It is possible that if the Ninth Circuit panel truly realized how badly it messed up Section 230 it might have thought twice about it. So we’ve asked the court to give it a second thought. As did Airbnb and Homeaway, who were most immediately affected by the Ninth Circuit’s recent decision in their challenge of the Santa Monica ordinance that, like the San Francisco ordinance, and ordinances increasingly sprouting up around the country, seeks to make them liable for their users’ expression.
The problem: that’s exactly what Section 230 is supposed to prevent – holding a platform liable for user generated content that is wrongful in some way. If Santa Monica, San Francisco, and all those other cities want to make it illegal for people to list homes to rent, that’s fine. It may or may not be good local policy, but it won’t break the Internet. What breaks the Internet is when the law doesn’t just make people legally responsible for their own expression but makes the platform they used to express it liable for it too. Section 230 is supposed to prevent that, because if platforms can be held liable for all the myriad things that can be wrong with all the enormous amounts of user expression they intermediate, then they won’t be able to be platforms anymore. It will simply be too expensive to mitigate and manage this risk, at least not in a way that doesn’t result in enormous amounts of censorship of user content that isn’t even legally wrongful at all.
So Airbnb and Homeaway filed a petition for rehearing and rehearing en banc to ask the Ninth Circuit to review their case again, and last week the Copia Institute, along with the R Street Institute, filed an amicus brief in support of their petition. In our brief we reminded the court of what we have discussed here. First, that threatening platforms with liability forces platforms to have to monitor all their user expression, which may or may not even be possible, and at the expense of any monitoring that might be more effective. For instance, in this case, all these cities are asking Airbnb and Homeaway to ensure that every listing it allows to be rented be compliant with the registration requirement, but it might be better if instead they could focus their resources on building a more usable and secure platform, helping to eliminate fraud, or working to satisfy any other priority that would benefit the public more. Threatening platforms with liability for user content inevitably co-opts platforms’ resources, diverting them away from the sort of beneficial monitoring Congress tried to incentivize them to do with Section 230 and into monitoring that is solely self-protective.
Secondly, it may likely not even be possible for platforms to do enough monitoring to protect themselves. Although the Ninth Circuit’s decision spoke to the Santa Monica ordinance, there is nothing about the decision that is limited to this specific ordinance in this specific city. A core problem with the decision is the degree to which the court minimized how difficult it will be for Airbnb and Homeaway to even just monitor their user listings to see if they comply with even just this registration requirement in even just this city. But other cities now have ordinances too, thus vastly expanding the task. There is also nothing in the decision that limits what the ordinance can demand for compliance – today it may be registration, but tomorrow it might be habitability concerns, which are even more infeasible for platforms to police, or any other arbitrary policy demand. And there is nothing limiting this tearing open of Section 230’s pre-emption provision preventing local liability from being imposed on platforms for user content to just this sort of local regulation relating to short-term rental platforms. It opens the door to absolutely everything every jurisdiction everywhere can dream up to hold against platforms. There is no way for platforms to be able to successfully monitor every regulatory demand every jurisdiction can make on user expression, so they will either give up and shut down completely or adjust their practices to comply with the most restrictive jurisdiction’s demands and ultimately end up censoring an awful lot of perfectly lawful content – or both. Section 230 was supposed to prevent platforms from finding themselves in this impossible position, and our brief reminded the Ninth Circuit of this fact.
Also, as we previously pointed out, the fundamental error of the decision is that it split out facilitating the hosting of user expression from the facilitating of a transaction related to that user transaction. If this were a legitimate distinction, it would make it impossible to ever monetize one’s platform services, because every revenue transaction would always be connected to user content that could be wrongful. It doesn’t do anything to insulate platforms from the hosting of that content if it doesn’t insulate them from being able to afford to host that content. A decision like this one directly threatens the commercial viability of the Internet, which is definitely not what Congress wanted to have happen when it passed Section 230 in order expressly to protect that economic vitality.