Airbnb, Inc. v. City of N.Y.
373 F. Supp. 3d 467
S.D. Ill.2019Background
- Airbnb and HomeAway are online booking platforms that maintain extensive user databases (hosts, listings, bookings, payments) and require users to accept privacy/terms as a condition of use.
- New York City Local Law 146 (effective Feb 2, 2019) requires "booking services" to submit monthly transaction reports to the Mayor’s Office of Special Enforcement (OSE) containing host identities, addresses, listing URLs, rental dates, fees, and payment-account identifiers for all short‑term rentals in the City.
- The Ordinance allows notice-based consent (platforms may treat continued use as consent), does not provide a pre‑compliance judicial review mechanism, and authorizes civil penalties (at least $1,500 or fees collected) for noncompliance.
- The City argued the law aids enforcement of Multiple Dwelling Laws by allowing OSE to find illegal short‑term listings more efficiently; historically OSE has issued a limited number of targeted subpoenas to platforms.
- Plaintiffs sued seeking to enjoin the Ordinance, asserting Fourth Amendment, New York Constitution, Stored Communications Act (SCA), and First Amendment claims; the court preliminarily enjoined the Ordinance pending litigation and ordered expedited discovery.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Fourth Amendment — does the Ordinance effect an unreasonable search/seizure and require pre‑compliance review? | Ordinance compels wholesale production of business records monthly without neutral pre‑compliance review → facially invalid under Patel and administrative‑search precedents. | Law is a legitimate regulatory demand; no pre‑compliance review required and the City’s litigation satisfies review; OSE needs broad access to enforce housing laws. | Court: Likely for plaintiffs. Ordinance is a Fourth Amendment search, is insufficiently tailored, and lacks constitutionally required pre‑compliance review; large, perpetual, untailored monthly seizures are likely unreasonable. |
| Stored Communications Act (SCA) — does the Ordinance conflict with federal law restricting disclosure of customer records? | Ordinance would compel disclosure without the SCA’s required legal process, so it is preempted. | Ordinance requires platforms to obtain "lawful consent" from hosts (including notice/continued‑use language), which satisfies SCA consent exception. | Court: Claim is colorable but not shown likely to succeed at this stage; consent provision and platforms’ existing privacy terms undercut plaintiffs’ SCA argument. |
| First Amendment — does the Ordinance unconstitutionally compel speech (forcing platforms to tell users they consent)? | Ordinance forces platforms to convey a government‑mandated message (that hosts consent and continued use constitutes consent), violating compelled‑speech doctrine. | City: Ordinance regulates conduct (data production) not speech; platforms’ existing privacy policies may already satisfy the notice requirement. | Court: Did not resolve; not necessary after Fourth Amendment ruling. Court expressed skepticism that First Amendment claim was likely to prevail on current record. |
| Equitable factors — irreparable harm and balance of hardships for injunctive relief? | Constitutional violations (ongoing monthly seizures) and irretrievable disclosure of commercially sensitive user data constitute irreparable harm; compliance costs and loss of user trust further weigh for relief. | City: Public interest in enforcement of housing laws; limited hardship because targeted subpoenas remain available. | Court: Irreparable harm shown; balance of hardships and public interest favor plaintiffs. Preliminary injunction issued. |
Key Cases Cited
- City of Los Angeles v. Patel, 135 S. Ct. 2443 (2015) (administrative‑search ordinance facially invalid where no pre‑compliance neutral review)
- Camara v. Municipal Court, 387 U.S. 523 (1967) (administrative inspections require individualized showing and a warrant‑equivalent to allow pre‑compliance review)
- See v. City of Seattle, 387 U.S. 541 (1967) (agency subpoenas for business records must be limited in scope and allow pre‑compliance judicial review)
- Carpenter v. United States, 138 S. Ct. 2206 (2018) (Fourth Amendment protects certain third‑party historical cell‑site records; warrant normally required)
- United States v. Jones, 565 U.S. 400 (2012) (government placement of GPS tracking device on vehicle is a Fourth Amendment search)
- Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186 (1946) (Fourth Amendment applies to compelled administrative production of records)
- Morton Salt Co. v. United States, 338 U.S. 632 (1950) (Fourth Amendment protection extends to compelled production under process)
- Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978) (administrative search of commercial premises requires warrant or equivalent individualized review)
- Skinner v. Railway Labor Executives’ Ass'n, 489 U.S. 602 (1989) (reasonableness inquiry balances privacy intrusion against special governmental needs)