Boston’s Victory Against Airbnb Poses Risks to Internet Economy

Abstract

Like many popular tourist destinations, Boston benefits from the sharing economy. Innovative intermediaries such as Airbnb have helped middle-class residents supplement their incomes by monetizing their greatest assets: their homes. The new short-term rental market allows homeowners to keep up with rising living costs while providing additional capacity to attract tourists who contribute to the local economy.

Also like many cities nationwide, Boston has struggled with the unintended consequences of this new marketplace. Policymakers are concerned that the new market is incentivizing owners to remove long-term rentals from the housing stock, particularly in popular and space-constrained areas like Chinatown. To mitigate this risk, a new City of Boston ordinance (City of Boston Code, Ordinances, § 9-14) requires homeowners to register short-term rental properties with the City and prohibits certain categories of properties from being offered as short-term rentals.

But it is the enforcement mechanism that has drawn the most controversy. In addition to punishing individual homeowners who run afoul of the rules, the ordinance fines intermediaries like Airbnb $300 per day for each ineligible rental booked on the site. Presumably, the fine is designed to entice these intermediaries to police their sites for violations. But while this attempt to deputize Airbnb reduces the City’s enforcement costs, it cuts against one of the fundamental tenets of Internet governance: that platforms generally are not liable for a user’s misuse of a neutral tool. This immunity, codified in Section 230 of the Communications Decency Act, 47 U.S.C. § 230, makes it possible for companies from eBay to Twitter to connect millions of users without having to monitor their every interaction for potential legal violations. In Airbnb v. City of Boston, 386 F. Supp. 3d 113 (D. Mass. 2019), the federal district court upheld the Ordinance against a Section 230 challenge, in a decision that weakens this core statutory protection and may have significant ramifications for the broader Internet economy.