Airbnb Data Release Injunction with law firm Moss & Moss LLP
•Download as PPTX, PDF•
1 like•367 views
This document summarizes a meetup for NYC Airbnb hosts about a new data sharing law. It discusses legal arguments made against the ordinance, the current outcome of related lawsuits, the data required to be disclosed under the ordinance, definitions, penalties, legal considerations for hosts, common enforcement outcomes, who is at risk, and basic strategies for hosts.
Recommended
More Related Content
Similar to Airbnb Data Release Injunction with law firm Moss & Moss LLP
Similar to Airbnb Data Release Injunction with law firm Moss & Moss LLP (20)
More from Michael McKay
More from Michael McKay (6)
Recently uploaded
Recently uploaded (20)
Airbnb Data Release Injunction with law firm Moss & Moss LLP
- 2. Local Law 2018/146: “Home Sharing Surveillance Ordinance” What the new Airbnb data sharing law means for you
- 3. Moss & Moss LLP 381 Park Avenue South, Suite 1220 New York, New York 10016 www.mossandmoss.com 212 644 1000 jmoss@mossandmoss.com John O. C. Moss David M. Deemer Brandon A. McKenzie
- 4. Technical/Legal Arguments Against the Ordinance Argument UPHELD by the Court: • Violation of the 4th Amendment Prohibition Against Unlawful Search and Seizure 1 Arguments made but DISMISSED by the Court regarding the injunction: • Violation of Article I, Section 12 of the New York Constitution (New York 4th Amendment corollary) • The ordinance is preempted by the Stored Communications Act2: The Ordinance required divulgence of data without a subpoena or legal process, and consent is manufactured (that is, consent is not actually given but is forced) • Violation of the 1st Amendment – Manufactured Consent and Forced Dissemination of Involuntary Messaging (that is, making the booking channels/platforms tell their hosts certain information against their wishes) Airbnb, Inc. v. City of New York HomeAway.com, Inc. v. City of New York
- 5. Current Outcome • Preliminary injunction granted on 4th Amendment grounds (only) as to the February 2nd enactment of the law; • Any motion to amend or join parties shall be filed within 30 days of the order; • The parties shall complete initial disclosures within 14 days of the order; • All fact discovery (meaning, exchange of factual information) is to be completed within 100 days of the order, and any expert discovery shall be completed within 145 days of the order; and, • The case management conference1 is scheduled for May 10, 2019, at 2:30 PM.
- 6. • Listing Address • Host’s Full Legal Name • Host Phone Number • Host Email Address • Listing URL • Type of Rental (Entire Home or Private Room) • Total number of days that the listing was rented during the review period • Total amount of fees received by the channel for each rental • If the channel collects the rental fee for the host, how much was collected* • NOTE: If the channel collects the “Rent,” then the channel must also share the Host’s (anonymized, if possible) bank account number(s) and account name(s). Proposed Data to be Disclosed (to Mayor’s Office of Special Enforcement)
- 7. Booking Service: An entity that (1) “provides one or more online, computer or application- based platforms that individually or collectively can be used to (i) list or advertise offers for short-term rentals, and (ii) either accept such offers, or reserve or pay for such rentals; and (2) [c]harges, collects or receives a fee for the use of such a platform or for provision of any service in connection with a short-term rental. Who is Responsible? Penalties (Per Violation): The greater of $1,500 or all fees collected for the applicable listing during the preceding year
- 8. • Multiple Dwelling Law • Advertising Law • NYC Zoning Code • Business Licensing • Certificate of Occupancy • Roommate Exceptions • Housing Maintenance Code • Housing Safety (Fire Code, Locks, Smoke Detectors) • Lease Rules • Condo/Coop Building Rules/Bylaws • One Host, One Home (Airbnb Policy) Legal Considerations Today
- 9. • Citations • Hefty Fines / Civil Penalties • Administrative Hearings • Eviction • Civil Liability from Landlords • Termination of Airbnb Accounts Common Outcomes
- 10. • Sublandlords (Renters) • Coop Shareholders • Condo Residents • Landlords • Homeowners Who is at Risk?
- 11. Basic Strategies • Scrub listing(s) and content; Stop Airbnb’ing • Move your listings to an Airbnb-friendly jurisdiction like Jersey City (talk to Mike!) • Consider long-term tenants • List a private room if your home is eligible for the “roommate exception” • Modify your Airbnb host and listing data • Modify any management or co-hosting agreements and terms of service and determine appropriate assignment of responsibility • Mitigate liability through corporate entities • Take steps with a professional to ensure compliance (Engineer, Zoning, and Licensing/Attorney)
- 12. What to do if you’re targeted? • Seek expert advice from an attorney • Do not let enforcement officers into your home without a warrant • Do not admit fault • Cease any potentially illegal activity
- 13. Thank you!
Editor's Notes
- Under the ordinance, platforms are compelled to turn over protected information without pre-compliance review before a neutral decision maker. The Ordinance mandates a warrantless seizure of business records; that is, there is no showing of probable cause for the voluminous data requested which is generally prohibited by the 4th Amendment of the Constitution which generally protects parties from having to provide information to policing authorities without a reasonable basis/probable cause. When an administrative agency subpoenas corporate books or records, the Fourth Amendment requires that the subpoena be sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome. Under the SCA, “a provider of remote computer services or electronic communication services to the public shall not knowingly divulge a record or other information pertaining to a subscriber or customer of such service . . . to any governmental entity” unless the user consents or other legal process is observed The purpose of a preliminary injunction is to keep the parties, while the suit is pending, as much as possible in the respective positions they occupied when the suit began and to preserve the court's ability to render a meaningful decision after a trial on the merits. Airbnb and HomeAway argue primarily that the Ordinance will cause ongoing violations of their constitutional rights. They also argue that it will force them to incur heavy compliance costs and/or civil fines for noncompliance. In contrast, they argue, a preliminary injunction will not prejudice the City, because, while the Ordinance’s legality is litigated on a full record, the City can continue to investigate violations of the Multiple Dwelling Laws using conventional information-gathering tools such as targeted subpoenas.
- Case management conferences are held by the Court with appearances by attorneys for all the parties and are primarily for discussing scheduling and timeframes leading towards setting a date for trial.
- NOTE: Under the proposed rules, each platform must submit monthly reports to OSE. Failure to comply results in civil penalties enforceable before the office of administrative trials and hearings or a court of competent jurisdiction. Information submitted to OSE is to be kept in the confidence of OSE unless otherwise required by federal, state, or local law or under the New York Freedom of Information Law unless OSE determines that such disclosure would constitute an unwarranted invasion of personal privacy. If any part of a disclosure would constitute such an invasion, that portion would be omitted from the disclosure. OSE would retain the records for the investigation period or three years.
- Craig’s List is exempt because they don’t collect a fee.