Cities Rushing To Restrict Airbnb Are About To Discover That They're Violating Key Internet Law

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 termrentals including where a listing has been offered: without a Home-Sharingregistration number; by a Host who has more than one listing in the City of LosAngeles; 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.

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