Court Not Impressed By Airbnb's Argument Against The City Of San Francisco

from the well,-that's-a-problem dept

Earlier this year, we noted that a bunch of cities were looking to make Airbnb liable for residents in those cities using the platform without following certain city rules. As we noted at the time, this seemed to pretty clearly violate Section 230 of the CDA, which says that platforms cannot be liable for the actions of their users. San Francisco went ahead with such a law anyway, even though it tried to rework it at the last minute to deal with Airbnb's points on why it was illegal. The case ended up in court either way -- and unfortunately, the initial ruling has sided with San Francisco over Airbnb.

Now, I know that for a variety of reasons, there are people who just flat out hate Airbnb and think that it's somehow bad or problematic for cities or rental prices or whatever. I don't think the data supports this, but either way, you should be concerned about the results here. This isn't about whether or not Airbnb is "good" or "bad" for cities. It's about a fundamental principle on which the internet operates -- which has allowed the internet to grow and to thrive, and which has protected free speech on the internet, by not making platforms magically liable for what users say or do. But the court here basically doesn't care about all of that.

The judge tries to carefully parse things out to argue that under this law, Airbnb isn't liable for its users' actions, but its own:

As the text and plain meaning of the Ordinance demonstrate, it in no way treats plaintiffs as the publishers or speakers of the rental listings provided by hosts. It does not regulate what can or cannot be said or posted in the listings. It creates no obligation on plaintiffs’ part to monitor, edit, withdraw or block the content supplied by hosts. To the contrary, as San Francisco has emphasized in its briefs and at oral argument, plaintiffs are perfectly free to publish any listing they get from a host and to collect fees for doing so -- whether the unit is lawfully registered or not -- without threat of prosecution or penalty under the Ordinance.... The Ordinance holds plaintiffs liable only for their own conduct, namely for providing, and collecting a fee for, Booking Services in connection with an unregistered unit.

But that misunderstands both the nature of the platform and the nature of Section 230. First of all, the law absolutely creates an obligation on Airbnb to monitor, withdraw or block the content supplied by hosts -- because if they do not, then they will face significant liability. The idea that it's only targeting Airbnb's "conduct" of booking an unregistered unit is simply incorrect. The platform allows anyone to put up any unit. Not Airbnb. Not only does this new regulation falsely attribute to Airbnb the actions of its users, this judge does too. That's a problem.

We've written a lot about Section 230 over the years, and unfortunately in the last few months a bunch of cases have chipped away at these important protections. In each case, the courts seem to think that the situation in front of them is somehow unique and Section 230 shouldn't apply. Considering how important Section 230 has been to the internet as a whole and the protection of free speech, we should be very, very concerned about so many of these cases picking apart the law and adding serious liability. It won't end well. Hopefully Airbnb appeals this... and the 9th Circuit doesn't muck it up.

Filed Under: cda 230, intermediary liability, liability, san francisco, section 230
Companies: airbnb

Airbnb Goes To Court To Stop San Francisco's New Anti-Airbnb Law

from the section-230 dept

Back in May, we noted that large cities around the country were rushing to put in place anti-Airbnb laws designed to protect large hotel companies. In that post, we noted that many of the bills almost certainly violated Section 230 of the CDA by making the platform provider, Airbnb, liable for users failing to "register" with the city. Section 230, again, says that a platform cannot be held liable for the actions (or inactions) of its users. San Francisco was the first city to get this kind of legislation pushed through. And while the city's legislators insisted that Section 230 didn't apply, they're now going to have to test that theory in court. Airbnb has asked a court for a preliminary injunction blocking the law, based mainly on Section 230, but also mentioning the Stored Communications Act and tossing in a First Amendment argument just in case.

As designed and drafted by the Board of Supervisors, the Ordinance directly conflicts with, and is preempted by, Section 230 of the Communications Decency Act, 47 U.S.C. § 230 (the “CDA”). According to its own sponsors, the law holds “hosting platforms accountable for the hundreds of units (rented by) unscrupulous individuals” posting listings on their websites, and holds “Airbnb Accountable for Listing Illegal Short Term Rentals.” Declaration of Jonathan H. Blavin (“Blavin Decl.”)... As such, the Ordinance unquestionably treats online platforms like Airbnb as the publisher or speaker of third-party content and is completely preempted by the CDA. In addition, the law violates the Stored Communications Act, 18 U.S.C. §§ 2701 et seq. (the “SCA”), by requiring disclosure to the City of customer information without any legal process, and the First Amendment as an impermissible content-based regulation.

As Airbnb points out, the city even recognized that the bill probably runs afoul of Section 230, but signed it into law anyway:

The City was not blind to the fact that the Ordinance might run afoul of the CDA and other laws. Following its passage, the Mayor’s office said that the “mayor remains concerned that this law will not withstand a near-certain legal challenge and will in practice do nothing to aid the city’s registration and enforcement of our short-term rental laws.” ... The City Attorney’s Office acknowledged that the Ordinance could raise “issues under the Communications Decency Act” but claimed that it had been drafted “in a way that minimizes” those issues by regulating “business activities” instead of “content.” ... Despite the City’s best efforts to tiptoe around the CDA through such semantic devices, the problem for the City is that the substance of what the Ordinance seeks to do violates the CDA. No amount of creative drafting can change that reality.

The Stored Communications Act argument involves the requirements of Airbnb to turn over information on its users. The SCA is a part of ECPA, the Electronic Communications Privacy Act, that is supposed to protect the privacy of electronic communications (though, it's in deep need of an update). Here, Airbnb points out that the city ordering it to release customer information almost certainly violates the SCA.

The verification provisions of the Ordinance separately are barred by the SCA. In a futile effort to sidestep the CDA, the Ordinance requires Hosting Platforms to verify listings by disclosing to the City host names and addresses “prior to posting” a listing—and without a subpoena.... But in this failed endeavor to avoid Section 230, the Ordinance runs smack into the SCA, which bars state laws that compel online services like Airbnb to release customer information to governmental entities without legal process.

The First Amendment argument is basically a backstop in case the CDA and SCA arguments fail, and then there's a Constitutional argument to appeal. If the court deals with the case on CDA and SCA grounds, it probably will avoid the First Amendment question altogether. But, the basis is that regulating types of advertisements on Airbnb's platform is a form of a content-based restriction on speech. And there is a strong argument that in restricting the content on the platform, rather than merely punishing the people who post their content to Airbnb, that the law violates the First Amendment. There are exceptions but, generally speaking, the First Amendment doesn't like any law that blocks out speech entirely, even if it's commercial speech.

The Ordinance also violates Hosting Platforms’ First Amendment rights. The prohibition on the publication of certain rental advertisements—i.e., those listings without verified registration numbers—is a content-based speech restriction subject to “heightened judicial scrutiny” under the First Amendment.... The City cannot meet its burden of demonstrating that this speech restriction directly advances a substantial state interest and does so in a narrowly tailored way. Even assuming the Ordinance actually advances a substantial state interest (which is questionable), it places a far greater burden on speech than is necessary to achieve that end. The “normal method of deterring unlawful conduct” is to punish the conduct, rather than prohibit speech or advertising regarding it.... The City cannot show that the obvious alternative of enforcing its existing laws against third-party residents who rent properties in violation of the law, rather than against Hosting Platforms, would be ineffective or inadequate. Just the opposite: it is clear the City could enforce its laws directly against hosts who violate them—as it already has begun to do with increasing effectiveness and success—rather than indirectly against Hosting Platforms that publish listings. Further, the law is unconstitutionally overbroad as it punishes platforms for publishing any listing without complying with its “verification” procedures—including those listings that may be lawful.

Whatever you think of Airbnb (and people seem to get more emotional about it than seems reasonable...), this lawsuit could become quite important in making sure that Section 230 remains strong in protecting internet services providing useful services to individuals. In the past month or so, we've seen a number of questionable Section 230 rulings (especially in California) that have started to chip away at this law. However, I don't see how any of those rulings directly apply to this case. The most direct comparison is probably the Model Mayhem case but, in that case, the court was clear that it allowed the California law requiring the platform to "warn" users to stand in part because it did not require the platform "to remove any user content or otherwise affect how it publishes or monitors such content." That's clearly not the case with this Airbnb law.

Either way, this is a case worth following, and hopefully one where the courts don't lop off another chunk of Section 230's protections (or, for that matter, the SCA's privacy protections).

Separately, there's a very, very bizarre NY Times article about this, falsely claiming that Airbnb is suing over a law it helped pass. That's just wrong. It's really bad reporting. Airbnb is clearly suing over the new language voted in by the SF Board of Supervisors earlier this month, and not the broader law that passed a few years ago.

Filed Under: cda 230, first amendment, intermediary liability, platforms, privacy, san francisco, sca, stored communications act
Companies: airbnb

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.

(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.

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:

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.

Filed Under: cda 230, chicago, cities, intermediary liability, los angeles, san francisco, section 230, short term rentals
Companies: airbnb

Complaint Board Finds Police Officers Violated Policy By Arresting Public Defender Who Demanded They Stop Questioning Her Clients

from the and-not-a-single-officer-was-disciplined dept

More than a year after San Francisco police officers arrested public defender Jami Tillotson for doing her job, the city's Office of Citizen Complaints has issued its report. It clears Tillotson of any wrongdoing and lays the blame solely at the feet of the San Francisco PD.

First, a quick refresher, since we're discussing something that happened last January: Tillotson's clients were approached by police officers in a courthouse hallway. The officers began asking her clients questions and photographing them for a photo array. She inserted herself between the officers and the men and demanded the officers stop questioning them/photographing them without running it through her. The officers responded in the only way they knew how: they arrested her for resisting arrest -- an arrest in which she cooperated fully with no amount of resistance. (It seems like circular reasoning, but "resisting arrest" is a catch-all for other sorts of interference with police work, rather than simply resisting an arrest.)

Thirteen months later, the review board has this to say about the officers' actions.

Police arrested Jami Tillotson without cause in January 2015 and detained her in an "unduly prolonged manner without justification," the Office of Citizen Complaints concluded.

The agency also determined that there was found a policy failure on two allegations: interfering with the right to counsel and conduct reflecting discredit on the department in the case of an officer who made inappropriate comments to the media following the incident.

The report was released by the public defender's office because presumably the SFPD had no plans to. In fact, the police chief -- despite dismissing charges and apologizing to Tillotson -- still insists his officers did nothing wrong.

[H]e stood by the actions of Sgt. Brian Stansbury and the other officers who arrested Tillotson. Stansbury "had reasonable suspicion to take the pictures” and a right to do so in a public area, the chief has said.

Maybe so, but the complaint review board says otherwise. his officers may have had the "reasonable suspicion" to take pictures, but they clearly didn't have the right to continue to do so after being told not to by an officer of the court (the public defender), much less prevent her from doing her job by arresting her.

Filed Under: jami tillotson, public defender, resisting arrest, san francisco, san francisco police, sfpd

San Francisco Legislators Dodging Public Records Requests With Self-Destructing Text Messages

from the 'this-transparency-will-self-destruct-in-5...-4...' dept

You can call it irony. Or bullshit. But what you can't call it is good government. Cory Weinberg of The Information reports San Francisco legislators [warning: paywalled link] are using one of those infamous tools o' terrorism -- messaging service Telegram -- to dodge open records requests. [Link to a non-paywalled story covering the same thing]

In an interview, a San Francisco government staff member said they were encouraged to use the app by colleagues in City Hall who described it as a way to skirt the city’s public records laws. “That is exactly what it’s being used for,” the staff member said. “It’s caught on.”

[...]

April Veneracion, a top aide to Supervisor Jane Kim and a Telegram user, said one reason officials use the app is because it “self destructs.” She also praised the app’s chat room feature that “allows us to be in touch with each other almost instantaneously.”

Yes, messaging apps are great for instant communications. Self-destructing messages, however, are antithetical to public records laws. Also: possibly illegal. Veneracion loves instachat. Keeping up with her obligations to the public? Not so much.

She said she didn’t know if it violated the city or state’s public records laws. “I should find out though!” she wrote in a message.

Unfortunately, those who are on top of public records laws aren't exactly sure either.

San Francisco’s public records law doesn’t address new forms of electronic communication like encrypted or ephemeral messaging apps, but it “has become an ongoing topic of discussion” on the Board of Supervisors’ Sunshine Ordinance Task Force, said the task force’s administrator Victor Young.

Presumably, these discussions are being preserved. (Not that it matters. Most deliberative discussions fall under public records exemptions.)

Whatever the real reason for using self-destructing messages to conduct government business, it's clear those using Telegram really don't want to discuss their actions.

San Francisco supervisor Aaron Peskin, who has been seen by The Information as active on the app, didn’t return requests for comment. One government official said Supervisor Kim also uses Telegram. She didn’t return requests for comment.

Legislators and government employees aren't allowed to choose which laws to comply with any more than the rest of us. (Theoretically...) Communications between government employees that are subject to open records requests need to be carried out on platforms where they can be searched and archived. This means no use of Telegram, just like it means no setting up your own private email server.

The irony, of course, is that legislators are currently discussing encrypted communications (including encryption bans) and how law enforcement can no longer obtain communications they used to be able to grab with a warrant. Meanwhile, their own communications are being withheld from the public record... using encryption and automatic destruction. Perhaps the public needs to start issuing statements about how they used to get all these text messages with public records requests but can't anymore, thanks to the efforts of the government.

Filed Under: city council, encryption, public records, record keeping, san francisco, self-destructing, transparency
Companies: telegram

Police Department Thinks 'Two Bullet Limit' Will Prevent Questionable Shootings

from the you-now-have-two-shots-to-de-escalate-the-situation dept

Two months ago, five San Francisco police officers surrounded a man armed with a knife and shot him 21 times. In response, the police department has introduced reforms meant to keep this sort of "interaction" to a minimum in the future. On the positive side, the reform efforts include training that will hopefully lead to fewer tense situations being resolved by officers emptying their weapons in the direction of their target.

Recruits must attend two-hour classes on de-escalation tactics, which teach how to deal with people in crisis, consider proportional force options, respect the sanctity of life and slow down incidents when possible.

This is undercut, however, by a new policy so completely asinine even I'm against it, despite my theoretical ownership of timcushinghatescops.com.

New pistol training guidelines require police recruits to hear the command "threat" before they fire at targets, to shoot only two rounds at a time, and to stop and reassess threats after every two shots.

In what is likely to be referred to as the "Barney Fife Rule," officers will only be allowed to shoot two bullets at a time, no matter what the situation is.

In some cases, this won't be enough bullets. In far too many cases, this will still be too many bullets. The push towards de-escalation is undermined by a permission slip that says two (2) bullets may be fired per officer (at minimum) even if the situation would be better served by the methods discussed in the mandatory training session officers slept through/mocked/interrupted with logical questions like "the hell is this two-bullet limit?"

In the case of Mario Woods -- who was shot 21 times by five officers -- he'd have only been killed by ten bullets. I suppose this is how the SFPD has chosen to interpret "less-lethal force." On the plus side, surrounding homes/citizens are far less likely to be the recipients of wayward bullets. And it will definitely make it very difficult for any officers pulling a "Brelo" to explain why they unloaded 49 bullets in 30 seconds at a suspect from point-blank range.

What the rule does, unfortunately, is make it more dangerous to be a police officer. In exchange, it does nearly nothing to lessen the danger of being a citizen. Lose-lose. The correct response would be to throw the entire weight of the PD's upper echelon behind de-escalation training.

A two-hour class officers are forced to attend won't make the message stick. What will make it stick are rules that make it explicitly clear that lethal force is a last resort -- something that should be used only very rarely. Any shooting should be accompanied by a raft of paperwork and a full investigation, overseen by an independent review team. The "shoot first and shoot often" mentality is only partly addressed by the two-bullet limit, which itself is illogical, unworkable and -- at worst -- a guaranteed way to avoid additional scrutiny for questionable shootings. After all, if only two bullets were used (and it only takes one to kill/maim someone), then it's a by-the-book shooting that warrants no further examination.

If nothing else, the fact that the policy can so readily be linked to an incompetent law enforcement officer depicted in a Golden Era TV show should have been enough to deter the SFPD from moving forward with the initiative. It should have limited itself to altering the mindset of its officers, rather than giving them a two-bullet "out" that undercuts the department's "will this do?" approach to de-escalation.

Filed Under: de-escalation, police brutality, police violence, san francisco, sfpd, training, two bullets

Airbnb's Tone Deaf Ads Are Absolutely Terrible... But The Proposition They're Protesting Is Worse

from the no-one-looks-good-here dept

So people living in San Francisco went sort of ballistic on the internet yesterday expressing outrage at a bunch of truly tone deaf ads from Airbnb, which were clearly an attempt to push against an upcoming proposition vote in San Francisco (Prop F) that would limit the ability of homeowners to rent out their homes via Airbnb. To start off, let's be clear: these ads are terrible. They're basically all premised on the fact that under existing law, taxes paid by Airbnb users (not Airbnb...) to the city from their rentals equals about $12 million. It's a valid point that Airbnb contributes to the city tax revenue, but the way in which Airbnb decided to demonstrate it simply reeks of entitlement, with each one basically asking for "more" for their $12 million, including from libraries. If you can't read that, it says:

Dear Public Library System,

We hope you use some of the $12 million in hotel taxes to keep the library open later.

Love,
Airbnb

Most of the other ads are based on a similar theme. Julia Carrie Wong at SF Weekly has collected a bunch of images as has Sarah Jeong at Vice's Motherboard (link above). Here are just a few:

@sarahjeong There's one about planting trees at Masonic & Haight. pic.twitter.com/9n8NDfsCvh

— Chris Arvin (@meinhyperspeed) October 22, 2015

@sarahjeong @juliacarriew another @Airbnb sign at Oak and Stanyan directed at SF Recreation and Parks pic.twitter.com/CeVUVHJBY0

— Urvi Nagrani (@theurv) October 22, 2015

@kimmaicutler @gamoid @ashleymayer pic.twitter.com/Wl7bEtHtIH

— Kyle Huey (@khuey_) October 22, 2015

How the who what I can't why pic.twitter.com/LgR4qYNbuG

— Sarah Fine (@fineplanner) October 21, 2015

It's not hard to realize how these ads came about. People who dislike Airbnb have been er... quite vocal in their arguments about how it's destroying the city (and by "destroying" they generally mean "changing.") It's not even clear how much Airbnb is really impacting things, as there are many, many other issues that are creating much bigger problems with housing in San Francisco, but it's not crazy to suggest that Airbnb had at least played some role in the change. Whether or not that kind of change is "good" or "bad" pretty much depends on your own perspective and how it impacts your own life. But, still, given all the hatred raining down on Airbnb, the company quite reasonably felt that it was unfair, given that activity on the platform has contributed in other ways, including city taxes. And that led people to think, "we should highlight the good side of Airbnb," including the taxes. And somewhere around that point, things went off the rails and someone had the awful decision to "highlight" it by acting all entitled about those taxes. When one of the chief criticisms of your startup is that you often act entitled in how you run your business, it's probably not a good idea to post entitled advertisements... especially ones that can be read to be attacking libraries and other public works.

Airbnb, after an initial PR snafu in which it totally didn't realize that people might be offended by such ads, agreed to pull them down. But the raging against Airbnb has continued, and there's at least a decent chance that the campaign has backfired in a massive way, pushing more people to vote for the proposition.

And that's a problem, because as bad as Airbnb's ads are, Prop F is much, much worse. Last month, "Emey" posted a pretty thorough discussion on Medium, walking through the bill and explaining why it's really, really bad. Yes, it's directly targeted at Airbnb, and so Airbnb haters like it. But... they shouldn't. The only parties Prop F really helps are the big hotels. And while I guess some people would like to keep the "tourist element" out of their neighborhoods and apartment buildings, there are lots of other issues with Prop F. A huge concern is the private right of action that allows anyone living within 100 feet of your residence to basically take you to court under accusations that you're violating the law. If you don't think this will be abused by neighbors trying to annoy other neighbors, you haven't witnessed a neighbor dispute gone bad. It happens all too frequently, and giving people another tool to turn a neighbor dispute into a legal fight is a really bad idea.

Airbnb has somewhat exaggerated this private right of action, by claiming that it's about getting neighbors to spy on neighbors, but that's not the really concerning part. It's the legal process that this makes it much easier for neighbors to saddle on other neighbors, even if they're not breaking the law. It's a mess and it will create many more problems between neighbors.

And then there's the separate question of what's so bad about Airbnb. Again, it does have the potential to create some change, but plenty of that change is positive. It helps subsidize the housing of many people who wouldn't otherwise be able to live in big cities. It has enabled many people to start small businesses or side businesses. It has created real competition for terrible hotels. It enables people to better experience new places outside of the traditional "tourist" hotel setup. In my personal experience, Airbnb has been a tremendous benefit to both hosts and travelers. Are there potential downsides? Absolutely. It can contribute to the changing nature of some neighborhoods. Since some people will stay when otherwise they'd be priced out, it can limit housing supply. Same for some landlords who are using properties solely as short-term rental units. But the real problem with that is overall supply restrictions in San Francisco (of which there are many -- and, weirdly enough, the same people protesting Airbnb seem to often be in favor of those other supply restrictions).

So, yes, Airbnb's ad campaign was terrible and tone deaf and reeked of entitlement. But don't support Prop F because of it. Prop F is worse. Much worse.

Filed Under: ads, entitlement, prop f, proposition f, san francisco, short term rentals
Companies: airbnb

3 California Cities Blocking Parking Ticket App For Being, Like, Way Too Useful

from the apps-apps-apps dept

There's an app for just about everything it seems, including apps for parking tickets, apparently. One of these apps, called Fixed, is specifically designed to do several things with parking and/or traffic tickets. When you get a ticket, you take a picture of it with your camera on your phone. From there, the app allows you to automate the process of paying the ticket or disputing it. Specifically, by scanning the picture of the ticket you've taken, the app will automatically scan the ticket for common mistakes that are made that might invalidate the ticket entirely, at which point you can use the app to lodge your dispute. Sounds incredibly useful, right?

Well, three California cities think it's so useful that they've done everything in their power to block people from using it to dispute or pay their tickets, because that's apparently easier than getting officers to simply write tickets correctly.

The startup has had issues with the San Francisco Municipal Transportation Agency (SFMTA) for some time. The agency was never all that receptive to the service, and the way it automated the ticket contesting process for locals. Using its app, Fixed customers could snap a photo of their parking ticket using their phone’s camera, and then Fixed would check against a variety of common errors before writing a customized letter to the city on the user’s behalf. The app also cleverly tapped into Google Street View to check to see if the city had the proper signage in place in the area a ticket was received. However, even when customers didn’t beat their ticket, the app could help automate the payment without having to use a city’s often outdated website.

Of course, the cities haven’t been welcoming to an app that was aimed at helping locals not pay their tickets by automating the process of jumping through legal loopholes. When Fixed began faxing its submissions to SFMTA last year, the agency emailed the startup to stop using their fax machine. When Fixed pointed out that it was legal to do so, the agency simply shut off their fax.

Keep it classy, San Francisco. It turns out that Los Angeles and Oakland all behaved similarly with respect to Fixed, harrassing and blocking the app and the people using it to the point where the makers of the app simply shut down the parking ticket part of the software in those three cities. This despite the app successfully contesting something like a third of the tickets that users had chosen to dispute using it. Drink that in for a moment. A sizeable percentage of parking tickets were found to have errors on them using this app and, rather than address this by having tickets be properly filled out, the cities in question decided instead to keep people from using the app to contest these error-ridden tickets. It's hard to imagine how a city might be able to display more contempt for its own citizens than this.

And what's really crazy about this? The app had as much to do with getting people to pay their valid tickets on time as it did contesting the incorrectly filled out tickets.

“It’s unfortunate that the SFMTA decided to block our service. Over 60,000 parking tickets had been submitted to Fixed. Not only were we helping people beat their unfair parking tickets, but the alerts on our app were helping people pay their parking fines on time and avoid late fees,” [Founder David Hegarty] continues. “Parking Ticket Fines account for 15% of the SFMTA operating budget, and it looks like they objected to us providing some accountability to their process,” Hegarty adds.

Hmm, it's almost like the city knows it's collecting money it might not deserve and doesn't want to let a simple piece of technology stop that gravy train...

Filed Under: apps, los angeles, oakland, parking tickets, san francisco, sfmta
Companies: fixed

Cops Arrest Public Defender For Attempting To Do Her Job

from the you-have-too-many-rights,-brother.-let-me-ease-your-burden-by-taking-a-few. dept

Due process? In this "justice" system? It is to LOL.

A San Francisco deputy public defender was handcuffed and arrested at the Hall of Justice after she objected to city police officers questioning her client outside a courtroom…

Here's the video:


The two responses gathered by SFGate show the divide between those who represent the accused and those who haul inconvenient people away so they can continue their "work" unimpeded.

...an incident that her office called outrageous and police officials defended as appropriate.

The public defender, Jami Tillotson, was charged with the one-size-fits-all-who-give-us-any-lip crime of "resisting arrest." This charge doesn't work the way people expect it would, much to their anger, dismay and surprise. One would think that the police would need to be arresting you for a different crime and, after encountering some resistance, add "resisting arrest" to the charges. But no, apparently "resisting arrest" simply means not doing what cops say to do, no matter the legality of the request.

Tillotson was representing her client in a misdemeanor theft case. The police wanted to chat with him about an unrelated case in which he was "a person of interest." Presumably the photo-taking was part of building a lineup.

Now, the Sixth Amendment only guarantees the right to an attorney during criminal prosecution. But being a "person of interest" presents its own problems, what with it usually leading to questioning centered on gathering incriminating evidence -- either against the person being questioned or someone else on the list of suspects.

As an American citizen, you can always refuse to answer questions, especially when you're not in custody. Easier said than done, though, which is why the option of referring law enforcement to a lawyer is always on the table. Of course, police officers will try to avoid this possiblity, usually by framing the questioning as an innocuous, purely voluntary chat. They get irritated, though, when people realize this and tell them to talk to their lawyer or continually ask if they're free to go.

So, while Tillotson's attempt to defend her client from questioning related to a different crime may not have fallen under guaranteed Sixth Amendment protections, her willingness to protect her client from additional police questioning certainly falls within the bounds of what she (and her client) are legally allowed to do in a situation like this (i.e., "Talk to my lawyer.")

But the police weren't interested in speaking to a lawyer. They wanted to take pictures and ask questions without the "interference" of someone who knew how the system works. So, they arrested her for resisting arrest -- which, as the video shows, she was very clearly NOT DOING BEFORE, AFTER OR DURING THE ARREST.

Tillotson objected to the arrest, but she placed her hands behind her back and allowed police to cuff her. She never struggled or otherwise impeded the officers in their duty -- which was [WARNING: circular reasoning ahead] TO ARREST HER FOR RESISTING ARREST.

It's a mindbending, oxymoronic, ugly display of force, where might = right and anyone standing in the way of an investigation needs to GTFO. With cuffs.

Here's how Gideon at A Public Defender sums up this incident:

It’s one thing for officers to get their way by removing civilians from the scene who object to their searches and seizures, but it takes quite another level of totalitarianism and disregard for the law to arrest and make absent an officer of the court.

Even the law prof [Is it impossible to get quotes from actual lawyers with "in the trenches" experience? Are there really that few of them?] quoted by SFGate -- who believes Tillotson erred by inserting herself between police and their "person of interest" -- had this to say about the PD's actions.

[Hadar Aviram] added, “Regardless of where the constitutional disposition is, the attorney was in no way being violent or resisting arrest or being disruptive in any way. It’s extreme and it’s bad press for (the police). I’m surprised.”

I'm not. Many officers -- far too many -- simply don't care what the public thinks of them or their actions. The detective captured here on video is among that number.

Filed Under: arrest, jami tillotson, police, public defender, resisting arrest, san francisco, sfpd

Airbnb Competitor Sues San Francisco For Making New 'Legalize Airbnb' Law Too Restricted To Airbnb

from the interesting-legal-theories dept

We've reported a bunch of times on the various legal fights that Airbnb has had to go through lately. Just a few weeks ago, NY's Attorney General Eric Schneiderman (who has admitted in the past that his interest in Airbnb is really about protecting NYC's big hotels), said that he believed most Airbnb listings in NY to be illegal. Under his standards, every Airbnb I've stayed at in NYC would almost certainly be illegal, despite the fact that I have had nothing but fantastic experiences with Airbnb in NYC (much better than my experiences with hotels). San Francisco seemed to be going in a different direction, however, with the city passing a new law just last week that effectively legalized many Airbnb rentals. This law was actually fought by so-called "housing interests" in San Francisco (who seem to have some trouble understanding basic economics).

So you might assume that any legal challenge to the law would come from those "housing interests." Instead, however, it's Airbnb's biggest competitor, HomeAway, perhaps best known for its VRBO site (unofficial motto: "we were Airbnb before Airbnb, dammit"). HomeAway is arguing that the various restrictions that San Francisco put in this new law to appease those "housing interests" are actually unconstitutional in that it unfairly enables Airbnb's particular business model, while limiting HomeAway's. The key issue: many of the people who use HomeAway use it to rent out second homes, while the new law targets short-term rentals of primary residences only.

How could that possibly be illegal? Well, that's where you have to dive into the convoluted legal argument of HomeAway, which argues that this new law violates the Commerce Clause of the Constitution by "discriminating against interstate commerce" because there's "differential treatment" between SF-based residents and non-California residents.

The Ordinance violates the Commerce Clause because it discriminates against interstate commerce through differential treatment of San Francisco-based and non-San Francisco-based interests that benefits the former and burdens the latter. This unconstitutional discrimination takes two forms. First, by its express terms, the Ordinance allows only permanent San Francisco residents to rent out on a short-term basis (which the Ordinance defines as thirty days or less) residential property they own or lease in San Francisco. Non-permanent residents of San Francisco who own or lease property in San Francisco are barred on the face of the Ordinance from renting out their property on a short-term basis. Second, the Ordinance requires entities that provide “Hosting Platforms,” on which owners and lessees of property may advertise their property for short-term rentals, to conform their business operations in San Francisco to one particular model, and no other, under pain of monetary penalties. This anti-competitive measure forces those seeking to rent property to turn over control of selecting short-term tenants to entities that operate the type of Hosting Platform model sanctioned by the Ordinance and to pay whatever fees those entities might charge today or in the future. While facially neutral, the Ordinance’s Hosting Platform rules have the purpose and effect of discriminating against non-San Francisco-based interests.

This seems like a massive longshot.

Admittedly, many of the restrictions in the law do seem silly and pointless. It seems reasonable to let people rent out their homes for short-term rentals whether or not it's their primary residence. But to sue the city of the law? And, it seems worth noting that it's not clear that anyone was seriously enforcing the existing law (which is why Airbnb has been so successful), and even with this law in place, it's not clear that anyone would be enforcing it against VRBO owners. Still, it's interesting to see the kinds of legal fights these new kinds of services are facing from all angles these days. It's hard to innovate without a legal team, apparently.

Filed Under: commerce clause, interstate commerce, san francisco, sharing economy, short term rentals
Companies: airbnb, homeaway, vrbo