In order to wage war against home-sharing platforms, a former hotel executive and freshman congressman is trying to rewrite one of the fundamental laws which guarantees a free and open internet.
Rep. Ed Case (D–Hawaii) has introduced the "Protecting Local Authority and Neighborhoods Act" which would use federal power to stop websites like Airbnb and HomeAway from including listings that are illegal under local ordinances or state laws—in places like Hawaii, for example, which has some of the strictest laws against home-sharing in the country.
In a statement announcing the bill, Case said his proposal "would end abusive litigation by Internet-based short-term rental platforms like AirBnb, HomeAway, VRBO, Flipkey, and others attempting to avoid accountability for profiting from illegal rentals."
That supposedly "abusive litigation" those websites are engaging in? It's nothing more than pointing to Section 230 of the Communications Decency Act of 1996—otherwise known as the 26 words that created the modern internet. Under the legal framework created by Section 230, online platforms are protected from legal liability for the content hosted on their servers, websites, or apps.
If Airbnb and other home-sharing platforms are pointing to Section 230 to avoid liability for supposedly "illegal" listings, that's hardly different from a person pointing to the First Amendment as a defense against being prosecuted for saying "hey, if you want to stay in my apartment for a few days, you can." The government has no business regulating how people use their private property in the first place, and it certainly has no business prosecuting anyone for merely advertising that a rental is available.
But that's what Case wants to do, and he's willing to tear up Section 230 in order to do it. His bill proposes specifically exempting any online platform offering rental property from Section 230's protections. To borrow the same analogy, it's the equivalent of saying Congress should rewrite the First Amendment so that it applies to everyone except my neighbor Bob, because I really don't like how Bob stands in the middle of the street and yells about how people can rent his spare bedroom.
That would be insane, of course. Furthermore, excluding one group of online platforms from Section 230 would start an avalanche of similarly grievance-based legislation aimed at other corners of the internet. There are already a bunch of proposals floating around Congress—all of them bad ideas—to rewrite or abolish Section 230 so the government can have greater control over online content. Each of them come with promises of protecting children from online predators or saving Americans from the scourge of autoplay videos, but all carry a thinly-veiled threat of making all online content subject to government censorship.
Case says his legislation is meant to help state and local governments that are "updating their land-use laws to more tightly regulate short-term rental activity including liability for the platforms," but it is pretty obvious that he's really just doing the hotel industry's bidding.
To say that Case has close ties to the hotel industry is an understatement. Before getting elected to Congress last year, he was on the American Hotel and Lodging Association's (AHLA) board of directors. Prior to that, he was a senior vice president for a Hawaiian hotel chain, Outrigger Enterprises Group. Two of Case's four largest donors, according to federal campaign finance data, are the AHLA and Marriott International.
"These Big Tech rental platforms are invoking a loophole in a federal law to snub their noses at local government leaders across the country, while continuing to profit from illegal business transactions," says Chip Rogers, president and CEO of the AHLA, in the congressman's statement announcing the bill. Elsewhere in the same statement, Rogers refers to Section 230 as an "antiquated law."
The AHLA has been on the front lines of the hotel industry's fight to stop Airbnb from competing with the Hiltons and Marriotts of the world. They were behind a series of misleading ads blaming Airbnb for harming neighborhoods in Washington, D.C. (even though the group had hired actors to play the roles of concerned residents). More seriously, the AHLA has helped write many of the local ordinances Case says he's trying to enforce with his bill. "You got to thank all of our friends at AHLA for working as hard as they have been to push legislation across the country really in all these key cities," Mike Barnello, chief executive of LaSalle Hotel Properties, said during a conference call with shareholders in 2016, before crediting those efforts with keeping prices high at hotel properties in New York City.
Indeed, the bottom line for hotel chains is the bottom line. Restricting home-sharing means artificially higher prices for hotel rooms—particularly when demand surges, studies show. Property rights and "antiquated laws" like the fundamental building block of a free and open internet? Those are lesser concerns.
"This bill creates a moral hazard by letting big hotel chains harass short term rental competitors, just so the big hotels can further increase their room rates," says Steve DelBianco, president of NetChoice, a trade association of e-commerce businesses. "Weakening Section 230 will damage Americans' ability to communicate online. The bill empowers Marriott to stop us from lawfully earning rental income on our own homes."
When you dig a little, most attempts to rewrite Section 230 are rooted in attempts by one industry to kneecap another. But it's rare to see such a blatant example of self-serving legislation.