386 F. Supp. 3d 113
D.D.C.2019Background
- Airbnb operates an online marketplace connecting hosts and guests, publishes host-created listings, and separately provides booking/payment processing via a payments subsidiary. Users must accept Terms of Service requiring compliance with laws and indemnification of Airbnb.
- Boston enacted an ordinance regulating short-term rentals (effective Jan 1, 2019) that: limits eligible units, requires registration, and imposes penalties; it defines "Booking Agent" to include Airbnb.
- Three challenged provisions target Booking Agents: (1) Penalties — $300/day fine for accepting a fee for booking an ineligible unit; (2) Enforcement — conditions doing business in Boston on entering agreements to remove/de-list ineligible listings (or be barred from operating); (3) Data — monthly electronic reports listing location, room vs. whole-unit, and number of nights occupied.
- Airbnb sued claiming preemption under 47 U.S.C. § 230 (CDA), violations of the Stored Communications Act and the Fourth Amendment as to data, and several constitutional claims; it sought a preliminary injunction.
- The City initially agreed not to enforce against Booking Agents pending litigation; at argument the City conceded certain aspects (e.g., that Enforcement provision implicated CDA concerns and that usage data is nonpublic).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Penalties provision is preempted by § 230 (CDA) | § 230 bars local law that would treat Airbnb as publisher/speaker of host content; the fine will force monitoring/design changes | Ordinance targets Airbnb's independent conduct as booking agent/payment collector, not its role as publisher | Denied — § 230 does not preempt the Penalties provision; it regulates Airbnb's booking/payment conduct, not publishing |
| Whether Penalties provision violates First Amendment commercial-speech protections | Provision imposes content-based financial burden and will chill speech/design | Provision regulates economic activity (fee collection for unlawful rentals), any speech impact is incidental | Denied — provision regulates conduct not expressive activity |
| Whether Enforcement provision is preempted by § 230 (CDA) | Forces monitoring/removal of third-party listings or banishment, directly invading § 230 immunity | City initially argued Airbnb might be a co-creator of listings but later conceded features do not make Airbnb a content provider here | Allowed — preliminary injunction granted; Enforcement provision likely preempted by § 230 |
| Whether Data provision (three categories) violates Fourth Amendment / SCA | Disclosure of compiled location, unit-type, and nonpublic usage data infringes users’ and Airbnb's privacy; usage data is nonpublic and sensitive | Location and unit-type are publicly available in listings; usage data is nonpublic but City conceded risk | Mixed: injunction DENIED as to monthly reporting of publicly available location and unit-type info; preliminary injunction ALLOWED as to nonpublic usage data (nights occupied) |
Key Cases Cited
- Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12 (1st Cir. 2016) (describing § 230 three-prong framework and scope of publisher immunity)
- Universal Commc'n Sys., Inc. v. Lycos, Inc., 478 F.3d 413 (1st Cir. 2007) (interactive service remains liable for its own speech but not for third-party content)
- HomeAway.com, Inc. v. City of Santa Monica, 918 F.3d 676 (9th Cir. 2019) (upholding ordinance similar to Penal provision; distinguishes publisher-immunity claims)
- Airbnb, Inc. v. City & County of San Francisco, 217 F. Supp. 3d 1066 (N.D. Cal. 2016) (declining to enjoin ordinance penalizing collection of fees for unregistered units)
- National Meat Ass'n v. Harris, 565 U.S. 452 (2012) (preemption principles; considered but distinguished on facts)