Hotel Lobbyists Push Forward Their Plan To Kill The Internet Because They Hate Competing Against Airbnb

from the come-on dept

In the midst of this "techlash" atmosphere, it seems that basically every industry whose business models have been upended by competition brought about by the internet is now cynically using the anger directed at successful internet companies as an opportunity to kneecap the wider internet. We've recently pointed out that many of the efforts to undermine Section 230 of the CDA (the law that makes much of the good parts of the internet possible) are actually being pushed by Hollywood out of frustration that they're no longer able to maintain their monopoly rents in a gatekeeper business. Similarly, the big telcos have been using this opportunity to pull a "but look over there!" to point at the big internet companies, while trying to distract from the much greater privacy violations they regularly engage in.

Not to be left out, it appears the hotels are now making a major push to attack the internet, because they're sick of competing against Airbnb. This is no surprise. Two years ago, we wrote how the hotel industry had mapped out a secret plan (which was leaked to the NY Times) to kneecap Airbnb through bogus litigation and getting friendly politicians to help them attack the company. Sometimes politicians were more obvious than others about helping the hotel industry out in this plan, like the time that (now disgraced) former NY Attorney General Eric Schneiderman flat out admitted that he was attacking Airbnb to protect local hotels from competition.

As we noted a few weeks ago, a former top hotel exec, Ed Case, got elected to Congress last year. Case was actually on the board of the hotel industry's main lobbying group, the American Hotel & Lodging Association (AHLA). We wrote that he was planning to introduce a bill to undermine Section 230 at the behest of his former employers. On Monday of this week, he did exactly that with a press release that quotes the AHLA (leaving out that until just recently, Case was on the board of that organization (corruption? what corruption?)). The bill, H.R.4232 or the Protecting Local Authority and Neighborhoods Act (PLAN Act), would amend Section 230 to make it clear that it does not apply to Airbnb. Literally, that's the entire point of the law.

Case's explanation of the bill is hilariously misleading:

His “Protecting Local Authority and Neighborhoods” (PLAN) Act would end abusive litigation by Internet-based short-term rental platforms like AirBnb, HomeAway, VRBO, Flipkey, and others attempting to avoid accountability for profiting from illegal rentals.

Note what he's saying? It's about "ending abusive litigation." What?!? The "abusive litigation" is merely Airbnb asking courts to say that Section 230 means that they -- as an internet platform -- shouldn't be liable for the postings of individuals users if those users violate local city and state laws (exactly what Section 230 was designed to do). Cities and states are free to pass whatever laws they want regarding short-term rentals. But they shouldn't be able to pin liability on 3rd party platforms just because local officials don't want to bother to enforce their own laws. But Case's description of the law flips all of this on its head, and suggests that Airbnb's attempt to have liability properly applied to those violating the law... is "abusive litigation."

And, of course, he leaves out that courts right now appear to already believe that Section 230 doesn't protect Airbnb in such situations (which I think is an obvious misreading of the law, but...).

The AHLA quote on this is even more ridiculous.

The national organization of the AHLA also released a statement in support. “For too long, these Big Tech short-term rental platforms have been hiding behind this antiquated law in order to bully and threaten legal action against local elected officials who are simply trying to protect their residents from illegal rentals that are destroying neighborhoods and access to affordable housing,” said Chip Rogers, President and CEO of the national American Hotel & Lodging Association. “These Big Tech rental platforms are invoking a loophole in a federal law to snub their noses at local government leaders across the country, while continuing to profit from illegal business transactions.”

Get that? It's an "antiquated law" and they're "invoking a loophole." Neither is accurate. Section 230 is about the proper allocation of liability. You don't blame the tool for what the user does with it -- but that's what many of these laws are designed to do.

Either way, the AHLA is going full-court press on this. And they're not just focused on pushing this loophole for Airbnb. It appears they're going all in on stripping Section 230 protections from any internet service hosting 3rd party content. As part of this, they recently released what can only be described as a push poll to mislead people about Airbnb, the laws around these issues, and Section 230. Each question in the poll is at best actively misleading and at worst, completely bullshit.

The poll was designed, not surprisingly, to get people to "vote" for the position the hotel industry wants. So the questions are phrased in a manner such that I'm almost surprised they didn't get 100% of people supporting their campaign.

If Airbnb is making a profit from short-term rentals on its site, Airbnb should ensure the owner renting the property is following the local laws and safety requirements.

If you're not familiar with the nuances here, you're probably going to say you agree with that statement. But it leaves out what that means. How is Airbnb supposed to know whether or not the homeowners are following every local law that impacts them? If the homeowners are violating local laws, isn't that up to local officials to enforce, and not Airbnb? Should DoorDash be required to police whether or not the restaurants that use it for delivery are complying with local health laws? Or, more directly, should AHLA hotels be required to police whether or not any of their customers do anything illegal inside their hotel rooms? Because that's basically what AHLA is asking for here. If a drug deal or prostitution happens inside an AHLA hotel, should that hotel be held legally liable?

Airbnb should be required to remove rental listings from its website that are classified as illegal or banned by local government laws.

Again, that sounds good, but leaves out this: how the fuck does Airbnb know whether or not certain listings are "illegal"? Isn't that, again, up to local officials to enforce? The AHLA ignores all of that and pretends that it's somehow obvious which listings are legal and which are not. So, once again, should AHLA hotels be required to stop any activities in its members' hotels that is "classified as illegal or banned by local government laws"? I'm sure the AHLA would say that's impossible because they don't know what's happening in those rooms. Well, that's the fucking point. Airbnb doesn't know whether or not these listings do everything to comply with local laws. That's on the people doing the listings and the local enforcement officials.

From there, there are a bunch of questions not targeting AIrbnb specifically, but the wider premise of CDA 230:

The Communications Decency Act should be amended to remove potential loopholes, that allow Internet companies to profit off illegal activity on their web sites.

Uh, yikes. Again, this assumes that it's somehow obvious what is "illegal activity." This "amendment" would basically kill the open internet. Because the risk of liability here would be huge. How could any company that allows 3rd party speech know whether any content violates any laws? That's insane, and completely goes against the entire point of Section 230.

The Communications Decency Act should be amended to make it clear that web sites are accountable for removing illegal products or services.

Again, this assumes, incorrectly, that there's some sort of obvious "illegal products or services." These things don't show up with a flag -- just as someone checking into an AHLA member hotel to do a drug deal doesn't wear a giant sign over their head announcing the same.

Honestly, the funniest thing about the push poll is that the question that got the least amount of support was the one that has nothing to do with the internet and Section 230, but rather is just a "hey, don't you just hate Airbnb" type question -- and that got the least support:

Short-term rentals are depleting housing options for local residents and increasing the cost to rent or own a home. Short-term rental sites should comply with local laws protecting housing for permanent residents.

People tend to like Airbnb. It provides a better service, often at a lower price. Hotels tend to offer pretty bad services at inflated prices. And again, this whole line of questioning completely misrepresents the point. If local officials want to undermine tourism and business travel in their regions -- that's their decision, no matter how short-sighted. But they shouldn't be able to force a company into policing their laws just because local officials are too lazy to do so.

Filed Under: cda 230, competition, ed case, hotels, intermediary liability, push poll, section 230, short term rentals
Companies: ahla, airbnb

Former Hotel Exec Gets Elected To Congress, Decides First Order Of Business Is To Destroy Airbnb

from the really,-now? dept

Ed Case represents Hawaii's 1st district in Congress. He was just elected in 2018, though he actually was in Congress once before, when he represented Hawaii's 2nd district from 2002 to 2007. He left Congress last time to run for the Senate, but that flopped. And he lost another attempt at rejoining Congress in 2010. In 2013 he announced that he was joining a Hawaii-based hotel operator, Outrigger Enterprises Group, as Senior Vice President and Chief Legal Officer. At the time, he said that doing so "likely ends any further political career." In 2016, he joined the board of directors of the American Hotel & Lodging Association, a large hotel trade group. AHLA has been among the leading hotel industry groups pushing to kill Airbnb. The hotel industry, as a whole, seems to have spent much of the last decade looking for any possible way to attack and kill Airbnb rather than improve its own products.

And now Case is back in Congress -- and apparently an early order of business is to continue to push for AHLA and his former employer's goals. As sent to me by a few people, Case has sent a letter around to his House colleagues, asking them to support and cosponsor a new bill that he has not yet released, that would strip Section 230 protections from any short-term rental platform like Airbnb:

Dear Colleague:

Is your community one of a multitude throughout our country suffering from the negative effects of illegal vacation rentals? Effects that include unavailability of affordable housing, avoidance of standard consumer protections and loss of state and local government revenue?

If so, please join me as an original cosponsor of the Protecting Local Authority and Neighborhoods (PLAN) Act. This bill would end abusive litigation by internet-based short-term rental platforms attempting to avoid accountability for profiting from illegal rentals and strike down local regulations aimed at curbing this illegal activity and its widespread negative impacts.

Over the past decade-plus, the short-term vacation rental industry has exploded through the internet-based marketing platforms of Airbnb, HomeAway, VRBO, Flipkey and others. While some communities welcome this activity, which is largely conducted in residential neighborhoods, many others are concerned with several negative consequences.

These include the loss of affordable housing as residential units are converted to transient accommodations for tourists, and the failure of many unit owners and rental operators to comply with basic consumer safety, public accommodations and tax requirements as must the legal lodging industry. A survey of related news also makes clear that commercial lodging activity in otherwise residential neighborhoods gives rise to serious community safety and disruption issues.

As a result, from Hawai‘i to Maine state and local governments are updating their land use laws to put parameters around short-term rental activity, tailored to reflect local concerns and as always has been the case with land use regulation. However, the short-term rental online platforms have repeatedly gone to court to strike down these laws, claiming Section 230 of the federal Communications Decency Act (CDA 230) preempts local efforts to stop the listing and booking of illegal rentals by these platforms. They have sued cities large and small – including New York City, Boston, Miami, Anaheim, San Francisco, Portland, Ore., Chicago, Miami Beach, Palm Beach and Santa Monica – to protect a business model they know relies in large part on concealing the illegal activity of their third-party operators.

The PLAN Act would amend CDA 230 to make clear the statute does not shield platforms when they facilitate illegal rental bookings. Platforms would also be accountable if they fail to stop booking rentals after receiving notice from a private property owner that short-term rentals are prohibited at that location.

This is a narrow, targeted change to the statute to ensure short-term rental companies and internet platforms comply with state and local planning, zoning, rental, labor and tax laws and end their abusive stretching of CDA 230’s original intent. State attorneys general, mayors, and local officials have called for similar updates to CDA 230 to enable them to uphold their local laws and protect citizens living and working in their communities.

This is yet another attack on Section 230. As we've discussed in the past, Section 230 absolutely should protect these businesses -- even as the 9th Circuit has ruled the other way -- because it's a classic Section 230 issue, in which city governments are holding platforms liable for the speech of their users. If cities want to limit small, local businesses and block short-term rentals, that's their business -- but they shouldn't get to leverage sites like Airbnb to be their enforcers (which is all these laws really do).

But it's seems highly questionable for Case to go from being an exec at a hotel company and a board member of the big hotel trade group (that has long attacked Airbnb and similar sites) to wasting little time in Congress to push for a law that directly helps his former employers. I'm sure he truly believes that this is the right thing to do, but it certainly stinks of the kind of "soft corruption" that makes people not trust their government at all. It's not illegal, but it sure looks sketchy. Case has done other good things in Congress, including trying to get the intelligence community to pay attention to basic civil liberties (which sure would be nice). But this new plan to modify Section 230 to help his former colleagues is not that.

Filed Under: cda 230, congress, ed case, hawaii, hotels, section 230, short term rentals, vacation rentals
Companies: ahla, airbnb, outrigger