4 ms·

While I think AirBnB deliberately skirts regulations, this is a bad ruling. Literally the same argument applies to ISPs. IE under this logic, you could say tha

While I think AirBnB deliberately skirts regulations, this is a bad ruling. Literally the same argument applies to ISPs. IE under this logic, you could say that ISPs are not forced to regulate the content in their networks, but they can't charge monthly subscriber fees to those breaking the law. The problem, of course, is that doing that requires regulating and monitoring the subscribers (as AirBnB will have to) contrary to the claim in the ruling[1] I expect either this will be overturned on appeal, or it will provide a path for media companies to bend ISPs and others to their will, as they've tried to for years [1] "It creates no obligation on plaintiffs' part to monitor, edit, withdraw or block the content supplied by hosts"

oconnore 10y ago
Your example is different, because the isp in question would need to verify the absence of violations. AirBnb just needs to check the presence of a registration, much like a bar checks ids for <21.
- DannyBee 10y ago
  You can easily make them the same : The media companies put together lists of people they claim violate the law, isps must check for them and not charge subscriber fees. (any argument about who is on the list is a due process one, unrelated to this)
  - SomeStupidPoint 10y ago
    That's not the same at all. Private companies creating a list of banned persons is different, substantially, from ordinances requiring a license. The very basis of negative versus positive approval, for instance.
    - DannyBee 10y ago
      Sure they are, because i believe you've missed the point by trying to think too simply. The ordinance only requires AirBNB not charge service fees are people who are unlicensed. Imagine, instead, LA requires licensing of people who download torrents (much like they are allowed to require that people register illegal weapons, etc, and then charge folks for it). Then they say "ISP's can do whatever they want, but they can't charge subscriber fees to people who download torrents who have not registered. Doing so is a misdemeanor". Like I said, you can literally change the words "hosts who have not registered to rent their home" to "people who have not registered to do X", where X is pretty much whatever you want. (For the curious, here's what you have to do: http://sf-planning.org/office-short-term-rental-registry-faqs http://sf-planning.org/office-short-term-rental-registry-faq...) The actual ordinance text: (e) Criminal Penalties. Any Owner or Business Entity who rents a Residential Unit for Tourist or Transient Use in violation of this Chapter 41 A, or any Hosting Platform that provides a Booking Service for a Residential Unit to be used for Tourist or Transient Use in violation of the Hosting Platform's obligations under this Chapter 41A, shall be guilty of a misdemeanor. Any person convicted of a misdemeanor hereunder shall be punishable by a fine of not more than $1,000 or by imprisonment in the County Jail for a period of not more than six months, or by both. Each Residential Unit rented for Tourist or Transient Use shall constitute a separate offense.
      - manarth 10y ago
        Imagine, instead, LA requires licensing of people who download torrents You can literally change the words *"hosts who have not registered to rent their home"* to *"people who have not registered to do X"* Which is the point: SF has passed laws that require licensing. Those laws are more appropriate for some things than others. Requiring a license for renting out a property for tourist or transient use is very different to requiring a license for torrenting. Could LA pass a law requiring a license for torrenting? Could such a law withstand appeal?
  - revelation 10y ago
    They.. already do that? https://copyright.att.net/home https://copyright.att.net/home
    - DannyBee 10y ago
      ah, but the difference nothing legally requires them to follow this or risk legal action from a government :) Here's it's literally been made criminal to not do it.
  - geofft 10y ago
    I feel like, if that is prohibited by law, it really ought to be something other than Section 230 prohibiting that. Is there anything preventing, say, media companies putting together lists of people they claim violate the law, giving that to a state or local government, and having the state or local government require that camcorder sellers not sell them camcorders? (Section 230 does not apply because there is neither internet nor communication, so they can be banned outright.) What could a camcorder seller do to object to this law?
    - DannyBee 10y ago
      Nothing in your case. Remember, however, that preemption exists. 230 is a federal law ;) This is a state ordinance clearly frustrating the purpose of that federal law. Thus, normally, the answer is "it's preempted by that federal law"
__jal 10y ago
> Literally the same argument applies to ISPs. No, if we need a comparison, it is much more akin to requiring those hiring truck drivers to check if they have a commercial driver's license.
bunderbunder 10y ago
The argument doesn't have the same legs in the case of ISPs, on several fronts. Most of them are direct results of the fact that airbnb is a central provider of a very specific service, whereas ISPs simply provide access to a general-purpose communication network that doesn't even belong to anyone in particular.
- DannyBee 10y ago
  Politically, you are correct. However, quite literally, the legal logic in this ruling is explicitly not specific to anything related to airbnb. In fact, it's quite the opposite. The ruling is broad enough to be applicable to pretty much anything.
mstodd 10y ago
An ISP may facilitate lawlessness in the same way a road might for a drug trafficker, but they certainly don't participate. Airbnb participates
teraflop 10y ago
I would rather read the actual ruling, instead of a short news summary, before jumping to conclusions about what "literally the same argument" could be applied to. Usually there's a lot more subtlety to these things than the press reports. Does anybody have a link handy?
- DannyBee 10y ago
  I read the actual ruling, and it's what i quoted. https://www.cand.uscourts.gov/filelibrary/2875/Order_re_Preliminary_Injunction_16-3615-JD.pdf https://www.cand.uscourts.gov/filelibrary/2875/Order_re_Prel... Here is the ordinance in question, making it a misdemeanor to provide a booking service for them: http://sfbos.org/sites/default/files/o0178-16.pdf http://sfbos.org/sites/default/files/o0178-16.pdf
  - teraflop 10y ago
    Thanks for the link. Having skimmed through it, I still maintain that your analogy is overreaching, and I think the reason is that there's a level of indirection that you're not acknowledging. Section 230 of the CDA doesn't say "ISPs don't have to monitor their subscribers"; it says "content providers aren't liable for their subscribers' content, as long as the provider's actions are limited purely to publication of content" which happens to have the effect of making it so that in many situations, providers don't have an obligation to monitor their subscribers or exercise editorial control to cover their bases. In this case, the court opinion is quite clear that it's OK for AirBNB to publish information about unregistered listings, even if they get paid to do so. The problem is when they actively participate in transactions that go beyond simple publication of information. That seems in line with what the law actually says, and I don't see how it would apply to an ISP that is merely conveying information back and forth between third parties.
xemdetia 10y ago
"It creates no obligation on plaintiffs' part to monitor, edit, withdraw or block the content supplied by hosts" This is a correct interpretation of the Safe Harbor laws. If Airbnb was a message board and people just happened to arrange short-term rentals through it they would be fine. An ISP fits this as well because they are not actively invested to what is happening on their networks, only maintaining the networks. Likewise what their users contribute is irrelevant to the rejection. There is just no way you can argue away the fact that Airbnb is not a direct contributor to the market. They collect fees directly related to the service provided of providing short-term rentals classed as 'Booking Service' in the letter of the law of the pdf. The logic is very simple: if you are thing classified as a booking service then you need to follow these regulations. An ISP cannot be classed as a booking service under the letter of the law. obligatory IANAL.
cletus 10y ago
There are many flaws with your analogy. Other commenters have pointed out some. I'll add another: ISPs specifically have a safe harbour provision under the DMCA (for example) to specifically exempt them from the liability of anything illegal their customers might do (provided they abide by the other provisions).

oconnore 10y ago

Your example is different, because the isp in question would need to verify the absence of violations. AirBnb just needs to check the presence of a registration, much like a bar checks ids for <21.

DannyBee 10y ago
You can easily make them the same : The media companies put together lists of people they claim violate the law, isps must check for them and not charge subscriber fees. (any argument about who is on the list is a due process one, unrelated to this)
- SomeStupidPoint 10y ago
  That's not the same at all. Private companies creating a list of banned persons is different, substantially, from ordinances requiring a license. The very basis of negative versus positive approval, for instance.
  - DannyBee 10y ago
    Sure they are, because i believe you've missed the point by trying to think too simply. The ordinance only requires AirBNB not charge service fees are people who are unlicensed. Imagine, instead, LA requires licensing of people who download torrents (much like they are allowed to require that people register illegal weapons, etc, and then charge folks for it). Then they say "ISP's can do whatever they want, but they can't charge subscriber fees to people who download torrents who have not registered. Doing so is a misdemeanor". Like I said, you can literally change the words "hosts who have not registered to rent their home" to "people who have not registered to do X", where X is pretty much whatever you want. (For the curious, here's what you have to do: http://sf-planning.org/office-short-term-rental-registry-faqs http://sf-planning.org/office-short-term-rental-registry-faq...) The actual ordinance text: (e) Criminal Penalties. Any Owner or Business Entity who rents a Residential Unit for Tourist or Transient Use in violation of this Chapter 41 A, or any Hosting Platform that provides a Booking Service for a Residential Unit to be used for Tourist or Transient Use in violation of the Hosting Platform's obligations under this Chapter 41A, shall be guilty of a misdemeanor. Any person convicted of a misdemeanor hereunder shall be punishable by a fine of not more than $1,000 or by imprisonment in the County Jail for a period of not more than six months, or by both. Each Residential Unit rented for Tourist or Transient Use shall constitute a separate offense.
    - manarth 10y ago
      Imagine, instead, LA requires licensing of people who download torrents You can literally change the words *"hosts who have not registered to rent their home"* to *"people who have not registered to do X"* Which is the point: SF has passed laws that require licensing. Those laws are more appropriate for some things than others. Requiring a license for renting out a property for tourist or transient use is very different to requiring a license for torrenting. Could LA pass a law requiring a license for torrenting? Could such a law withstand appeal?
- revelation 10y ago
  They.. already do that? https://copyright.att.net/home https://copyright.att.net/home
  - DannyBee 10y ago
    ah, but the difference nothing legally requires them to follow this or risk legal action from a government :) Here's it's literally been made criminal to not do it.
- geofft 10y ago
  I feel like, if that is prohibited by law, it really ought to be something other than Section 230 prohibiting that. Is there anything preventing, say, media companies putting together lists of people they claim violate the law, giving that to a state or local government, and having the state or local government require that camcorder sellers not sell them camcorders? (Section 230 does not apply because there is neither internet nor communication, so they can be banned outright.) What could a camcorder seller do to object to this law?
  - DannyBee 10y ago
    Nothing in your case. Remember, however, that preemption exists. 230 is a federal law ;) This is a state ordinance clearly frustrating the purpose of that federal law. Thus, normally, the answer is "it's preempted by that federal law"

__jal 10y ago

> Literally the same argument applies to ISPs. No, if we need a comparison, it is much more akin to requiring those hiring truck drivers to check if they have a commercial driver's license.

bunderbunder 10y ago

The argument doesn't have the same legs in the case of ISPs, on several fronts. Most of them are direct results of the fact that airbnb is a central provider of a very specific service, whereas ISPs simply provide access to a general-purpose communication network that doesn't even belong to anyone in particular.

DannyBee 10y ago
Politically, you are correct. However, quite literally, the legal logic in this ruling is explicitly not specific to anything related to airbnb. In fact, it's quite the opposite. The ruling is broad enough to be applicable to pretty much anything.

mstodd 10y ago

An ISP may facilitate lawlessness in the same way a road might for a drug trafficker, but they certainly don't participate. Airbnb participates

teraflop 10y ago

I would rather read the actual ruling, instead of a short news summary, before jumping to conclusions about what "literally the same argument" could be applied to. Usually there's a lot more subtlety to these things than the press reports. Does anybody have a link handy?

DannyBee 10y ago
I read the actual ruling, and it's what i quoted. https://www.cand.uscourts.gov/filelibrary/2875/Order_re_Preliminary_Injunction_16-3615-JD.pdf https://www.cand.uscourts.gov/filelibrary/2875/Order_re_Prel... Here is the ordinance in question, making it a misdemeanor to provide a booking service for them: http://sfbos.org/sites/default/files/o0178-16.pdf http://sfbos.org/sites/default/files/o0178-16.pdf
- teraflop 10y ago
  Thanks for the link. Having skimmed through it, I still maintain that your analogy is overreaching, and I think the reason is that there's a level of indirection that you're not acknowledging. Section 230 of the CDA doesn't say "ISPs don't have to monitor their subscribers"; it says "content providers aren't liable for their subscribers' content, as long as the provider's actions are limited purely to publication of content" which happens to have the effect of making it so that in many situations, providers don't have an obligation to monitor their subscribers or exercise editorial control to cover their bases. In this case, the court opinion is quite clear that it's OK for AirBNB to publish information about unregistered listings, even if they get paid to do so. The problem is when they actively participate in transactions that go beyond simple publication of information. That seems in line with what the law actually says, and I don't see how it would apply to an ISP that is merely conveying information back and forth between third parties.

xemdetia 10y ago

"It creates no obligation on plaintiffs' part to monitor, edit, withdraw or block the content supplied by hosts" This is a correct interpretation of the Safe Harbor laws. If Airbnb was a message board and people just happened to arrange short-term rentals through it they would be fine. An ISP fits this as well because they are not actively invested to what is happening on their networks, only maintaining the networks. Likewise what their users contribute is irrelevant to the rejection. There is just no way you can argue away the fact that Airbnb is not a direct contributor to the market. They collect fees directly related to the service provided of providing short-term rentals classed as 'Booking Service' in the letter of the law of the pdf. The logic is very simple: if you are thing classified as a booking service then you need to follow these regulations. An ISP cannot be classed as a booking service under the letter of the law. obligatory IANAL.

cletus 10y ago

There are many flaws with your analogy. Other commenters have pointed out some. I'll add another: ISPs specifically have a safe harbour provision under the DMCA (for example) to specifically exempt them from the liability of anything illegal their customers might do (provided they abide by the other provisions).