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Boston Denied Peek at Airbnb Occupancy Rates

Airbnb persuaded a federal judge Friday to block new regulations in Boston that would require it to divulge how many nights each month its Boston rentals are occupied.

BOSTON (CN) - Airbnb persuaded a federal judge Friday to block new regulations in Boston that would require it to divulge how many nights each month its Boston rentals are occupied.

Boston enacted the rules as part of a regulation on short-term rentals in June 2018. Among other provisions, the new policy limits the types of properties that can be used for short-term rentals, caps how many days a year a property can be rented out, requires owners to register their short-term rentals with the city, and established fines and penalties for owners that do not comply.

Airbnb filed suit five months later, objecting to Boston’s new data-sharing requirements, an enforcement provision and finally a rule that would levy penalties against the website for accepting noncompliant listings.

U.S. District Judge Leo Sorokin granted an injunction Friday that puts some of these rules on hold, but noted that Boston conceded the argument in each of the now-blocked policies.

One of the policies at issue involved data sharing. Though Sorokin upheld the requirements that Airbnb disclose listing locations and type (i.e. room or entire unit), he found Boston is not entitled to statistics about the occupancy rates.

“The court finds Airbnb has a reasonable expectation of privacy in the nonpublic usage data for its listings — especially when paired with additional information such as the location of the unit — and that the city cannot lawfully require disclosure of that information without the protections guaranteed by the Fourth Amendment,” the ruling states.

Boston also conceded the challenge over its enforcement provision, which would have compelled Airbnb to monitor and remove listings or be banished from the city.

“In light of the city’s concessions, the court finds that Airbnb has shown it is likely to succeed on the merits of its claim that the enforcement provision is preempted by § 230 of the CDA,” Sorokin wrote, using an abbreviation for the Communications Decency Act. “The court further finds that Airbnb has established it would be irreparably harmed if it were required to comply with an unlawful mandate, and that the city’s ability to enforce the rest of the ordinance against hosts using Airbnb substantially minimizes any hardship the city faces if the enforcement provision is enjoined.”

Sorokin did deny Airbnb an injunction on the penalties provision. 

“The penalties provision directly and exclusively regulates economic activity – the collection of fees for booking illegal short-term rentals – not speech or other expressive conduct,” the 18-page ruling states. “It is part of an effort by the city to regulate its housing and rental market. ... The penalties provision does not require Airbnb to edit or monitor the speech of others; rather, it permits Airbnb ‘to decide how best to comply with the prohibition on [collecting fees from] booking unlawful transactions.’ In these circumstances, Airbnb has not established a likelihood that either the inevitable effect or the stated purpose of the penalties provision implicates the First Amendment.”

Boston City Councilor Michelle Wu applauded the ruling as an important victory for city governments everywhere.”

“The ruling recognizes that Airbnb and other short-term rental platforms aren’t just pass-through websites, but corporations that actively make money from booking fees on each listing,” Wu said in a statement. “City Government have the authority to regulate this and protect residential housing stock. This win gives other municipalities model language for short-term rental regs that can protect against Airbnb’s aggressive threats of litigation.”

Airbnb meanwhile took the ruling in stride.

"We appreciate the court’s decision and its recognition of the protections afforded by established federal law as to platform immunity and privacy,” a representative for the company said in an email. “We hope to continue working with the city to find a path forward for home sharing and for our community here in Boston.”

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