When Congress created the Communications Decency Act 20 years ago, it was meant to help make the web economy possible by shielding Internet companies from the actions of their users.
It meant if someone tried to sell a counterfeit purse on eBay, eBay wouldn’t owe Louis Vuitton anything. If someone posted a hateful message on a Geocities website, Geocities wouldn’t be on the hook for a defamation lawsuit.
As long as these Internet companies behaved as intermediaries that simply hosted user content — with the exception of certain criminal claims, such as child pornography — they were protected.
Now Airbnb Inc. says it should be protected, too.
The company filed a lawsuit on Monday against its home city of San Francisco, alleging a new ordinance that would fine short-term rental firms for not proactively removing unregistered property listings from their websites and apps violates the Communications Decency Act, the Stored Communications Act and the 1st Amendment.
Though it might seem strange for Internet companies to get a free pass when their users break the law en masse, legal experts have described Airbnb’s invocation of the Communications Decency Act, or CDA, as a “slam dunk” because the act is so expansive.
It’s the reason web forums, review sites and social media companies can exist without fear of being sued for what their users post, according to Gautam Hans, director of the Center for Democracy & Technology, and it’s a defense frequently used by companies such as Google and Facebook.
“Someone might file a defamation lawsuit against them for something a user wrote, and the company counters with Section 230 of the CDA,” Hans said. “Many private individuals don’t know about its existence.”
In Airbnb’s case, the short-term rental giant is arguing that although some people might be breaking the law by listing property on Airbnb without first registering with the city, Airbnb isn’t responsible — and can’t be held accountable — for what people decide to list on its platform.
And its odds of winning are high, said Daphne Keller, director of intermediary liability at Stanford University’s Center for Internet and Society, who said many companies have successfully used the CDA as a defense.
One of the first high-profile cases came in the late ’90s — Zeran vs. American Online, Inc. — in which Kenneth Zeran sued AOL for negligence after the Internet company did not immediately remove messages anonymously posted to its bulletin board that made it look like Zeran was a supporter of the Oklahoma City bombing.
The U.S. 4th Circuit Court of Appeals ruled in favor of AOL.
In 2009, Yahoo Inc. was sued by Cecilia Barnes, alleging the company failed to remove fake accounts created by Barnes’ ex-boyfriend that purported to be hers.
The U.S. 9th Circuit Court of Appeals ruled in favor of Yahoo.
But although the examples of companies successfully using the CDA are many, the act doesn’t give Internet firms carte blanche.
One of the best-known cases in which an Internet company failed using the act in a defense was the Fair Housing Council of San Fernando Valley vs. Roommates.com. The council sued the roommate-matching website for violating the Fair Housing Act, alleging it allowed users to discriminate through the website’s questionnaires.
In this case, the company was on the hook not because its users had posted discriminatory content, but because the site itself made it mandatory for users to submit information about their gender, sexual orientation and parental status — information that could have facilitated discrimination on the platform. As such, the court determined that the company was fair game.
Though Roommates.com eventually prevailed in the lawsuit, it did so without CDA immunity.
Airbnb’s circumstances are different from Roommates.com’s, because the latter was accused of facilitating discrimination through a mandatory feature, and Airbnb is under pressure from the city to police its listings and remove any that have not been registered with the city.
Under city ordinance, Airbnb hosts are expected to provide their short-term rental permit number on their listing. Airbnb argues that that is the user’s responsibility, not Airbnb’s.
Airbnb’s invocations of the Stored Communications Act and the 1st Amendment are smaller claims, but their use by tech companies is not unheard of, either.
Google, for example, has invoked its 1st Amendment rights — which protects freedom of speech — in search-ranking cases in which plaintiffs have accused the search giant of demoting their ranking.
Numerous tech firms have refused to hand over user data unless cities and state agencies first obtain a subpoena or go through an established legal process.
“I suspect part of the reason Airbnb is doing this is because San Francisco is a prominent city for them,” Hans said of the lawsuit. “They want to make sure other cities don’t do the same thing."
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