Airbnb Claims It Can’t Be Held Responsible For Illegal Rental Listings

Image courtesy of Adam Fagen

Airbnb is suing the city of San Francisco, claiming that a recently approved city ordinance intended to hold the home-rental site more accountable for illegal landlods runs afoul of federal laws that protect website operators from content published by third parties.

In 2015, San Francisco began requiring that residents who rent their homes on Airbnb and other platforms register with the city, and show that they are residing at that property for at least 275 days out of the year. However, fewer than 1-in-5 of San Francisco properties listed on these sites is actually registered.

In an effort to increase registration and compliance with city rules, the San Francisco Board of Administrators recently approved some new rules [PDF] that require Airbnb and similar sites to verify that listings within the city are registered before allowing them to be published to the site.

Additionally, Airbnb would be required to respond to requests from the city to investigate allegations of illegal rental listings in San Francisco. Failure to comply with the new rules could result in financial penalties, and possibly criminal charges, for the site.

The Board unanimously passed the ordinance on June 14. San Francisco Mayor Ed Lee never signed it, meaning it was approved by default on June 24. It will go into effect on July 24 unless Airbnb can get an injunction from the court.

In a lawsuit [PDF] filed yesterday in a federal court in San Francisco, Airbnb argues that the new city ordinances contradict multiple federal laws.

Section 230 of the Communications Decency Act shields website operators from liability for content published by third parties. This is why websites are not responsible for defamatory statements written in comments sections or other user-generated content.

“By requiring Airbnb to verify that each third-party rental listing has a valid registration number prior to posting the listing on their websites, and by imposing criminal and civil penalties for websites’ publishing of unverified third-party listings, the Ordinance violates the CDA,” reads the complaint.

The website also alleges that the ordinance violates the Stored Communications Act, which dictates when and how a company can be forced to disclose electronic records.

According to Airbnb, the city runs afoul of the SCA by requiring that Airbnb turn over names and addresses of rental property hosts before they are even listed on the site.

“[T]he Ordinance squarely conflicts with the SCA, which bars state laws that compel services like Airbnb to release basic customer information to governmental entities without legal process,” argues the lawsuit. “One of Congress’s goals in enacting the SCA was to protect the privacy of customers of electronic communication service providers. The Ordinance directly undermines that objective.”

Finally, Airbnb claims that the city ordinance is violating the company’s First Amendment rights.

“It is a content-based restriction on advertising rental listings, which is speech,” explains Airbnb.
The Ordinance seeks to punish Airbnb for publishing listings that do not comply with San Francisco law. To justify this content-based restriction on speech, the City bears the burden of showing that the Ordinance is narrowly tailored to further a substantial government interest. The City cannot carry this burden because, instead of targeting speech, the City instead could simply enforce its existing short-term rental law directly against hosts who violate it.”

Airbnb is asking the court for an injunction preventing the ordinance from being enforced, and a declaration that the rules can not be enforced because they violate federal laws.

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