Airbnb, Homeaway, And The Importance Of Holding The Line On Section 230

from the back-to-basics dept

SESTA has done enormous damage to the critical protection Section 230 affords platforms – and by extension all the Internet speech and online services they facilitate. But it's not the only threat: courts can also often mess things up for platforms by failing to recognize situations where Section 230 should apply and instead allowing platforms to be held liable for how their users have used their services.

Which leads to the situation Airbnb, Homeaway, and other such platforms find themselves in. Jurisdictions unhappy with some of the effects short-term rentals have had on their communities have taken to passing regulations designed to curb the practice. Whether or not it is good policy to do so is beyond the scope of this post. If some local jurisdictions want to impose liability on their residents for renting out their homes – and not all of them do – it's between them and their voters.

The problem arises when the regulations they come up with don't just target people renting their homes, but also target the online platforms that facilitate these transactions. These ordinances effectively create liability for platforms arising from content generated by others, which is a regulatory practice that Section 230 prohibits.

So Airbnb and Homeaway have started pushing back on these ordinances, first in San Francisco and now in Santa Monica. Unfortunately both efforts to enjoin them have resulted in federal district court decisions saying that Section 230 does not shield them from their reach, meaning that these local jurisdictions are fully able to hold these platforms liable if people use them to rent homes they aren't supposed to. The decision about the Santa Monica ordinance is now before the Ninth Circuit, and last week I wrote a brief for the Copia Institute explaining why it should find that Section 230 indeed prevents these ordinances from imposing liability on these platforms. It was important to say so, not just to support Airbnb and Homeaway, but because if Section 230 can't apply to them, then it won't be able to apply to a lot of other platforms that depend on it.

The crux of the problem appears to stem from courts not seeing how what is at stake in these cases is actually speech, perhaps because the kind of speech sites like Airbnb and Homeaway intermediate is so specific. But even if the only expression these platforms intermediates is, "I have a home to rent," it's still speech, speech created by someone other than the platform, and Section 230 therefore still applies. There is no language in Section 230 that would require a platform to intermediate lots of different kinds of expression in order to be entitled to the statute's protection. Many platforms are extremely specialized in the type of expression they intermediate, often because that's what makes them useful and effective as services, and all are equally entitled to the statute's protection.

The fact that the specific speech being intermediated is transactional in nature seems to be what's confusing the courts, especially given that these sites often make money by taking a cut of the transactions that are successful. The court addressing the Santa Monica ordinance recognized that a site like Craigslist, which also hosts "I have a home to rent" speech (among other types of speech), would not be affected by the ordinance because it doesn't make money when "I have a home to rent" speech results in a rental. But there is no reason that these platforms should be treated any differently. Section 230 applies regardless of how a platform makes its money. There's no requirement in the statutory language that a platform profit only in certain ways – in fact, if anything the statute encourages platforms to be innovative so that the public can continue to benefit from their services. And for good reason: think about platforms like eBay, which also profit when "I have a thing to sell" speech finds an audience who wants to buy it. If Section 230 protection could be withheld from all platforms that make money from consummated transactions it would be more than just the Airbnb and Homeaway who would be in trouble.

The only relevant question to ask in considering whether Section 230 applies is who created the content that is potentially wrongful. In the case of Airbnb and Homeaway it is their users. After all, there's nothing inherently wrongful about saying, "I have a home to rent." Whether it is wrongful depends entirely on whether the user is allowed to rent it per local law. Liability should therefore remain entirely with the user who is the one who imbued it with its wrongness. Particularly because it is often not practical, or even possible, for platforms to police all the content passing through them. Even if they had the resources to examine the volume of user-generated content that passes through their systems they may not have the ability to know which, if any of it, was wrongful. Thus if platforms could be forced by any particular jurisdiction to try to police it anyway, in order to stave off potentially expensive liability, it would invariably chill their ability to provide their services – including in other jurisdictions.

Which is also why Section 230 includes a pre-emption provision, so that no particular jurisdiction can get to decide for any other one what Internet speech and services people can benefit from in these other places. Without that provision the jurisdiction with the most restrictive laws would otherwise get to impose its policy choices on any other jurisdiction the service now shaped by these policies could reach, which, in the case of an Internet service, is every single one of the thousands and thousands of state and local jurisdictions nationwide.

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Filed Under: cda 230, home rentals, intermediary liability, santa monica, section 230, speech
Companies: airbnb, homeaway

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  1. icon
    Ninja (profile), 4 May 2018 @ 2:30pm

    It's much easier to go after the platform instead of effectively monitoring the platforms for real illegal stuff. If anybody wanted to solve anything they would go after those who are infringing any law or committing any crime and make the threat of being caught be a deterrent. What I see are empty words and a lot of moronic grandstanding but no real action. Sadly, it will be the great majority that use the platforms within the law that will pay the price, including those who are most vocal about blaming them.

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

  2. icon
    aerinai (profile), 4 May 2018 @ 2:44pm

    Fining Suburbanites is unpopular politically

    Seems to me that Santa Monica wants to yell, kick, and scream about AirBnB but you and I both know they will not lift a finger against the people that are illegally renting their homes. That would take time, energy, and pissing off your voting base is never a great look for politicians... But attacking this 'giant evil company that is destroying the neighborhood'... no political backlash there. Just slap a giant fine on them and make them take care of the problem for them!

    Gotta love the world of perverse incentives...

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

  3. identicon
    Anonymous Coward, 4 May 2018 @ 4:11pm

    District Court Proceedings

    C.D. Cal. Dockets:

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

  4. identicon
    Anonymous Coward, 4 May 2018 @ 4:23pm

    Ninth Circuit Proceedings and Airbnb v City of Santa Monica

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

  5. identicon
    Anonymous Coward, 4 May 2018 @ 4:35pm

    Order Appealed [was Re: District Court Proceedings]

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

  6. identicon
    Anonymous Coward, 4 May 2018 @ 4:57pm

    sailing upstream

    Isn't it always the case that law enforcement will seek to go farther and farther "upstream" to solve the problems that happen at the downstream end?

    For instance, let's consider the so-called "crack houses" -- old vacant houses, often in derelict neighborhoods, where people break in, trespass, and live without permission of the owner, which is often some far-away speculator company which picks up properties that no one else wants at foreclosure auctions. When the squatters living and/or selling drugs there start to be a noticeable problem, legal threats and penalties tend to get slapped on the property owners, rather than just on the actual people who are the problem.

    Since Airbnb is a big company with deep pockets, they're only naturally going to be targeted for the behavior of others.

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

  7. identicon
    Anonymous Coward, 4 May 2018 @ 5:17pm

    Re: Order Appealed [was Re: District Court Proceedings]

    From Judge Otis Wright's Mar 9, 2018 order

    A district court in the Northern District of California explicitly rejected the argument Plaintiffs advance here. In Airbnb, Inc. v. City and County of San Francisco, Judge Donato found that San Francisco's ordinance (which is similar to the Ordinance here in that it prohibits hosting platforms from booking transactions with hosts that are not city-approved) did not treat plaintiffs as the publishers or speakers of the rental listings provided by the hosts.

    Airbnb v San Francisco (N.D.Cal. Nov. 8, 2016)

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

  8. identicon
    Anonymous Coward, 4 May 2018 @ 5:18pm

    Section 230 won’t save Airbnb

    As soon as someone rents out a home to a sex trafficker. Then the government will go after the whole site and shut it down per SESTA.

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

  9. identicon
    Anonymous Coward, 4 May 2018 @ 6:47pm

    Santa Monica Municipal Code

    Appellant's opening brief in the 9th Circuit, in its addendum, on p.83ff., provides a copy of Santa Monica Ordinance No. 2535 (CCS), which amends Santa Monica Municipal Code Chapter 6.20.

    Purely for convenience, here's a direct link to a different copy of Santa Monica's Municipal Code:


    (Note that I've made only minimal effort to compare these two versions.)

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

  10. identicon
    Anonymous Coward, 4 May 2018 @ 7:58pm

    There's no way any court is going to kisteb to this! Judges be shown that tgey dont ubderstand the laws they are supposed to and are applying in cases? They'll totally ignore everything that even hints that they've got things wrong!

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

  11. identicon
    Anonymous Coward, 5 May 2018 @ 6:00am

    Dang another way for the morally inept to Foster their fucked up principles on everyone else and get the gov't to help to boot .
    What a sad pathetic world we all share today :(

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

  12. icon
    ECA (profile), 5 May 2018 @ 12:49pm


    Its amazing that corps and SOME small groups can make things happen..
    Can you see what Local hotel/motel chains think about this?? They dont want HOMES available for short term rent..
    They want you to pay small fortunes to USE THEIR ROOMS..

    Im waiting for them to pass a bill on Health and safety for ANy temp domicile..

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

  13. identicon
    SirWired, 6 May 2018 @ 6:24pm

    They are more than a disinterested listing agent

    HomeAway and AirBnB both are more than just disinterested listing agents that charge a fee for a successful rental. They also process payments, arbitrate disputes, offer insurance, police listing accuacy, etc.

    While 230 does allow some limited editorial control, these companies are more than just nearly-passive conduits that the law was designed to protect.

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

  14. identicon
    Anonymous Coward, 6 May 2018 @ 11:03pm

    Re: They are more than a disinterested listing agent

    … more than just nearly-passive conduits that the law was designed to protect.

    By its plain terms, 47 USC § 230 protects more than “just nearly-passive conduits”. The language is—

    No provider or user of an interactive computer service…

    Emphasis is added here on the word ”user” because no reasonable person would characterize a “user” as a “nearly-passive conduit”.

    Indeed, S. Rept. 104-230 (along with the same in H. Rept. 104-458) states clearly in its discussion of the Cox-Wyden “online family empowerment” amendment (§ 509 of the Telecommunications Act of 1996)—

    These protections apply to all interactive computer services, as defined in new subsection 230(e)(2), including non-subscriber systems such as those operated by many businesses for employee use. They also apply to all access software providers, as defined in new section 230(e)(5), including providers of proxy server software.

    It is indisputable that one of the “specific purposes” of § 230 was to overrule Stratton-Oakmont v Prodigy (N.Y. Sup. Ct. Nassau Co. 1995). That case explicitly employed the term “passive conduit”. It then went on to find that Prodigy was more than a “passive conduit” and therefore was open to liabilty.

    At 142 Cong. Rec. 8469-70, then-Representative Cox explained his understanding of the court's decision and then said—

    Mr. Chairman, that is backward.

    Recently, in connection with the instant case, Chris Cox's amicus brief, on p.23 (p.30 in PDF), summed this legislative history up as—

    [T]he very purpose of Section 230 was to obliterate any legal distinction between the CompuServe model (which lacked the e-commerce features of Prodigy and the then-emergent AOL) and more dynamically interactive platforms.

    The law was designed to protect more than —your words— “just nearly-passive conduits”.

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

  15. identicon
    Anonymous Coward, 6 May 2018 @ 11:10pm

    Re: Re: They are more than a disinterested listing agent

    142 Cong. Rec. 8469-70

    Anchor text should be 141 Cong. Rec. H 8469-70. The hyperlink does go to the right url.

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

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