NY Legislature Rushes Anti-Airbnb Legislation; Likely In Violation Of Federal Law

from the states-still-learning-230 dept

A few weeks ago, we wrote about how legislators in various cities (mainly SF, Chicago and LA) were trying to push through anti-Airbnb legislation that would require homeowners doing short term rentals to register with the city -- and which would hold the platform (Airbnb) liable if its users failed to do so. As we noted, that almost certainly violates Section 230 of the CDA, which bars any law that attempts to hold a platform liable for the actions of its users. At least in San Francisco, the Board of Supervisors ignored all of this with a city attorney claiming (incorrectly) that since it regulates "business activities of platforms," it's not regulating the content on those platforms. That's an... interesting dodge on the Section 230 issues. It seems unlikely to hold up in court, but California's been especially wacky on CDA 230 lately. The SF legislation has since passed, and it will be interesting to see if anyone (i.e., Airbnb) decides to challenge it in court.

Meanwhile, over in NY state, it seems that they're bringing out an even bigger and more clueless anti-Airbnb sledgehammer. It's a proposed bill that would bar Airbnb using homeowners from "advertising" short term rentals of their properties. They put it in SCREAMY LETTERS mixed with legalese:
PROHIBITING ADVERTISING THAT PROMOTES THE USE OF DWELLING UNITS IN A CLASS A MULTIPLE DWELLING FOR OTHER THAN PERMANENT RESIDENCE PURPOSES. IT SHALL BE UNLAWFUL TO ADVERTISE OCCUPANCY OR USE OF DWELLING UNITS IN A CLASS A MULTIPLE DWELLING FOR OCCUPANCY THAT WOULD VIOLATE SUBDIVISION EIGHT OF SECTION FOUR OF THIS CHAPTER DEFINING A "CLASS A" MULTIPLE DWELLING AS A MULTIPLE DWELLING THAT IS OCCUPIED FOR PERMANENT RESIDENCE PURPOSES.
Basically: you can't use Airbnb to rent out your home for a short period of time and make some extra money because NY legislators don't want to upset the hotel business. Violating the law for Airbnb users can lead to increasing fines ($1,000 for first offense, $5,000 for a second and $7,000 for each additional violation). While a quick reading of the bill appears to focus on the homeowners, it can also be read to apply to Airbnb itself. Because the definition of "advertise" includes any "WEBSITES" that are "INTENDED OR USED TO INDUCE, ENCOURAGE OR PERSUADE THE PUBLIC TO ENTER INTO A CONTRACT FOR GOODS AND/OR SERVICES." (Sorry for the screamies, which are in the original).

Apparently, NY legislators are rushing this bill through. The fact that it can go after Airbnb almost certainly violates Section 230 yet again, but a bigger deal is just how ridiculous this is for anyone in NY who wants to make use of Airbnb. Airbnb is a very useful platform for both homeowners and travelers. It's helpful for the tourism industry and creates a bunch of benefits. It's not perfect, but this kind of bill would effectively kill off a lot of the usefulness of Airbnb. And for what? The message the NY legislature would be sending is "innovation is not welcome in NY." As Julie Samuels wrote in the NY Daily News:
But rather than making it easier to bring this home-sharing consensus to New York and preserve the innovative possibilities in the sharing economy, the legislation in Albany threatens to foreclose productive conversations about a comprehensive regulatory environment for startups like Airbnb. Episodes like these — where New York’s leaders risk signaling that they are not interested in listening to what tech companies have to say — are precisely the kind of stories that loom large in the minds of entrepreneurs and hurt job growth.

What’s worse is that this bill does nothing to address legitimate concerns about home-sharing, or to support tech companies’ efforts to crack down on illegal hotel operators who seek to remove housing from the market. Instead, it sets a bullseye on thousands of middle-class New Yorkers by imposing fines of up to $7,500 for advertising their homes on networks such as Airbnb’s.
It's amazing how often politicians seem to want to attack, rather than nurture innovation that's helping their constituents.
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Filed Under: advertising, cda 230, intermediary liability, new york, section 230, short term rentals, temporary housing
Companies: airbnb


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  • icon
    That One Guy (profile), 20 Jun 2016 @ 2:57pm

    Silver lining?

    On the one hand, being forced to pay out the nose for a 'proper' hotel means people are less likely to visit NY.

    On the other hand, less people visiting NY.

    Kinda breaks even I'd say.

    reply to this | link to this | view in chronology ]

  • identicon
    Personanongrata, 20 Jun 2016 @ 4:48pm

    If Think NYS Being Anti-Airbnb is Bad.....

    NY Legislature Rushes Anti-Airbnb Legislation; Likely In Violation Of Federal Law


    Have you heard about this -- NYS governor (Andrew M Cuomo) signing a unconstitutional executive order thus circumventing public debate in the assembly/senate and denying 19 million NY'ers (business owners and not) their wholly protected political speech in an act of treasonous political genuflection to a foreign government (Israel)?

    We'll, on Sunday 5Jun16, governor-on-bended-knee, Cuomo did exactly that he signed:

    NY Executive Order No. 157 DIRECTING STATE AGENCIES AND AUTHORITIES TO DIVEST PUBLIC FUNDS SUPPORTING BDS CAMPAIGN AGAINST ISRAEL

    https://www.governor.ny.gov/news/governor-cuomo-signs-first-nation-executive-order-directing-d ivestment-public-funds-supporting

    Meet Andy Cuomo -- tyrant of NYS. With the stroke of his pen and acting in concert with a foreign government, he single handedly has attempted to silence 19 million New Yorker's political voices.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 20 Jun 2016 @ 6:56pm

      Re: If Think NYS Being Anti-Airbnb is Bad.....

      Would you mind providing specific examples of how the order silences 19 million New Yorker's political voices?

      19 million would be the sum total of people living in New York state. I suspect that the majority of those people neither know about, nor care either way about, the BDS movement.

      Having disposed of some of your hysteria, you do have a point: that government bodies would be discriminating against *businesses and institutions* that support the BDS movement, which yes, would be in violation of 1st amendment rights of those affected based solely upon protected freedom of expression. Individuals? Not so much.

      Do try to get it right, will you?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 20 Jun 2016 @ 7:29pm

      Re: If Think NYS Being Anti-Airbnb is Bad.....

      Have you heard about the actual topic at hand? No? Well then piss off.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 20 Jun 2016 @ 8:25pm

      Re: If Think NYS Being Anti-Airbnb is Bad.....

      Let me see if I have this right (Disclaimer: I'm solely going off of the text of the executive order)

      Certain companies may not like how Israel is acting, so those companies are boycotting Israel.

      The governor doesn't like that those companies are boycotting Israel, so he issued an order for New York to... boycott the boycotters?

      So if other people or companies don't like that New York is boycotting the boycotters, I guess they could always boycott the boycott of the boycott?

      Boycott-ception?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Jun 2016 @ 5:07pm

    "It's amazing how often politicians seem to want to attack, rather than nurture innovation that's helping their constituents."

    change is scary :(
    i am scared :( :( :(

    reply to this | link to this | view in chronology ]

  • icon
    Whatever (profile), 20 Jun 2016 @ 5:31pm

    230 ain't a trump card (no pun intended)

    Besides the derision aimed at the legislation because someone dared to use capitals in the text, the main gist of the story is that "section 230 covers that". It's an easy answer, but one that is likely wrong.

    You have to start by differentiating the players. AirBNB and the like do have websites and they do have information on them. They also are the reseller, they collect the money and fees, and they pay the property owner. They are effectively business partners along with the property owner.

    So what appears on their website as information about a property may not be able to hide behind section 230 for the simple reason that it's not third party information, but in no small part first party data provided by the website owner. It's not a random posting, it's their business.

    Now, NY might have a harder time working against paid or free classified ads posted on sites like Craiglist. As the site has not a business partner (just a service provider) they might find that Section 230 covers those posts. However, they might be different if they intentionally create a section called "NY Daily rental properties", which might be something the state could move against, as it would show the site encouraging such activities. That is one of the grey areas of section 230.

    "It's amazing how often politicians seem to want to attack, rather than nurture innovation that's helping their constituents."

    It's not amazing. The hotel industry generates jobs and taxes in no small amount, as approximately 10% of the turnover of hotels and legal places of lodging end up in the state or local coffers. When you (a) dramatically lower the rates, (b) have a significant percentage of the transaction go to another state (tax free), and (c) potentially have a property owner not reporting the income then the state is a big loser. It's not about stopping innovation, it's about stopping the tax base from eroding.

    It's nice to try to frame it as "they hate innovation", but that's far from the case. They just hate losing money.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Jun 2016 @ 7:21pm

    "It's amazing how often politicians seem to want to attack, rather than nurture innovation that's helping their constituents."

    I'm pretty sure the businesses that give money to political campaigns are regarded as constituents... At least to the politicians anyway

    reply to this | link to this | view in chronology ]

  • icon
    techflaws (profile), 20 Jun 2016 @ 8:55pm

    You completely forgot the most ridiculous fear mongering done in defense of the legislation by Assemblywoman Linda Rosenthal:

    “You should know who your neighbor is and what happens when people rent out their apartments on Airbnb is you get strangers. Every night there could be different person sleeping in the next apartment and it shatters that sense of community in the building. It also can be dangerous.”

    reply to this | link to this | view in chronology ]

  • identicon
    bob, 20 Jun 2016 @ 10:49pm

    ain't got the wads to pay the shods.

    It's amazing how often politicians seem to want to attack, rather than nurture innovation that's helping their constituents

    Regular homeowners don't pay the political bills, lobbyists and big companies pay the bills.

    reply to this | link to this | view in chronology ]

  • icon
    Avatar28 (profile), 21 Jun 2016 @ 7:18am

    I think this only applies to apartments

    Hard to say for certain but the verbiage, "...DEFINING A "CLASS A" MULTIPLE DWELLING AS A MULTIPLE DWELLING THAT IS OCCUPIED FOR PERMANENT RESIDENCE PURPOSES..." would suggest that houses would be excluded and this would only apply to apartment buildings. People who live in a house would still be free to rent it out. Not that it makes it a whole lot better but best to be accurate if you want your arguments to be taken seriously.

    reply to this | link to this | view in chronology ]

  • identicon
    Mr. Robinson, 21 Jun 2016 @ 7:57am

    Que Eddie Murphy as Mr. Robinson on SNL:

    "Boys and girls, the gubbamint be needin' to protect Mr. Landlords dat pay dem campaign contributions. Can you say scumbags?"

    reply to this | link to this | view in chronology ]

  • identicon
    michael, 21 Jun 2016 @ 1:06pm

    "innovation" we don't need

    I live in a historic neighborhood in Las Vegas populated mostly by retirees. One neighbor decided he was going to turn his otherwise vacant house into a short-term rental via Airbnb.

    The result was exactly what you'd expect: It became a party house with constant loud music all night, every night, and neighbors' houses being robbed and vandalized.

    Fortunately the community came together and put a halt to the nonsense, and the homeowner was forbidden from any more short-term renting (by the City Council, since there is no HOA here).

    The "sharing economy" is great, until some a-hole decides to abuse it to make a buck. Airbnb is fine if you live in the ghetto; it's less fine in a nice area.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 21 Jun 2016 @ 3:24pm

      Re: "innovation" we don't need

      That's got nothing to do with Airbnb and everything to do with the homeowner. Blame should go where it's due.

      reply to this | link to this | view in chronology ]

  • identicon
    Andrew D. Todd, 21 Jun 2016 @ 3:09pm

    Even A Slum Has Its Rights

    A standard, off-the-shelf lease which you get in a legal stationary store will have certain clauses: no sublet, tenant responsible for behavior of guests, no drugs, often no firearms, etc. A reasonable amount of due diligence would disqualify most aspiring AirBnB landlords. Much the same applies for condominiums and co/ops. AirBnB knows all of this in aggregate, if not in each particular case. Their position amounts to a "don't-ask-don't-tell" approach to receiving stolen goods.

    As Jane Jacobs put it: "No one can keep open house in a city." There are always mechanisms to ensure that the people in the stairwell are known and trusted. I lived in inner-city Philadelphia, on the verges of the ghetto, for four years, twenty years ago. I perforce became intimate with my neighbors, and was obliged to worry about their welfare. The little community of the apartment building was like a platoon in a war zone. I didn't ask to be the lieutenant, but circumstances made me such. If not me, then who? The landlord? Well, he was dying of AIDS, though we didn't know that at the time, and in any case, he was a right slumlord. A building down the street from me was burned out, with a couple of people killed, because one of the tenants turned out to be a mentally ill firebug. I understand what Assemblywoman Linda Rosenthal is talking about. You can't close ranks very well with interchangeable strangers.

    Oddly enough, after the landlord died, and the building was put up for sale, a local Chinese shopkeeper made me an offer, that he would buy the building if I liked. He had not seen the inside of the building, but, when a snowstorm dropped a couple of feet of snow on everything, I had done what was necessary about digging out. By and by large, the city simply gave up in the face of the snowstorm. It declared an emergency, and nonessential personnel stayed home. The mail stopped being delivered every day. Deliveries to the little grocery stores at the street corners became erratic. I took my shovels, those I had bought for the building with my own money, heavy workman-grade shovels, capable of being used like an axe at need, and I began digging my way to the street, levering blocks of ice loose and violently flinging them aside. Having reached the street, I started to work along the sidewalk Digging out from a storm is necessarily a collective enterprise. The first person to dig out his own walks, goes around and helps neighbors, in order to form continuous walks leading to the shops, tram stops, etc. I eventually wound up about two blocks from home, clearing snow and ice in front of the local Catholic parish church. Lest you exagerate my piety, I should add that it was also on the route to my favorite pizza parlor. At any rate, the shopkeeper had formed an estimate of my character from my shoveling. I had to tell him that I was planning to leave Philadelphia, and was not free to enter into the proposed alliance.

    How are the local enthusiasts of AirBnB at chopping ice?

    reply to this | link to this | view in chronology ]


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