Airbnb-9th Circuit Amicus Brief Filed

A few weeks ago, I was asked to put together an amicus brief for the case on appeal between the City of Santa Monica and HomeAway/Airbnb. On Wednesday, it was filed and you can read it here: ​http://ssrn.com/abstract=3184930

​Essentially, Santa Monica passed an ordinance prohibiting Airbnb from taking fees for contracting with unlicensed hosts.  Airbnb filed a preliminary injunction to stop the ordinance by arguing that Section 230 protects them. Airbnb lost.  Therefore, the circuit court’s opinion is what is on appeal.
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​Our brief generally follows my most recent article with Ben Edelman, From the Digital to the Physical: Federal Limitations on Regulating Online Marketplaces​, and argues that Section 230 was never meant to protect online platforms from any and all regulation.  ​​

Section 230’s history and text make clear the protections afforded by Section 230 are limited to publishing activities. This is true regardless of the sweeping statements that are recited in the statute’s findings and policy provisions. That aspirational language is meaningless unless it is read in light of the overall statutory structure, the specific substantive terms of Section 230, and the context in which it was drafted.
 
Furthermore, the claim that “Section 230 bans regulation of the internet,” which implicitly underpins many of the Airbnb and HomeAway's assertions is a far-reaching overstatement.  The limited scope of Section 230 must be preserved as a matter of interpretation and sound policy.  "Platforms, such as Appellants, increasingly coordinate and facilitate physical activities in spheres (tourism, transportation, food services, and so on) that are under the traditional purview of state and local governments."  There is no principled way to deny these governments the ability to target specific platform behavior that is unrelated to third-party content.​