Dawn Geske Jul. 14, 2016, 3:35pm

SAN FRANCISCO – A San Francisco-based online home rental business has filed a lawsuit against the city regarding its attempts to enforce a housing law.

Airbnb filed the lawsuit against the city of San Francisco claiming its housing law is illegal. The law looks at regulating the short-term rental market by requiring Airbnb’s users to register with the city. The city’s Board of Supervisors intends to fine websites like Airbnb if users on its site haven’t registered with the city for the homes they list.

While the penalties are suspended until the case is tried, Airbnb faces fines up to $1,000 per day for each violator that has an unverified listing on the site. With Airbnb’s protection under the Communications Decency Act, it doesn’t look likely that San Francisco will be able to enforce the law.

“I think Airbnb’s legal arguments that they made are pretty solid,” David Greene, civil liberties director and senior staff attorney at the Electronic Frontier Foundation, told the Northern California Record. “They city hasn’t filed its responsive papers yet so I can’t access the arguments that they are going to make. I think Airbnb’s arguments are consistent with the law.”

Airbnb has filed its papers for the case already, making several key arguments in the lawsuit. First, it is claiming it has immunity from the liability and penalties the statute imposes under the federal law for content created by others.

“If they’re serving as a platform for the content that others have created, the content creators can be liable, but the mediaries can’t be liable,” said Greene. “That was a decision that Congress made to promote the growth of the internet.”

Its second argument was made under the First Amendment.

“The idea being that the First Amendment requires that there be a fit between the regulatory goals and regulatory methods,” said Greene. “I think that a strong argument as well.”

Its third objective focuses on San Francisco wanting Airbnb to provide information on its users.

“Their requirement to turnover information is actually governed by a federal law,” said Greene. “San Francisco can’t cancel out the protection for users that that law provides.

Much of the liability under the San Francisco housing law, Airbnb seems to be able to push the liability to its users. How San Francisco would even be able to regulate a law such as this remains to be seen.

“They have to find something to regulate that doesn’t deal with the content of the user’s profiles," Greene said. "They would have to aim at regulating something else that Airbnb does aside from just providing the platform by which hosts communicate with potential guests.”

Airbnb may have the same type of issue brewing in New York as on the same day Airbnb filed its lawsuit with San Francisco, it sent an email to its New York users urging them to contact Gov. Andrew Cuomo and persuade him into vetoing a law that would also penalize users in New York.

Airbnb maintains the liability of registering with the city of San Francisco should remain with its users and not the company itself.

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Organizations in this Story

Electronic Frontier Foundation
815 Eddy Street
San Francisco, CA 94109

San Francisco
3537 E. 106th St.
Chicago, IL 60617

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