Today, a San Francisco Board of Supervisors committee will discuss new rules for home sharing that could further confuse the City’s complicated short term rental laws. This well-intentioned proposal is aimed at preventing bad actors from converting housing intended for long-term residents into illegal hotels. Unfortunately, many online privacy and technology law experts believe the new proposal conflicts with important Federal laws intended to protect and encourage a free and open internet. Instead of simplifying and strengthening San Francisco’s existing rules, this proposal would most likely result in more delay and confusion.
Airbnb is committed to working with San Francisco lawmakers on solutions that protect the City’s housing stock, simplify and streamline the rules for hosts, and ensure that all short term rental operators (not just Airbnb hosts) pay their share of hotel taxes. We agree that online platforms like Airbnb can take a more active role in addressing these regulatory concerns, and Airbnb has already taken steps to address the big issues.
We urge the Board of Supervisors to take the time and work through real solutions that address key concerns without violating important Federal protections for speech and innovation. On the proposed law, the Electronic Frontier Foundation cautioned it, “would create a chilling atmosphere for online commerce and speech.” The Center for Democracy and Technology describes the proposal as ‘unlawful’, noting that ‘the internet wouldn’t work if it were subject to piecemeal regulations by every state and city within the US.’
The diverse array of legal and privacy experts raising legal concerns continues to grow, and here is some of what they’re saying:
“States and localities can pass laws that are consistent with [Federal Telecommunications Code] 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. The multiple escape routes that the San Francisco proposal identifies don’t inoculate it from Section 230, either…Section 230 doesn’t allow for states to create liability but couple it with an alternative..”
“Current San Francisco law requires those who seek to offer their homes on a short-term rental platform to apply and receive a registration number. The proposed ordinance to amend that code goes much further… [it] clearly imposes a level of liability on short-term rental platforms and undermines the preemption contained in Section 230.. In a larger context, should state and local governments begin creating a series of laws inconsistent with Section 230, the result would be a legal quagmire that leaves the cities, the platforms, the hosts and travelers in a state of legal and operational uncertainty, thereby benefitting no one.”
“The internet is an open platform that enables people from all parts of San Francisco to participate and say whatever they want. While some nations discourage user-generated content, the United States created fertile ground for business models that have transformed the world. Moreover, this innovation is protected by Section 230 of the federal Communications Decency Act. Section 230 operates as the backbone for our favorite e-Commerce sites. Without Section 230 we might not have platforms like eBay, Kickstarter, Stubhub .. or YouTube. Put simply, Section 230 says platforms can’t be held strictly liable for content posted by others. However, these [proposals] ignore Section 230. This not only threatens a core tenet of the internet, but is at odds with federal law – resulting in the likely injunction of [the new laws]”
“Our main concern is that it likely infringes upon the spirit of Section 230 of the federal Communications Decency Act. Section 230 is often referred to as the First Amendment of Internet law and is the foundation on which Internet platforms have built their businesses.”
“This proposal is of serious concern … holding Internet companies liable for user-generated content contravenes well-established federal law that has been the linchpin of the vibrant and successful Internet we know today. Recognizing that the Internet and interactive computer services provide a platform ‘for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity’, Congress passed Section 230 of the [CDA] in 1996… Courts have interpreted this provision broadly to bar intermediary liability for user-generated content. This clear protection has enabled the Internet’s explosive growth and provided the necessary legal certainty for scores of Internet services, including blogs, forums, consumer review sites, social networks, search engines, video hosting services, e-commerce marketplaces, and the immediate instance, travel and accommodation sites…”