How Congress' Attempt To Break CDA230 Could Kill Airbnb

from the liability-liability-liability dept

Earlier this week, we wrote about a dangerous bill to punch a giant hole in Section 230 of the CDA. We spent a lot of time in that post detailing how problematic the bill is and how it would actually be counterproductive to the stated goal of stopping human trafficking. But, beyond just being counterproductive to the stated goal, the bill would likely create fairly massive negative consequences for tons of internet companies. If anyone used any part of that company's products and services for trafficking, it would open up companies not just to liability, but to costly legal action, even if they're eventually vindicated.

And I wanted to dig into one example: Airbnb. As we've discussed in the past, Airbnb relies heavily on CDA 230, because otherwise, any time anything went wrong with an Airbnb hosted place, Airbnb would face potentially crippling lawsuits. And I'm thinking about Airbnb specifically, because of a recent ruling that Eric Goldman pointed out, in which Airbnb's largest competitor VRBO was saved by CDA 230. You can go over to Eric's blog to read the details, but the really short version is that someone booked a "luxury resort" via VRBO for a ridiculous sum of money, and the rental units never happened. The victims targeted VRBO with the lawsuit, but the court has none of it.

The plaintiffs claimed VRBO qualified as a “seller of travel services,” which would subject it to heightened regulation. The court disagrees: “HomeAway merely provides a venue for others to sell or provide lodging, but does not provide the actual facility where people can ‘lodge.'” See the uncited SF Housing Rights Committee v. Homeaway ruling. Further, if VRBO did constitute a seller of travel services, Section 230 would apply: “To hold HomeAway liable for misleading or inaccurate material (e.g., images from another property listing appearing on a different HomeAway website being duplicated on the VBRO.com Jewels of Belize rental account) in the third party created Jewels of Belize listing contravenes Section 230 of the CDA.” To get around Section 230, the plaintiffs invoked VRBO’s “Basic Rental Guarantee,” which provides reimbursement for certain types of fraud (but doesn’t cover direct wire transfers like those at issue here). VRBO denied the reimbursement claim, concluding that the listing came from an authorized property owner and the property actually existed (but apparently had serious problems). The court says VRBO did what it promised to do in the “guarantee.” The fact VRBO used the term “guarantee” (a term I wouldn’t have chosen personally) didn’t convert the reimbursement promise into something more.

Now, there's a somewhat reasonable argument to be made that it would be smart business strategy for VRBO to handle the situation better and to reimburse these people. But making the company legally liable is another story.

So, now let's get back to SESTA, the bill that was released earlier this week. Surely, some of you are thinking, that's not a big deal for Airbnb? After all, everyone's just talking about how it's designed to takedown Backpage (ignoring that Backpage already shut down its adult section, and current law already lets the DOJ go after Backpage if it violated federal trafficking laws). And Airbnb isn't Backpage. But... there actually have been a whole bunch of stories this year claiming that prostitutes are now using Airbnb. And, with some folks trying to conflate prostitution with trafficking, is it any stretch of the imagination to think lawyers will start suing Airbnb, claiming it's violating federal anti-trafficking laws?

As Eric Goldman asks in his post:

In light of that, how would Airbnb and VRBO change their behavior to reduce their potential liability for sex trafficking pursuant to the proposed bills? Heck if I know, and I doubt Congress knows either.

Put yourself in the shoes of Airbnb and tell me: how would you completely rule out that anyone could possibly abuse the Airbnb service for trafficking? It's... not easy. This doesn't mean Airbnb wants this activity to happen via it's platform. I'm 100% sure that it does not. It would be thrilled if there were an easy to way to stop it. But... it's not. Like, this is a basic impossibility. And yet, if it happens, then suddenly the companies themselves could be liable for criminal activity. Criminal activity that was done by others, that Airbnb would have no effective way to stop, short of shutting down the site or doing something ridiculous and drastic. That... seems like a pretty big overreaction. Yes, trafficking is a problem, but this bill is sending a wrecking ball through the internet as it seeks out one particular company.

And, yes, I get that some people don't like Airbnb, so maybe they're fine with this kind of collateral damage, but Airbnb is just one example here. Plenty of other sites that you probably do like will face similar problems. This is a bad bill that won't even help with its stated goals, but will create serious problems for people around the globe.

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Filed Under: cda 230, intermediary liability, liability, prostitution, section 230, trafficking, unintended consequences

Companies: airbnb, vrbo