Airbnb sues Boston over new regulations; cites free-speech, privacy grounds

Airbnb, which ginned up a heavy-handed astroturf campaign to try to block city regulation of short-term rentals, is now trying another approach: A lawsuit charging Boston with heavy handedness of its own by attempting to violate both Airbnb's and its affiliates' free speech and privacy rights.

In a complaint filed in US District Court in Boston today, the company says its listings are not its own products and that it is the publisher of a Web site used by third parties to advertise their rooms and condos to the public.

As a publisher, Airbnb says, it is protected from any government action over those listings by third parties. And because it's a publisher, the city can't require it to share what it says is confidential information with its customers - which in this case means the people and companies that use its platform to offer short-term rentals.

Another national site, Backpage.com, has long used the same argument to frustrate law-enforcement agencies investigating the trafficking of minors.

In June, the City Council passed, and Mayor Walsh signed, an ordinance, set to go into effect Jan. 1, that would ban investor-owned short-term rental units altogether and set up a series of registration and notification requirements for people renting out such units. For example, owners of units rented out would have to register with ISD, notify adjacent unit owners.

The ordinance would also require Airbnb and other booking services to delete any listings of ineligible units - for example, units facing city health or building violations or which had not been registered with the city.

It's these requirements that most offend Airbnb. In its complaint, the company says:

Airbnb believes that home-sharing may be lawfully regulated, and it has worked with dozens of cities to develop the tools they need to do so without violating federal or state law. Boston’s heavy-handed approach, however, crosses several clear legal lines and must be invalidated.

The Ordinance, for example, compels Airbnb to enter into undefined so-called "agreements" with the City that will require Airbnb to take down listings posted by third-parties and prevent whatever scope of listings in whatever manner Boston dictates - or else be barred from Boston altogether. The Ordinance also forces home-sharing platforms like Airbnb to actively police third-party content on their websites by penalizing the design and operation of their platforms and restricting and imposing severe financial burdens on protected commercial speech. And it requires Airbnb to disclose to the City confidential information about its users without any legal process or precompliance review. This regime violates the Communications Decency Act (47 U.S.C. § 230), the Stored Communications Act (18 U.S.C. §§ 2701 et seq.), the First, Fourth, and Fourteenth Amendments of the U.S. Constitution, and the Massachusetts Declaration of Rights.

The complaint continues:

The Ordinance is inconsistent with the CDA because it (i) requires Airbnb to remove (and prohibits the publication of) certain third-party rental advertisements; (ii) directly regulates the structure and operation of Airbnb’s platform; and (iii) requires Airbnb to monitor, review, and verify that third-party content. By imposing these obligations and duties on Airbnb, and costly liability for failure to comply, the Ordinance impermissibly treats Airbnb as the publisher or speaker of third-party content. The CDA therefore preempts the Ordinance.

The Ordinance apparently attempts to evade the preemptive effects of the CDA by requiring Airbnb to enter an "agreement" to undertake the offensive monitoring and removal activities. That is not an "agreement" - it is compulsion.

The Ordinance also violates the First and Fourteenth Amendments of the U.S. Constitution and Article 16 of the Massachusetts Declaration of Rights because it is an impermissible content-based regulation of speech.

The Ordinance also violates the Stored Communications Act, 18 U.S.C. §§ 2701 et seq. (the "SCA"), the Fourth Amendment, and Article 14 of the Massachusetts Declaration of Rights by requiring Airbnb to turn over personal, non-public information about its hosts. The City cannot obtain this data without legal process and precompliance review. In attempting to do so, the Ordinance breaches critical privacy protections.

The complaint asks that a judge strike the registration and reporting requirements of the ordinance, at least as they apply to Airbnb, and to award the company attorneys fees.

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Comments

sorry but no

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AirBnB is upset that the city passed regulations forcing them to police themselves. Plain and simple. For context - "third-party content" are people's listings. AirBnB is saying it is unfair to make them police their own listings.

"The Ordinance, for example, compels Airbnb to enter into undefined so-called "agreements" with the City that will require Airbnb to take down listings posted by third-parties and prevent whatever scope of listings in whatever manner Boston dictates - or else be barred from Boston altogether. The Ordinance also forces home-sharing platforms like Airbnb to actively police third-party content on their websites by penalizing the design and operation of their platforms and restricting and imposing severe financial burdens on protected commercial speech."

I, for one, would rather force AirBnB to actually follow city ordinances and regulations by conforming to them, rather than having AirBnB simply refuse and force the City to spend taxpayer money to have to do it all themselves.

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49

With apologies to Gilbert and Sullivan

By on

I am the very model of a modern Libertarian:
I teem with glowing notions for proposals millenarian,
I've nothing but contempt for ideologies collectivist
(My own ideas of social good tend more toward the Objectivist).
You see, I've just discovered, by my intellectual bravery,
That civic obligations are all tantamount to slavery;
And thus that ancient pastime, viz., complaining of taxation,
Assumes the glorious aspect of a war for liberation!

Chorus:
You really must admit it's a delightful revelation:
To bitch about your taxes is to fight for liberation!

I bolster up my claims with lucubrations rather risible
About the Founding Fathers and the market's hand invisible;
In fact, my slight acquaintance with the fountainhead Pierian
Makes me the very model of a modern Libertarian!

Chorus:
His very slight acquaintance with the fountainhead Pierian
Makes him the very model of a modern Libertarian!

All "public wealth" is robbery, we never will accede to it;
You have no rights in anything if you can't show your deed to it.
(But don't fear repossession by our Amerind minority:
Those treaties aren't valid---Uncle Sam had no authority!)
We realize whales and wolves and moose find wilderness quite vital,
And we'll give back their habitats---if they can prove their title.
But people like unspoiled lands (we too will say "hooray" for them),
So we have faith that someone else will freely choose to pay for them.

Chorus:
Yes, when the parks are auctioned it will be a lucky day for them---
We're confident that someone else will freely choose to pay for them!

We'll guard the health of nature by self-interest most astute:
Since pollution is destructive, no one ever will pollute.
Thus factories will safeguard our communities riparian---
I am the very model of a modern Libertarian!

Chorus:
Yes, factories will safeguard our communities riparian,
He is the very model of a modern Libertarian!

In short, when I can tell why individual consumers
Know best who should approve their drugs and who should treat their tumors;
Why civilized existence in its intricate confusion
Will be simple and straightforward, absent government intrusion;
Why markets cannot err within the system I've described,
Why poor folk won't be bullied and why rich folk won't be bribed,
And why all vast inequities of power and position
Will vanish when I wave my wand and utter "COMPETITION!"---

Chorus:
He's so much more exciting than a common politician,
Inequities will vanish when he hollers "Competition!"

---And why my lofty rhetoric and arguments meticulous
Inspire shouts of laughter and the hearty cry, "Ridiculous!",
And why my social theories all seem so pre-Sumerian---
I'll be the very model of a modern Libertarian!

Chorus:
His novel social theories all seem so pre-Sumerian---
He is the very model of a modern Libertarian!

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32

its a sad day when I agree with will

By on

but technically they're in the right. protection of publishers from being gone after by what people publish on their sites is a super important pillar of the modern internet. unfortunately AirBnB is using it on a technicality and for shitty reasons, but case law is case law and there's a greater good to uphold.

Fraud is not protected speech

The new regulations just limit short term rentals to owner occupied buildings with 5 or fewer units. If you are advertising a short term rental that violates city ordinances, then its fraud. The rules are very reasonable. The owner needs to supervise this activity. Running a hotel on the cheap is not an entitlement.

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Agree absolutely - but the

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Agree absolutely - but the issue isn't whether or not the fraud speech is legal, but whether AirBnB - or facebook, or godaddy, or any provider of internet space - can be held legally responsible for policing the content posted by 3rd parties to its service. the law has generally said "no," with some exceptions, because if it was yes, the general internet in general, much of which ventures into various gray spaces, legally, would pretty much grind to a halt as every service overreacted less they get slapped with lawsuits and copywrite and blah blah blah.

now, airbnb using this as a defense is PRETTY SKETCHY, because, like, their service is not "a place for people to post things that can't always be guarenteed to be 100% legal" the way like, twitter is, but as a direct link between buyers and sellers. more akin to ebay, who I think has some responsibility for ensuring people aren't selling flat out insane things using their architecture.

anyway I agree airbnb is skeezy and the city law is a reasonable step etc etc but unintended consequences of these things could be bad especially with the growing corporitization of the internet and the consolidation of "public space" into a few hands in silicon valley.

what is reasonable care?

AirBnB is a payment portal that sets many conditions on its users. The city is simply defining what is reasonable care of whether a host has the right to rent out the space. All they have to do is collect the license number.

Yeah. I know. Let's throw people in the hole for being crazy

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I mean, what could go wrong if being called crazy is enough to deprive you of basic rights like freedom of movement, speech, and commerce?

And the beauty is that the system is perfectly stable. Anyone who objects is crazy and removed from the system. Flawless.

End sarcasm.

We're trying to have a civilization here

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I mean, what could go wrong if being called crazy is enough to deprive you of basic rights like freedom of movement, speech, and commerce?

What could go wrong if you could simply declare your freedom to move wherever you want, speak whatever you want wherever you want, and engage in commerce without regulation, and NOT be called crazy?

We're trying to have a civilization here, Roman, and you're a barbarian. Go elsewhere.

Standing

Since air bnb is just kind of a bystander as third parties advertise their rentals, maybe they don’t have standing to complain about these regulations.

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29

So... free speech = free

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So... free speech = free commerce. The 1st amendment allows you to broker any transaction you want.

So true

That's why I was able to buy an AK-47 at the Roslindale farmers market the other day.

#sarcasm

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11

Sorry, If Walsh appointed

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Sorry, If Walsh appointed Boston Zoning Board of Appeals and Fair Housing Commission members can try to sue one of their former clients for a "Yelp" review, then Air B and B should have their day in court too. Free speech? Only if you have $$$.

wait, what yelp review?

Please give more details, I love yelp sagas.

But I think they will shoot themselves in the foot with this suit. Fraud is not protected speech. The poster has a free choice of whether they are willing to verify whether their listing is legal in Boston. They don't care about free speech, they are pissed that the number of listings will be reduced. And they aren't liable for the actions of their members, they are subject to fines for ignoring city ordinances.

AirBNB's effect on affordable

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AirBNB's effect on affordable housing is small compared to the inaction of not builiding (or incentivizing to build) housing.

Also, just because regulations exist doesnt mean they are good regulations that make sense.

I disagree, anon.

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By being allowed to continue with their dirty work, AirBnB is contributing in no small way to and exacerbating an already long-existing problem: lack of affordable housing for those who really need it. Don't kid yourself.

I beg to differ...

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A few years ago, an abandoned industrial building in my neighborhood was torn down and "apartments" were built in it's place. Those of us who are close neighbors approved the developer's design and concept, and a few of my neighbors were looking forward to its completion so they could apply for an apartment there, as their income had increased to the point where they no longer qualified for affordable housing, but they certainly did not make enough to be able to even *think* about "luxury" apartments.

These lovely people are no longer my near neighbors. Why? WE WERE LIED TO.

Because that building is made up ENTIRELY of Air B'n'B units, rented out by some investment company.

No actual apartments at all.

THIS is why I really, really, really hope that Air B'n'B LOSES this lawsuit.

Boston needs real housing for real people, not illegal hotels and not "luxury" crap that nobody who lives here can ever hope to afford.

Reminder: AirBnB = Kremlin $

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Just a little reminder that "AirBnB" is funded by the Kremlin's bank VTB through Yuri Milner. As is the case for Facebook, Twitter, Groupon, Spotify... Skirting local laws & regulations is a feature, not a bug for AirBnB - because they need to entice customers into giving away their data.

essentially it's just the

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essentially it's just the parts holding AirBnB responsible for enforcing whether or not the property owners do what they're required to do that should be struck down. property owners can still be held accountable, the city will just need to put in a modicum of effort and find these people themselves. how sad for the ISD, they'll actually have to work.

You're right, let me finish the thought.

Why should they be allowed to cost the taxpayers so much money? AirBnB is price gouging during a crisis.

We’re one of those rich states with high housing costs and an outsize homeless population. But the number of “unsheltered” homeless — people stuck on the street — is extremely low, among the very lowest in the country. And one big reason is that Massachusetts guarantees homeless families a “right to shelter.”
...
You can think of homelessness as being caused by a confluence of three things:

1. A sudden life shock, like a health crisis or unexpected unemployment.

2. A breakdown in social support, with too few friends and relatives willing to lend their couches or share their homes.

3. A lack of alternative housing at the bottom end of the rental market

https://www.bostonglobe.com/2016/08/24/poverty-drives-homeless-rates-fas...

In your libertarian fantasy, we should allow the (imaginary) free market to control prices and expect people to take responsibility for themselves. I am a commie because I don't want to step over people sleeping on my sidewalk and occasionally freezing to death on my porch. I am glad that we care for homeless people in Massachusetts. I am also glad that new business models disrupt the pay to play commerce that masquerades as a free market, but those new business models don't get to cost me tax money. It is not ok to have luxury apartments empty while people are sleeping in the street. We are losing other kinds of industry because of high cost of housing. AirBnB needs to be responsible for their business.

Learning some history

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We already tried this libertarian fantasy land bullshit. We ended up with poisoned water, tainted food, massive infectious disease epidemics. out of control drug and alcohol use, flocks of homeless children, epic crime rates ...

It was called the Gilded Age. Look it up!

Fine...

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Let AirBnB list anything they want by removing the requirements that they take down any rental that doesn't abide by the law.

Then when you find unregistered, illegal apartments on there, hit AirBnB with conspiracy to fraud with a count for every illegal apartment you find.

Maybe they should work with the government to make sure they're only listing properties that are legal instead.

Can't prove intent to fraud for AirBnB.

They are required to take reasonable care that the listings are legal. That's why municipalities are regulating short term rentals in this way. The law specifies what is reasonable care, by requesting the short term rental permit. It is isn't an invasion of privacy any more than requiring your SSN or TNN to get payment. And AirBnB has been doing that from the start. It's the pay portal that makes the big money.

Popcorn, Movie Eyes.

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At this point, all I'd like to do is sit back and look at the flickering images.