289 F.Supp.3d 201
D.D.C.2018Background
- In Oct–Dec 2017 the government sought a nondisclosure order under 18 U.S.C. § 2705(b) directing Airbnb not to notify anyone about a grand jury subpoena seeking basic subscriber records under § 2703(c)(2).
- A Magistrate Judge denied the government's second/amended § 2705(b) application, concluding Airbnb is a "user," not a provider, of electronic communication or remote computing services under the Stored Communications Act (SCA).
- The government filed an ex parte objection to that denial; Chief Judge Beryl A. Howell reviewed the matter de novo.
- Airbnb operates an online marketplace requiring user accounts and provides a "smart messaging" system that lets hosts and guests send and receive messages (including text and images) to one another through Airbnb’s platform.
- Airbnb’s public law‑enforcement policy states that certain law‑enforcement requests require subpoenas, court orders, or warrants and that Airbnb generally notifies users of third‑party requests unless notice is prohibited.
- The Court concluded that Airbnb’s user‑to‑user messaging system qualifies as an "electronic communication service" (ECS) for the purposes of the government’s application, reversed the Magistrate Judge, and granted the § 2705(b) nondisclosure order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Airbnb is a provider of ECS or RCS under the SCA | Airbnb provides a user‑to‑user electronic messaging system that lets users "send or receive" electronic communications and thus is an ECS provider | Airbnb is a user (not a provider) of electronic communications services; its site merely facilitates transactions and communications incidental to booking | Airbnb is an ECS provider for the purposes of the government’s § 2705(b) application because its messaging system enables user‑to‑user electronic communications |
| Whether providing ECS need be the company’s primary business function | Providing ECS need not be the primary business; the statutory definitions are functional and context‑sensitive | If messaging is ancillary, SCA should not apply to the company’s broader business | Court held the primary business function is irrelevant; providing an ECS in any part of the service suffices |
| Relevance of Airbnb’s own representations about SCA coverage | Airbnb’s public statements and counsel’s representations that it treats requests under § 2703 as governed by the SCA support treating it as an ECS provider | Airbnb could nevertheless be a nonprovider despite such representations | Court found Airbnb’s representations instructive and consistent with treating it as an ECS provider |
| Whether a § 2705(b) nondisclosure order is appropriate for a subpoena seeking § 2703(c)(2) records | Government sought nondisclosure to prevent jeopardizing an investigation and preserve grand jury secrecy | Magistrate initially denied because she concluded Airbnb was not an SCA provider | After finding Airbnb an ECS provider, court sustained the government’s objection and granted the § 2705(b) nondisclosure order |
Key Cases Cited
- Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107 (3d Cir.) (entity providing e‑mail service to employees can be an ECS provider)
- United States v. Mullins, 992 F.2d 1472 (9th Cir.) (nontraditional businesses can qualify as ECS providers when they provide communications services)
- In re United States, 665 F. Supp. 2d 1210 (D. Or.) (ECS/RCS distinction is context‑sensitive; focus on provider’s role with respect to a particular communication)
- Council on American–Islamic Relations Action Network, Inc. v. Gaubatz, 793 F. Supp. 2d 311 (D.D.C.) (SCA inquiry is functional; providing ECS to customers suffices)
- Bohach v. City of Reno, 932 F. Supp. 1232 (D. Nev.) (governmental entities providing communications facilities to personnel can be ECS providers)