Airbnb Sues San Francisco, Alleges Violation of CDA Section 230

On June 27, 2016, Airbnb filed a complaint against the City of San Francisco in the U.S. District Court for the Northern District of California alleging that a recently-enacted ordinance requiring Airbnb hosts to register and post their registration numbers while renting their apartments on the Airbnb platform violates Section 230 of the Communications Decency Act (CDA), among other laws. On its website, Airbnb states:

Over the last year, we have held eleven town hall meetings to explain the registration process, repeatedly emailed hosts to encourage them to register, and convened scores of meetings with individual hosts to help walk them through the required registration steps. 

But instead of fixing the process, the Board of Supervisors recently passed a hastily-crafted proposal requiring Airbnb to remove all unregistered hosts. This legislation ignores the reality that the system is not working and this new approach will harm thousands of everyday San Francisco residents who depend on Airbnb. It also violates federal law.

Airbnb allows "Hosts" to rent rooms, apartments, or houses to "Guests" for varying periods of time. Hosts post listings for available spaces on the Airbnb platform, and Guests use the platform to locate and select listings.

Airbnb contends that the City's ordinance, which becomes effective on July 24, 2016, is preempted by CDA sections 230(c)(1) and (e)(3), which state:

(c)(1): 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.

(e)(3): Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section. (emphasis added)

The new ordinance is here. Section 41A.5(l)(1)(F) requires apartment owners to register their apartments and include their registration number in any Airbnb (or other platform) listing. Sections 41A.5(c)-(j) permit civil and criminal actions against owners and housing platforms that violate the ordinance. In paragraph 5 of its complaint, Airbnb alleges that:

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, which preempts the enforcement of these provisions against Airbnb.

You can find additional coverage of the lawsuit here and here. G.S. Hans at Center for Democracy and Technology noted that the ordinance would run into problems with the CDA:

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.

If the ordinance were limited to the Hosts renting apartments over Airbnb, the City would have avoided the Section 230 problem. As the ordinance stands, however, it appears to impose civil and criminal liability against Airbnb if Hosts advertise over Airbnb without including the proper registration numbers, Holding the Airbnb platform liable for the content (or missing required content) of its users' posts appears to violate Section 230, and Airbnb's lawsuit will likely succeed as a result.