwise, they're just going to end up wasting a ton of taxpayer money when someone takes these to court, and the cities inevitably lose, just as the states did a few years ago.
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Filed Under: cda 230, chicago, cities, intermediary liability, los angeles, san francisco, section 230, short term rentals
Companies: airbnb
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They are saying, essentially, that if someone takes out a classified ad to provide/sell/buy something in a way the legislators do not like, they ought to be able to hold the newspaper accountable. The real goal the legislators have is to prevent an activity they don't like without obligating the city to do the work. And, of course, the legislators don't want to incur either the expense of dealing with the rental providers individually or the public scrutiny that will result when people start taking their offerings off the market because the city wants individual renters to comply with the mountain of regulations and taxes that they foist on hotels, which most large cities think of as cash cows. They probably also don't want people figuring out that they are carrying water for the hotel industry.
(BTW, I feel bad that the hotel operators have to deal with such nonsense as well. But, the fix for one person's misery is not to make everyone else equally miserable.)
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(BTW, copied and pasted what?)
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The closest thing to your example here would be to hold the landlord of the liquor store accountable rather than the owner of the store.
Nobody here is saying that renting regulations shouldn't apply. It's about who you're holding responsible for violations. It's obviously not difficult to go after each individual poster when you could just target the platform they're posting their ads on. That doesn't make suing and dining the platform more legal... or even "right" in any way.
So, enforcing regulations means you go after the ones who post the illegal content, not the owner of the place they choose to do so.
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Try this, it's easy to understand:
http://www.huffingtonpost.com/mary-anne-franks/section-230-the-lawless-internet_b_4455090 .html
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Re: Airbnb
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city council member : WTF do you mean the company has no board members, no one to fine, no one to hold accountable, just rules that can not be altered ...
https://en.wikipedia.org/wiki/Decentralized_autonomous_organization
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The perfect case
(you can insert comment here that in Techdirt world, section 230 is a one way ratchet of more and more things "protected" along the way).
Discussions on a public chat board would be one thing. Having a chat here about your latest Airbnb rental in Chicago wouldn't be an issue. But Airbnb listing a property that is not permitted as a short term rental should not fall into the same area at all. Airbnb can, should, and must verify that properties are valid and being rented by the owner in compliance with the law. Anything less is a shameful negligence of their basic duties to consumers - and could constitute a form of fraud on the public.
It's not useful to try to compare airbnb to a classified ad service, as they are not only a listing site, but also collect the money and charge a fee for doing so (and you apparently must use their payment system in order to participate. They are defacto partners in the rental process, and thus section 230 should not trump standard business laws. Airbnb may not like it, but they are in many ways a reseller / agent / brand for your individual properties.
For what it's worth, if I book a hotel room through Hotwire and pay them directly, they do in many ways become legally part of the process. If I had a customer service issue, I would take it up with them. They are not just a commissioned agent (like a travel agent in the past) but rather a reseller and wholesale agent.
Section 230 only applies if you buy into Airbnb being an "innocent host" with no financial interest in the rental process and no liability. It's just not legally proven to be that way.
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Re: The perfect case
But oh well.
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An AirBnB "listing" is the creation of a partnership between the company and an individual owner, no different in many ways from say a hotel franchise (say Choice Hotels). While section 230 might protect user comments, it would not appear to protect information related to part of the chain. AirBnB has control over the content (they have to approve a listing) and must enter into a business agreement to list a property. That would normally suggest that they have taken the normal steps to assume that they could enter into a contract to start with.
Section 230 doesn't usurp contract law, does it?
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Re: The perfect case
This is 100% false. You look foolish stating false things, but you've done it for so long perhaps you don't care?
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Re: Re: The perfect case
The company can and does decide what properties are listed, profits from them, and should have completed a background check to assure that the property is legal and can be rented. It's perfectly normal for a city, state, or even a country to have regulations related to this type of rental. It's not a section 230 issue, unless you want to try to claim AirBnB as some sort of chat board.
AirBnB should not be listed anonymously submitted properties. It should not be listing properties it knows are not legal. It should be checking to make sure these properties meet local laws. Failure to do so has nothing to do with free speech or protecting a hosting company.
Sorry, but your short answer is, well, foolish.
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Re: The perfect case
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There are some differences
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Re: There are some differences
However, a number of courts have disagreed when it comes to Ebay, which is a not too-dissimilar service.
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Really, the property owner is the company, and AirBnB is a vendor they've contracted (in some fashion) to facilitate transactions and bookings with their clients/customers. AirBnB isn't responsible for the property owner following applicable laws.
Several hotels I've used, and LOTS of local restaurants, don't manage their bookings themselves, but redirect you to a 3rd party site (e.g. OpenTable.com). AirBnB is not much different, except you start at the AirBnB site instead of the property's site.
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It is not controversial to hold Real Estate agents responsible at least somewhat for their listings, and that obligation would not magically disappear if a Real Estate broker decided to operate solely online.
CDA 230 was not written as a Get out of Jail Free card. If it's illegal to do something on the phone (like set up rentals for unlicensed properties), it's still illegal to do it on the Internet.
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CDA 230 was not written as a Get out of Jail Free card. If it's illegal to do something on the phone (like set up rentals for unlicensed properties), it's still illegal to do it on the Internet.
I would agree, illegal offline is still illegal online, the addition of "on a computer" doesn't change the action, the technology is merely a tool. I just want to make sure the correct parties are blamed for their respective actions (illegal or otherwise).
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The real argument
Liberalism vs. Libertarianism.
AirBnB has saved some travelers some money, and it's made some other people some extra money. AirBnB has also driven up the cost of housing by reducing inventory. And AirBnB is clearly not just a listing or hosting service: they conduct the transaction, provide insurance, and run ad campaigns. Craigslist they are not.
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When an actual crime is committed deal with it otherwise, let the buyer/seller beware.
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In Manhattan, the vast majority of Airbnb rentals are illegal and Airbnb knows full well that they are. The analogy I would draw is an online broker like Fidelity KNOWINGLY providing incorrect stock price information when facilitating a trade. That type of offense would be prosecuted vigorously and so too should Airbnb's profiting from illegal rentals.
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This law could be written without mentioning the internet or content
No speech issue, no CDN issue. It would still allow flat rate ads (no commission or collecting funds) but it would shut the door on airbnb and vrbo. Or did I miss something.
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Re: This law could be written without mentioning the internet or content
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The Real Answer
Here a few weeks ago it was noted that a LEO had subpoened information from 23andMe. The intention being, one assumes to track a DNA match to or from a suspect. And there is no effective way for 23andMe to fight back, except, to have all of the DNA profiles stored somewhere in the world where there are strict data privacy laws. The DNA testing could still be done in the US (or better, Canada) but the data would never be retained.
Same with AirBnB. And there would be very little exposure for airbnb.ca to any US municipality's whinging.
And of course, the lesson never sinks in. This is a parallel to situation to the utility of anonymous Panana corporations.
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Democrats Run All the Cities that Want this regulation
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