Case: 18-55367, 04/25/2018, ID: 10850613, DktEntry: 17, Page 1 of 38

No. 18-55367

In the United States Court of Appeals
for the Ninth Circuit
HOMEAWAY.COM, INC. AND AIRBNB, INC.,
Plaintiffs–Appellants,

v.
CITY OF SANTA MONICA,

Defendant–Appellee.

BRIEF OF CHRIS COX, FORMER MEMBER OF CONGRESS
AND CO-AUTHOR OF CDA SECTION 230, AND NETCHOICE
AS AMICI CURIAE IN SUPPORT OF PLAINTIFFS AND REVERSAL
On Appeal from the United States District Court
for the Central District of California
Nos. 2:16-cv-6641, 2:16-cv-6645
Hon. Otis D. Wright II
David Salmons
Bryan Killian
James Nelson
MORGAN, LEWIS & BOCKIUS LLP
1111 Pennsylvania Avenue, NW
Washington, D.C. 20004
T. 202.739.3000
F. 202.739.3001
david.salmons@morganlewis.com
bryan.killian@morganlewis.com
james.nelson@morganlewis.com
Attorneys for Amici Curiae
Chris Cox and NetChoice

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CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1(a), Amicus Curiae
NetChoice is a trade association which has no parent corporation and no corporation
owns 10% or more of its stock.
Dated: April 25, 2018

/s/ David Salmons
David Salmons
Attorney for Amici Curiae
Chris Cox and NetChoice

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TABLE OF CONTENTS
Page
CORPORATE DISCLOSURE STATEMENT .........................................................i
TABLE OF AUTHORITIES .................................................................................. iii
INTERESTS OF AMICI CURIAE ............................................................................1
INTRODUCTION AND LEGISLATIVE HISTORY .............................................2
A.

Background ..........................................................................................2

B.

The Prodigy and CompuServe Cases ...................................................3

C.

Creating Section 230 and Its Goals ......................................................4

D.

The Importance of Section 230 for User-Generated Content .............. 7

E.

Rejecting the Policy of Requiring Platforms to Monitor Content ....... 8

F.

Preempting State and Local Law .......................................................12

ARGUMENT ..........................................................................................................13
I.

In Enacting Section 230, Congress Decided It Would Be
Unreasonable for the Law to Require Internet Platforms to
Monitor Third-Party Content .............................................................13

II.

The Santa Monica Ordinance Requires Internet Platforms to
Monitor Third-Party Content in Violation of Section 230.................15

III.

The Santa Monica Ordinance Would Impose a ‘Bulletin Board’
Model on Websites, the Precise Holding Section 230 Overruled ......19

IV.

Upholding the Santa Monica Ordinance Will Open the Door to
Similar Requirements by Other Municipalities, Increasing the
Burden of
Monitoring Third-Party Content That Section
230 Prohibits.......................................................................................25

CONCLUSION .......................................................................................................28
CERTIFICATE OF COMPLIANCE ......................................................................30
CERTIFICATE OF SERVICE ...............................................................................31

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TABLE OF AUTHORITIES
Page(s)
CASES
Airbnb, Inc. v. City & County of San Francisco,
217 F. Supp. 3d 1066 (N.D. Cal. 2016) ..............................................................25
Batzel v. Smith,
333 F.3d 1018 (9th Cir. 2003) ..................................................................9, 23, 25
Cubby, Inc. v. CompuServe, Inc.,
776 F. Supp. 135 (S.D.N.Y. 1991) ....................................................................... 4
Doe v. Internet Brands, Inc.,
824 F.3d 846 (9th Cir. 2016) ........................................................................14, 16
Donaher, III v. Vannini,
No. CV-16-0213, 2017 WL 4518378 (Me. Super. Ct. Aug. 18,
2017) ...................................................................................................................22
Fair Housing Council of San Fernando Valley v. Roommates.com,
LLC,
521 F.3d 1157 (9th Cir. 2008) ......................................................................14, 26
Gentry v. eBay, Inc.,
99 Cal. App. 4th 816 (2002) ...............................................................................22
Hill v. StubHub, Inc.,
727 S.E.2d 550 (N.C. Ct. App. 2012) ...........................................................20, 21
Inman v. Technicolor USA, Inc.,
No. CIV.A. 11-666, 2011 WL 5829024 (W.D. Pa. Nov. 18, 2011)................... 22
Jurin v. Google Inc.,
695 F. Supp. 2d 1117 (E.D. Cal. 2010) ..............................................................23
La Park La Brea A LLC v. Airbnb, Inc.,
285 F. Supp. 3d 1097 (C.D. Cal. 2017) ..................................................20, 21, 22
MDA City Apartments, LLC v. Airbnb, Inc.,
No. 17 CH 9980, 2018 WL 910831 (Ill. Cir. Ct. Feb. 14, 2018) .......................22
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TABLE OF AUTHORITIES
(continued)

Page(s)

Reno v. Am. Civil Liberties Union,
521 U.S. 844 (1997) ..............................................................................................6
Stoner v. eBay, Inc.,
No. 305666, 2000 WL 1705637 (Cal. Super. Ct. Nov. 1, 2000) ........................21
Stratton Oakmont v. Prodigy Servs. Co.,
1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995) .................................3, 4, 12, 24
Zeran v. Am. Online, Inc.,
129 F.3d 327 (4th Cir. 1997) ..............................................................................15
CONSTITUTIONAL PROVISIONS & STATUTES
47 U.S.C. § 230 .................................................................................................passim
City of Santa Monica Ordinance
2535CCS ......................................................................................................passim
§ 6.20.050............................................................................................................16
§ 6.20.100............................................................................................................18
Internet Tax Freedom Act, 47 U.S.C. § 151 note ....................................................27
Santa Cruz Ordinance No. 2017-18, http://www.cityofsantacruz.com/
home/showdocument?id=64619 .........................................................................25
Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56
(1996) ................................................................................................................3, 6
U.S. Const. amend I ...............................................................................................6, 9
RULES
Fed. R. App. P. 29(a) .................................................................................................1
OTHER AUTHORITIES
141 Cong. Rec. H8468–72 (August 4, 1995) ...................................................passim
144 Cong. Rec. E1288-03 (June 23, 1998) ..............................................................27
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TABLE OF AUTHORITIES
(continued)

Page(s)

Ben Lane, Seattle passes sweeping short-term rental laws, limits
Airbnb hosts to two units: Hosts must also be licensed by city,
HOUSINGWIRE (Dec. 13, 2017), https://www.housingwire.com/
articles/42078-seattle-passes-sweeping-short-term-rental-lawslimits-airbnb-hosts-to-two-units .........................................................................25
Gaurav Kumar, 50 Stats About 9 Emerging Content Marketing Trends
for 2016, SEMRUSH BLOG (Dec. 29, 2015), https://www.semrush.
com/blog/50-stats-about-9-emerging-content-marketing-trends-for2016.......................................................................................................................8
H.R. Conf. Rep. No. 104-458 (1996).......................................................................23
Internet Freedom and Family Empowerment Act, H.R. 1978, 104
Cong. (1995) .........................................................................................................5
Kimberlee Morrison, Why Consumers Share User-Generated Content,
ADWEEK (May 17, 2016), http://www.adweek.com/digital/whyconsumers-share-user-generated-content-infographic.......................................... 8
Milo Geyelin, New York judge rules Prodigy responsible for on-line
content, WALL ST. J., May 26, 1995 ..................................................................... 3
Nancy Scola, Sen. Ron Wyden: Uber should be as unfettered as
Facebook, WASH. POST (July 10, 2014), https://www.
washingtonpost.com/news/the-switch/wp/2014/07/10/sen-ronwyden-uber-should-be-as-unfettered-as-facebook .............................................24
Remarks by President Obama at an Entrepreneurship and Opportunity
Event, Havana, Cuba (Mar. 21, 2016), https://obamawhitehouse.
archives.gov/the-press-office/2016/03/21/remarks-presidentobama-entrepreneurship-and-opportunity-event-havana ...................................24
S. Rep. No. 104-230 (1996) .....................................................................................23

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TABLE OF AUTHORITIES
(continued)

Page(s)

Yin Wu, What Are Some Interesting Statistics About Online
Consumer Reviews? (Mar. 26, 2013), http://www.dr4ward.com/
dr4ward/2013/03/what-are-some-interesting-statistics-aboutonline-consumer-reviews-infographic.html.......................................................... 8

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INTERESTS OF AMICI CURIAE 1
Chris Cox is a former United States Representative (R-CA), who with current
United States Senator Ron Wyden (D-OR) is the co-author of Section 230 of the
Communications Decency Act (“CDA”), 47 U.S.C. § 230 (“Section 230”). The Act
provides that Internet platforms do not have a duty to monitor material posted by
third parties. Mr. Cox has for many years been a leading participant in developments
in the law under Section 230 and in congressional deliberations on these issues. He
is thus able to bring to the attention of the Court relevant matters not already addressed by the parties.
NetChoice is a national trade association of e-commerce and online businesses who share the goal of promoting convenience, choice, and commerce on the
Internet. For over a decade, NetChoice has worked to increase consumer access and
options via the Internet, while minimizing burdens on small businesses that are making the Internet more accessible and useful.
Based on their background and experience with the enactment and purposes
of Section 230, amici are able to provide information that is important to the Court’s

This brief is submitted pursuant to Rule 29(a) of the Federal Rules of Appellate
Procedure with the consent of all parties. No party or party’s counsel authored this
brief in whole or in part or contributed money that was intended to fund preparing
or submitting the brief. No person other than amici curiae or their counsel contributed money intended to fund preparation or submission of this brief.
1

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consideration of how this federal statute applies to the municipal ordinance at issue
in the case.
INTRODUCTION AND LEGISLATIVE HISTORY
A.

Background

Section 230 was signed into law more than 20 years ago. When U.S. Representatives Chris Cox (R-CA) and Ron Wyden (D-OR) conceptualized the law in
1995, roughly 20 million American adults had access to the Internet, compared to
the 4 billion users around the world today.
Even at this early stage in the Internet’s development, this essential aspect of
online activity was clear: many users converge through one portal. The difference
between newspapers and magazines, on the one hand, and the World Wide Web, on
the other hand, was striking. In the print world, editors reviewed and cataloged editorial content. On the Web, users themselves created content which became accessible to others immediately.
While the volume of users was only in the millions, not the billions as today,
it was evident to almost every user of the Web even then that no group of human
beings would ever be able to keep pace with the growth of user-generated content
on the Web. For the Internet to function to its potential, Internet platforms could not
be expected to monitor content created by website users. The legal rules of the analog world would have to be refashioned.
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At the time, not all in Congress were users of or familiar with the Web. But
some were, including Representatives Cox and Wyden. Their experience and their
desire to ensure that this technology flourished led to Section 230 of the CDA, Title
V of the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (1996).
B.

The Prodigy and CompuServe Cases

In 1995, on a flight from California to Washington, DC during a regular session of Congress, Representative Cox read a Wall Street Journal article about a New
York Superior Court case that troubled him deeply. See Milo Geyelin, New York
judge rules Prodigy responsible for on-line content, WALL ST. J., May 26, 1995. The
case involved a bulletin board post on the Prodigy web service by an unknown user.
The post said disparaging things about an investment bank. The bank filed suit for
libel but couldn’t locate the individual who wrote the post. So instead, the bank
sought damages from Prodigy, the site that hosted the bulletin board. See Stratton
Oakmont v. Prodigy Servs. Co., 1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995).
Up until then, the courts had not permitted such claims for third party liability.
In 1991, a federal district court in New York held that CompuServe was not liable
in circumstances like the Prodigy case. The court reasoned that CompuServe “ha[d]
no opportunity to review [the] contents” of the publication at issue before it was
uploaded “into CompuServe’s computer banks,” and therefore was not subject to

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publisher liability for the third party content. Cubby, Inc. v. CompuServe, Inc., 776
F. Supp. 135, 140 & n.1 (S.D.N.Y. 1991).
But in the 1995 New York Supreme Court case, the court distinguished the
CompuServe precedent. The reason the court offered was that unlike CompuServe,
Prodigy sought to impose general rules of civility on its message boards and in its
forums. While Prodigy had even more users than CompuServe and thus even less
ability to screen material on its system, the fact that it announced such rules and
occasionally enforced them was the judge’s basis for subjecting it to liability that
CompuServe didn’t face.
The perverse incentive this case established was clear: Internet platforms
should avoid even modest efforts to police their sites. If the holding of the case
didn’t make this clear, the damage award did: Prodigy was held liable for $200
million. Prodigy Servs., 1995 WL 323710.
Representative Cox immediately roughed out an outline for a bill to overturn
the holding in the Prodigy case.
C.

Creating Section 230 and Its Goals

The first person Representative Cox turned to as a legislative partner on his
proposed bill was Representative Wyden. As this was a novel question of policy
that had not hardened into partisan disagreement (as was too often the case with so

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many other issues), they knew they could count on a fair consideration of the issues
from their colleagues on both sides of the aisle.
For the better part of a year, the two lawmakers—one a Republican, the other
a Democrat—conducted outreach and education on the challenging issues involved.
In the process, they built not only overwhelming support, but also a much deeper
understanding of the unique aspects of the Internet that require clear legal rules for
it to function.
The rule established in the bill, which they called the Internet Freedom and
Family Empowerment Act, H.R. 1978, 104 Cong. (1995), was crystal clear: the law
will recognize that it would be unreasonable to require Internet platforms to monitor
content created by website users. Correlatively, the law will impose full responsibility on the website users to comply with all laws, both civil and criminal, in connection with their user-generated content. It will not shift that responsibility to Internet platforms, because doing so would directly interfere with the essential functioning of the Internet.
The bill became law after the House added it as an amendment during floor
consideration of the CDA in August 1995. Reflecting its enormous bipartisan support, the Cox-Wyden amendment passed the House by a vote of 420-4. The CDA,

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including the Cox-Wyden amendment, was enacted the following year as part of the
Telecommunications Act of 1996. 2
If, in light of the volume of content that crossed Internet platforms in 1995, it
would have been unreasonable for the law to require websites to monitor user-generated content, perforce that is the case in 2018. With every website accessible to
billions of Internet users around the planet, and many websites hosting millions of
users generating their own content, the fundamental principle of Section 230 that
websites should not be liable for monitoring user-generated content is even more
relevant today than ever.
So too is Section 230’s corollary of this principle: its “Good Samaritan” provision. 47 U.S.C. § 230(c)(2)(A). If an Internet platform does review some of the
content and restricts it because it is obscene or otherwise objectionable, then the
platform does not thereby assume a duty to monitor all content. Obviously, this
exception would not be needed if Congress had intended to subject Internet platforms to legal and regulatory requirements that they monitor user-generated content.

Subsequently, the U.S. Supreme Court gutted the CDA’s indecency provisions,
which it found violated the First Amendment, leaving Section 230 as the enduring
landmark of that legislation. Reno v. American Civil Liberties Union, 521 U.S. 844
(1997).
6
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D.

The Importance of Section 230 for User-Generated Content

In simplest terms, Section 230 protects website operators that are not involved
in content creation from liability for content created by third party users. That protection from liability has not only become the foundation supporting sites like Yelp,
eBay, Facebook, Wikipedia, Amazon, Twitter, and other well-known web brands
that provide user-generated content, but also the entire Web 2.0 revolution through
which thousands of smaller innovative platforms have come to offer a range of socially useful services.
Without Section 230, social media platforms would be exposed to lawsuits for
users’ reviews of products, restaurants, books, and movies. Airbnb and HomeAway
would be exposed to lawsuits for users’ negative comments about a rented home.
Any service that connects buyers and sellers, workers and employers, content creators and website visitors, or victims and victims’ rights groups—or provides any
other interactive engagement opportunity one can imagine—could not continue to
function on the Internet displaying user-generated content.
Without user-generated content, many contending with hurricanes Maria,
Irma, and Harvey could not have found their loved ones. Every day, millions of
Americans watch user-generated “how to” and educational videos for everything
from healthcare to home maintenance to lifelong learning. Over 85% of businesses

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rely on user-generated content.3 The vast majority of Americans feel more comfortable buying a product after researching user-generated reviews, 4 and over 80% of
consumers find user-generated content helpful in making their purchasing decisions.5 User-generated content is also vital to law enforcement and social services.
Following the recent devastating Mexico earthquake, relief volunteers and rescue
workers used online forums to match people with supplies and services to victims
who needed life-saving help, directing them with real-time maps.
E.

Rejecting the Policy of Requiring Platforms to Monitor Content

When Section 230 was enacted in 1996, user-generated content was already
ubiquitous on the Internet. The creativity being demonstrated by websites and users
alike made it clear that online shopping was an enormously consumer-friendly use
of the new technology. Features such as CompuServe’s “electronic mall” and Prodigy’s mail-order stores were instantly popular. So too were messaging and email,
which in Prodigy’s case came with per-message transaction fees. Web businesses

Gaurav Kumar, 50 Stats About 9 Emerging Content Marketing Trends for 2016,
SEMRUSH BLOG (Dec. 29, 2015), https://www.semrush.com/blog/50-stats-about-9emerging-content-marketing-trends-for-2016.
3

Yin Wu, What Are Some Interesting Statistics About Online Consumer Reviews?,
DR4WARD.COM (Mar. 26, 2013), http://www.dr4ward.com/dr4ward/2013/03/whatare-some-interesting-statistics-about-online-consumer-reviews-infographic.html.
4

Kimberlee Morrison, Why Consumers Share User-Generated Content, ADWEEK
(May 17, 2016), http://www.adweek.com/digital/why-consumers-share-user-generated-content-infographic.
8

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such as CheckFree demonstrated as far back as 1996 that online bill payment was
not only feasible but convenient. Prodigy, America Online, and the fledgling Microsoft Network included features we know today as content delivery, each with a
different payment system.
The congressional authors had all of these iterations of Internet commerce in
mind in drafting and enacting what became Section 230. Representatives Cox and
Wyden added the Internet Freedom and Family Empowerment Act, the future Section 230, as an amendment to the CDA out of concern that requiring advance monitoring of user-generated content would hinder “First Amendment and e-commerce
interests on the Internet.” Batzel v. Smith, 333 F.3d 1018, 1028 (9th Cir. 2003), cert.
denied 541 U.S. 1085 (2004); see 141 Cong. Rec. H8468–72, H8478–79 (August 4,
1995).
Each of the commercial applications then flourishing on the web had an analog in the offline world, where each had its own attendant legal responsibilities.
Newspapers could be liable for defamation. Banks and brokers could be held responsible for knowing their customers. Advertisers were responsible under the Federal Trade Commission Act and state consumer laws for ensuring their content was
not deceptive and unfair. Merchandisers could be held liable for negligence, breach
of warranty, and in some cases even subjected to strict liability for defective products. In Section 230, Congress decided that while these rules would continue to
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apply on the Internet, they would not extend to making Internet platforms derivatively liable for user-generated content. Instead, the platforms would be protected
from liability unless they create the content themselves. To ensure the quintessentially interstate commerce of the Internet would be governed by a uniform national
policy, Section 230 outlawed all state and local requirements to the contrary: “No
cause of action may be brought and no liability may be imposed under any State or
local law that is inconsistent with this section.” 47 U.S.C. § 230(e)(3).
“There are other ways to address this problem” than the one adopted in Section 230, Representative Cox acknowledged when explaining his legislation on the
House floor. 141 Cong. Rec. H8470. Congress might have decided to treat what
Section 230 calls a “provider of interactive computer service” as the business partner
of the commercial users of its platform. This would have allowed the federal and
state governments to look to Internet platforms as well as their users to enforce legal
requirements applicable to the users of the online platforms. But viewing the Internet that way, Representative Cox said in his floor remarks, would “run head-on into
our approach.” Id.
The legislative history makes plain that Congress not only adopted a policy of
regulatory immunity for online platforms, it affirmatively rejected the alternative
policy of requiring platforms to monitor the legality of user-generated content.

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“About [that approach] let me simply say that there is a well-known road paved with
good intentions,” Representative Cox remarked. “We all know where it leads.” Id.
It is unquestionable that Congress fully endorsed Representative Cox’s views.
When the bill was debated, no member from either the Republican or Democratic
side could be found to speak against it. The debate time was therefore shared between Democratic and Republican supporters of the bill, a highly unusual procedure
for significant legislation. Id. at H8469.
Section 230 by its terms applies to legal responsibility of any type, whether
under civil or criminal state statutes and municipal ordinances. But the fact that the
legislation was included in the CDA, concerned with offenses including criminal
pornography, is a measure of how serious Congress was about immunizing Internet
platforms from state and local laws. Internet platforms were to be spared responsibility for monitoring third-party content even in these egregious cases.
A bipartisan supermajority of Congress did not support this policy because
they wished to give online commerce an advantage over offline businesses. Rather,
it is the inherent nature of Internet commerce that caused Congress to choose purposefully to make third parties and not Internet platforms responsible for compliance
with laws generally applicable to those third parties. Platform liability for user-generated content would rob the technology of its vast interstate and indeed global capability, which Congress decided to “embrace” and “welcome” not only because of
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its commercial potential but also “the opportunity for education and political discourse that it offers for all of us.” Id. at H8470. All of the unique benefits the
Internet provides are dependent upon platforms being able to facilitate communication among vast numbers of people without being required to review those communications individually. As Representative Cox observed during consideration of the
bill, “there is just too much going on” over Internet platforms “for that to be effective.” Id. at H8469. In Section 230, Congress very deliberately rejected the policy
alternative of requiring platforms to monitor third party content.
F.

Preempting State and Local Law

Throughout the history of the Internet, Congress has sought to strike the right
balance between opportunity and responsibility. Section 230 is such a balance—
holding content creators responsible for their own activity while protecting Internet
platforms from legal responsibility in connection with content created by others.
The plain language of Section 230 makes clear its purpose of preempting state
and local law. Why did Congress choose this course?
Most fundamentally, the essential purpose of Section 230 is to preempt state
law in favor of a uniform federal policy, applicable across the Internet, that avoids
results such as the state court decision in Prodigy. The Internet is the quintessential

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vehicle of interstate, and indeed international, commerce. Its packet-switched architecture, which can route even local messages via servers in different states, makes it
uniquely susceptible to multiple sources of conflicting state and local regulation.
Were every state and municipality free to adopt its own policy concerning
when an Internet platform must assume duties in connection with content created by
third party users, not only would compliance become oppressive, but the federal
policy itself could quickly be undone. In drafting Section 230, Representative Cox
sought to ensure that individual states and municipalities could not defeat the federal
policy by placing platform liability laws in their criminal codes, thus making Section
230 a nullity. Even state criminal law is preempted. (Because Congress is the appropriate body for maintaining the uniform national policy, the entirety of federal
criminal law enforcement is unaffected by Section 230.) Only state law that is consistent with the policy of Section 230 is unaffected by this broad preemption. 47
U.S.C. § 230(e)(3).
ARGUMENT
I.

In Enacting Section 230, Congress Decided It Would Be Unreasonable
for the Law to Require Internet Platforms to Monitor Third-Party
Content.
Section 230’s broad immunity shields Internet intermediaries from liability

for content generated and posted by third parties. Intermediaries may not “be treated

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as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1). As a result, they may not be required to
“monitor postings,” “remove any user content,” or change how they “publish[] or
monitor[] content.” Doe v. Internet Brands, Inc., 824 F.3d 846, 851 (9th Cir. 2016).
Any State or local law inconsistent with this broad directive is expressly preempted.
47 U.S.C. § 230(e)(3).
In Fair Housing Council of San Fernando Valley v. Roommates.com, LLC,
521 F.3d 1157, 1173–76 (9th Cir. 2008) (en banc), this Court observed that it would
“cut the heart out of section 230” to force a website to review third party content
individually. This Court’s analysis on this point corresponds precisely with congressional intent. As Representative Rick White observed during debate on Section
230, referring to Internet platforms: “There is no way that any of those entities, like
Prodigy, can take the responsibility [for all of the] information that is going to be
coming in to them from all manner of sources.” 141 Cong. Rec. H8471; see also id.
(Statement of Rep. Goodlatte) (emphasizing importance of not requiring platforms
to review or edit third-party content, calling that imposition “wrong”).
When the House voted to approve the future Section 230 by a near-unanimous
vote, it was because of its policy determination to embrace and encourage the unique

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character of Internet communications—a global, instantaneous, unfiltered conversation among millions of users—which would be disrupted if Internet platforms were
required to monitor and review user-generated content.
The inevitable consequence of attaching platform liability to user-generated
content is to force intermediaries to monitor everything posted on their sites. Congress understood that liability-driven monitoring would slow traffic on the Internet,
discourage the development of Internet platforms based on third party content, and
chill third-party speech as intermediaries attempt to avoid liability. See Zeran v. Am.
Online, Inc., 129 F.3d 327, 331 (4th Cir. 1997). Congress enacted Section 230 because the requirement to monitor and review user-generated content would degrade
the vibrant online forum for speech and for e-commerce that Congress wished to
embrace.
II.

The Santa Monica Ordinance Requires Internet Platforms to Monitor
Third-Party Content in Violation of Section 230.
While Section 230 accomplishes its purposes by freeing service providers

from the responsibility of monitoring third-party content, this is the very responsibility that City of Santa Monica Ordinance 2535CCS (the “Ordinance”) now impermissibly imposes on websites such as Airbnb and HomeAway.
The district court viewed the Ordinance as merely prohibiting Airbnb and
HomeAway “from facilitating business transactions.” Order at 10. But this prohibition is effected by making it illegal for websites to charge a fee when unlicensed
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users succeed in finding a renter. Ordinance § 6.20.050(b). There is only one way
for Airbnb or HomeAway to know whether a website user is licensed by the City of
Santa Monica. They will have to inquire in each individual case. The City does not
accept as sufficient that the website requires users to attest they have complied with
all laws and ordinances applicable to them. The Ordinance itself makes this clear
on its face. The plain effect of the Ordinance is to require websites to monitor and
review all online listings to determine whether each user is registered with the city.
To this Defendant responds superciliously that Airbnb and HomeAway are
“perfectly free to publish any listing they get . . . whether the unit is lawfully registered or not.” Defendant’s Opp. to Preliminary Injunction at 14. But the websites
risk fines and jail if they do so. Without first monitoring and reviewing all online
listings to determine whether each user is registered with the city, the websites will
have no way of knowing that a booking fee comes from a user who has not registered
with Santa Monica. If it does, it violates the Ordinance, triggering criminal penalties.
Santa Monica admits (because it must) that the requirement for websites to
review each users’ listings against the City’s registry is specifically stated in the
Ordinance. ER-617:23–25. Because complying with the Ordinance requires reviewing and monitoring third party listings on the Plaintiffs’ sites, the Ordinance
violates both the letter and purpose of Section 230. See Internet Brands, 824 F.3d
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at 852 (describing Section 230 as forbidding liability based on “efforts, or lack
thereof, to edit, monitor, or remove user generated content” (emphasis added)).
The policy reason behind Section 230’s protection of websites from state and
local requirements to monitor and review content is well illustrated by this case.
Requiring that Airbnb and HomeAway monitor and review each third party advertisement creates an extraordinary bottleneck, obstructing and slowing down what is
inherently the high-volume, geographically unlimited, instantaneous flow of information that is the Internet. This is why Congress, in Section 230, prohibited such
state and local laws and ordinances.
One thing is certain. If a website has to individually screen each posting by
every user, the purpose of Section 230 is defeated. Congress intended that the third
party user, not the Internet platform, should be responsible for the legality of the
information it posts online (in this case, compliance with municipal licensing requirements). Both the purpose and effect of the Ordinance are to require Airbnb and
HomeAway to ensure that third parties using their websites are themselves complying with the law. This is effectively a transfer of each website user’s legal responsibility to the Internet platform. It is the opposite of what Section 230 provides.
Santa Monica has gone to considerable lengths to characterize the Ordinance
as “unrelated” to the essential fact that Airbnb and HomeAway are websites pro-

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tected by Section 230 from having to monitor user-generated content. See, e.g., Defendant’s Opp. to Preliminary Injunction at 10. Instead, Defendant claims the Ordinance regulates Airbnb’s and HomeAway’s “conduct.” This is casuistry. What
might that conduct be? In Defendant’s words, it is the act of “receiving a fee” from
an unlicensed user of the website. Id. at 16. Since it would be legal to receive a fee
from a licensed user, the question of legality or illegality hangs on whether the website user is itself in compliance or violation of the Ordinance. This Airbnb and
HomeAway must determine on a case-by-case basis (if they desire to collect any
revenue from booking rentals, the very purpose of their online business). What the
Ordinance actually does is make the website responsible for third party users’ compliance with the law.
If further proof were needed that the Ordinance requires a one-at-a-time review of every online listing, it may be found in the criminal sanctions for noncompliance. Not only are they harsh—the penalties for an Airbnb or HomeAway employee include half a year in jail—but they are specifically imposed on a per-violation basis. Ordinance § 6.20.100(a). Each rental by an unlicensed website user constitutes a separate violation and an additional six months in jail for one or more individuals at the website.
Not only must the websites constantly review each new posting on their platforms, but as a practical matter they must take down content posted by unlicensed
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users. Otherwise, potential renters would quickly become frustrated with a website
that cannot fulfill its purpose of providing rentals. Were Airbnb or HomeAway to
wait until a website user chooses a property, and then check it against Santa Monica’s registry, the users would discover only after the fact that the website cannot
complete the transaction. So these websites literally will have to review each and
every posting by users in advance of displaying it on the Internet. They will have to
check it against the city’s registry, and take down those they find have not complied
with Santa Monica’s requirements.
The Ordinance requires Internet platforms to monitor and review user generated content in this very direct way, in violation of Section 230.
III.

The Santa Monica Ordinance Would Impose a ‘Bulletin Board’ Model
on Websites, the Precise Holding Section 230 Overruled.
In reasoning that Section 230 isn’t implicated by local laws that tie liability to

booking transactions, the district court favored older Internet-publishing models
such as Craigslist “which do not charge for booking services, and act solely as publishers of advertisements.” Order at 4. This revives the discredited reasoning of the
New York trial court in Prodigy Services, which Section 230 expressly overruled.
As the business models of Airbnb and HomeAway demonstrate, there are different ways for websites based on user-generated content to charge for their services.
They may charge a fee only when users successfully connect and transactions take
place, or they may charge a fee to publish on the site. Airbnb and HomeAway both
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follow the first model; HomeAway also follows the second. From the standpoint of
Section 230, the choice of model is irrelevant, since in neither case can a website be
required to monitor and review third party content.
But from the standpoint of the Ordinance and the district court’s reading of it,
a platform’s choice of payment model is enormously consequential. By banning
payment from unregistered users, the Ordinance in effect requires monitoring of all
user-generated content by holding the platform liable for content posted by third
parties.
Many cases (all of them ignored by the district court) have held that this violates Section 230. This is because punishing platforms for allowing certain transactions on their sites makes them responsible for the content and conduct of third parties. Section 230’s protections are regularly applied to “websites that process payments and transactions in connection with third party listings,” even when liability
is purportedly based upon the conduct of the transaction rather than the publication
of the listing. La Park La Brea A LLC v. Airbnb, Inc., 285 F. Supp. 3d 1097, 1106
(C.D. Cal. 2017).
For example, in Hill v. StubHub, Inc., StubHub was sued for facilitating an
allegedly illegal sale of tickets. 727 S.E.2d 550, 562–63 (N.C. Ct. App. 2012). Just
like Airbnb and HomeAway, StubHub charges a fee when a sale of tickets occurs.

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Id. Applying Section 230, the court held the “website’s payment processing responsibilities were ‘irrelevant for purposes of determining the extent to which [StubHub]
was entitled to immunity.’” La Park, 285 F. Supp. 3d at 1106 (quoting Hill, 727
S.E.2d at 562–63). The court emphasized that it was the user of the website who
illegally sold the tickets above face value. He “had complete control over the content
at issue.” Id. (emphasis added).
Users of the Airbnb and HomeAway websites similarly have complete control
over whether they are registered with Santa Monica, and users are responsible for
the content of their listings including the description of their registration status. Requiring the websites to monitor all rental listings and independently investigate
whether each third-party user is actually registered is a blatant attempt to treat the
websites as publishers responsible for content created by others.
Likewise, eBay has been sued for facilitating allegedly illegal sales. See
Stoner v. eBay, Inc., 2000 WL 1705637, at *2 (Cal. Super. Ct. Nov. 1, 2000). Like
HomeAway and Airbnb, eBay not only provides a platform that connects sellers and
buyers, but also “provides . . . [facilitation] services for which it charges a fee.” Id.
at *2–3. On these facts, the court concluded Section 230 immunity applied. The
court specifically rejected the distinction embraced by the district court in this case
between websites “based on a sales model” (such as eBay or StubHub) and “services
which are based on bulletin board models” (such as Craigslist). Id. at *3. Nothing
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in Section 230 or the cases interpreting it, the court held, limits its application to
mere bulletin board models. Accord Gentry v. eBay, Inc., 99 Cal. App. 4th 816, 831
(2002).
In Inman v. Technicolor USA, Inc., No. CIV.A. 11-666, 2011 WL 5829024,
at *7 (W.D. Pa. Nov. 18, 2011), the court surveyed other cases and concluded that a
website’s failure “to prevent [third-party] conduct”—including conducting an illegal
sale—“would run afoul of the immunity provisions of section 230.” Id. The court
specifically rejected the argument that eBay’s facilitation of “business transactions”
meant its liability would be based on its own conduct rather than users’ content.
Such liability is ultimately based on “information disseminated through a website”
by third parties, and so it is preempted by Section 230. Id. at *6–7.
The district court also ignored cases that applied this logic directly to Airbnb.
In La Park, the court held Airbnb itself is immune from liability even if the claim is
based on its profiting from transactions rather than the listings themselves. 285 F.
Supp. 3d at 1105–06. In MDA City Apartments, LLC v. Airbnb, Inc., an Illinois court
held that Airbnb’s “processing payments and transactions in connection with listings
created by third parties” does not remove Section 230 immunity. 2018 WL 910831,
at *14 (Ill. Cir. Ct. Feb. 14, 2018). In Donaher, III v. Vannini, a Maine court held
Airbnb’s payment processing business does not strip it of immunity under Section
230. 2017 WL 4518378, at *3 (Me. Super. Ct. Aug. 18, 2017).
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In improperly reasoning that Santa Monica can avoid Section 230 by tying
liability to booking transactions, the district court favored older Internet models such
as Craigslist (and CompuServe circa 1995). In this model, websites “do not charge
for booking services, and act solely as publishers of advertisements.” Order at 4
(emphasis added). But the very purpose of Section 230 was to obliterate any legal
distinction between the CompuServe model (which lacked the e-commerce features
of Prodigy and the then-emergent AOL) and more dynamically interactive platforms. See S. Rep. No. 104-230, at 194 (1996) (noting goal of overruling Prodigy
Services); H.R. Conf. Rep. No. 104-458, at 194 (1996) (same); 141 Cong. Rec. at
H8469–70 (same).
Congress intended to “promote the continued development of the Internet and
other interactive computer services” and “preserve the vibrant and competitive free
market” that the Internet had unleashed. 47 U.S.C. § 230(b)(1)–(2). Forcing websites to a Compuserve or Craigslist model would be the antithesis of the congressional purpose to “encourage open, robust, and creative use of the internet,” Jurin v.
Google Inc., 695 F. Supp. 2d 1117, 1123 (E.D. Cal. 2010), and the continued “development of e-commerce,” Batzel, 333 F.3d at 1027. Instead, it will slow commerce on the Internet, increase costs for websites and consumers, and restrict the
development of platform marketplaces. This is just what Congress hoped to avoid

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through Section 230. See Nancy Scola, Sen. Ron Wyden: Uber should be as unfettered as Facebook, WASH. POST (July 10, 2014) 6 (Sen. Wyden stressing the need to
encourage and not “stifle 21st century innovation”). 7
The district court, in essence, has revived the rule of the Prodigy case that
Section 230 overturned. It has done so by condoning the selective transfer of liability from third parties to any website that provides a service beyond mere transmission of information. What the district court thought saved the Ordinance (that it
leaves vacation rental listings on Craigslist and similar sites undisturbed while punishing the “transactions” on Airbnb and HomeAway) is actually what condemns the
Ordinance under Section 230.

https://www.washingtonpost.com/news/the-switch/wp/2014/07/10/sen-ron-wyden-uber-should-be-as-unfettered-as-facebook.
6

This sentiment from Section 230’s authors has been echoed in the modern Internet
era by President Barack Obama, who cited Airbnb as “a good example of the power
of the Internet . . . . Airbnb is using social media and the Internet in order to create a
buyer and a seller . . . . And so it’s . . . a good example of the potential that could be
unleashed.” Remarks by President Obama at an Entrepreneurship and Opportunity
Event, Havana, Cuba (Mar. 21, 2016), https://obamawhitehouse.archives.gov/thepress-office/2016/03/21/remarks-president-obama-entrepreneurship-and-opportunity-event-havana.
7

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IV.

Upholding the Santa Monica Ordinance Will Open the Door to Similar
Requirements by Other Municipalities, Increasing the Burden of
Monitoring Third-Party Content That Section 230 Prohibits.
The way will be clear for states, counties, and municipalities to avoid Section

230’s preemption if the Ordinance is upheld. As the district court noted, San Francisco has already adopted a similar ordinance. Order at 10 (citing Airbnb, Inc. v.
City and County of San Francisco, 217 F. Supp. 3d 1066, 1072 (N.D. Cal. 2016)).
Santa Cruz, California, and Seattle, Washington, have also adopted similar ordinances. See Santa Cruz Ordinance No. 2017-18; 8 Ben Lane, Seattle passes sweeping
short-term rental laws, limits Airbnb hosts to two units: Hosts must also be licensed
by city, HOUSINGWIRE (Dec. 13, 2017). 9 Other state, county, and local governments
would no doubt find that fining websites for their users’ infractions is more convenient than fining each individual who violates local laws. Given the unlimited geographic range of the Internet, unbounded by state or local jurisdiction, the aggregate
burden on an individual web platform would be multiplied exponentially. While one
monitoring requirement in one city may seem a tractable compliance burden, myriad
similar-but-not-identical regulations could easily damage or shut down Internet platforms. See Batzel, 333 F.3d at 1028.

8

Available at http://www.cityofsantacruz.com/home/showdocument?id=64619.

https://www.housingwire.com/articles/42078-seattle-passes-sweeping-short-termrental-laws-limits-airbnb-hosts-to-two-units.
25
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If prohibiting a website from “facilitating business transactions” (Order at 10)
succeeds in end-running Section 230 preemption, the same tactic could easily be
applied to websites in other areas of e-commerce to require them to monitor users’
compliance with local laws. Laws requiring eBay to monitor listings on its site for
counterfeit recordings could be construed as prohibitions against “facilitating illegal
sales.” Laws requiring StubHub to review every ticket posted on its site for scalped
tickets could be construed as prohibitions of illegal “business exchanges.” Laws
requiring Etsy to review all of its listings to ensure sellers are duly licensed could be
construed as targeting Etsy’s conduct rather than making Etsy liable for third-party
postings.
Unleashing an indeterminate number of jurisdictions to carve away the protections of Section 230 would undermine the law’s purpose much more effectively
than any single city can. The likely multiplication of potential claims against websites is one reason this Court has held that close cases must be resolved “in favor of
immunity” under Section 230, in order to prevent such a tide of Internet-hampering
ordinances. Roommates.com, 521 F.3d at 1174 (noting the failure to apply Section
230 immunity as intended will “forc[e] websites to face death by ten thousand duckbites, fighting off claims that they promoted or encouraged—or at least tacitly assented to—the illegality of third parties”).

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The accretion of burdens would be especially harmful to smaller websites.
Future startups, facing massive exposure to potential liability if they do not monitor
user content and take responsibility for third parties’ legal compliance, would encounter significant obstacles to capital formation. Not unreasonably, some might
abjure any business model reliant on third-party content.
Representatives Cox and Wyden pointed out, contemporaneously with the enactment of Section 230 and of companion Internet legislation they also co-authored,
the Internet Tax Freedom Act, 47 U.S.C. § 151 note, that the decentralized, packetswitched architecture of the Internet has no precedent in U.S. or global commerce.
While equally revolutionary when introduced, the telephone and telegraph are pointto-point communications. There is a point of origin and a terminus. A website, in
contrast, has a unique point of origin that is immediately and uninterruptedly exposed to billions of Internet users in every U.S. jurisdiction and around the planet.
This makes Internet commerce uniquely vulnerable to regulatory burdens in thousands of jurisdictions. So too does the fact that the Internet is utterly indifferent to
state borders. These characteristics of the Internet, Congress recognized, would subject this quintessentially interstate commerce to a confusing and burdensome patchwork of regulations by thousands of state, county, and municipal jurisdictions, unless federal policy remedied the situation. See 144 Cong. Rec. E1288-03 (June 23,
1998). These fundamental characteristics of the Internet were also cited by the
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White House under President Clinton as reasons for a preemptive national policy.
“The Framework for Global Electronic Commerce,” The White House, § I.1 (1998).
Today, some two decades after the enactment of Section 230, the essential
nature of the Internet has not changed in these respects. To the contrary, the significant growth in volume of traffic on websites such as Airbnb and HomeAway has
made the potential consequences of local regulation graver. Santa Monica’s attempt
to outsource its policing of third-party conduct to Internet services may make sense
from the City’s perspective, but the district court’s approval of the Ordinance is
wholly antithetical to Congress’s judgment that such services should be “unfettered
by . . . regulation.” 47 U.S.C. § 230(b)(2).
This Court’s reversal is necessary to apply Section 230 as intended by Congress, and to ensure that the way is not opened for other governments to impose
requirements similar to Santa Monica’s that would undermine Section 230 on a far
greater scale.
CONCLUSION
For the foregoing reasons, the Court should reverse the Order of the district
court, recognizing that because Section 230 preempts the Ordinance, Airbnb and
HomeAway are likely to succeed on the merits.
Dated: April 25, 2018

Respectfully submitted,
/s/ David Salmons
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David Salmons
Bryan Killian
James Nelson
MORGAN, LEWIS & BOCKIUS LLP
1111 Pennsylvania Avenue, NW
Washington, D.C. 20004
Attorneys for Amici Curiae
Chris Cox and NetChoice

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Form 8.

Certificate of Compliance Pursuant to 9th Circuit Rules 28.1-1(f),
29-2(c)(2) and (3), 32-1, 32-2 or 32-4 for Case Number 18-55367

Note: This form must be signed by the attorney or unrepresented litigant and attached to the end of the brief.
I certify that (check appropriate option):
This brief complies with the length limits permitted by Ninth Circuit Rule 28.1-1.
The brief is 6,347
words or
pages, excluding the portions exempted by Fed. R. App. P.
32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).
This brief complies with the length limits permitted by Ninth Circuit Rule 32-1.
The brief is
words or
pages, excluding the portions exempted by Fed. R. App. P.
32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).
This brief complies with the length limits permitted by Ninth Circuit Rule 32-2(b).
The brief is
words or
pages, excluding the portions exempted by Fed. R. App. P.
32(f), if applicable, and is filed by (1) separately represented parties; (2) a party or parties filing a
single brief in response to multiple briefs; or (3) a party or parties filing a single brief in response to a
longer joint brief filed under Rule 32-2(b). The brief's type size and type face comply with Fed. R. App. P.
32(a)(5) and (6).
This brief complies with the longer length limit authorized by court order dated
The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6). The brief is
words or
pages, excluding the portions exempted by Fed. R. App. P. 32(f), if applicable.
This brief is accompanied by a motion for leave to file a longer brief pursuant to Ninth Circuit Rule 32-2
(a) and is
words or
pages, excluding the portions exempted by Fed. R. App. P. 32
(f), if applicable. The brief’s type size and type face comply with Fed. R .App. P. 32(a)(5) and (6).
This brief is accompanied by a motion for leave to file a longer brief pursuant to Ninth Circuit Rule 29-2
(c)(2) or (3) and is
words or
pages, excluding the portions exempted by Fed. R.
App. P. 32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and
(6).
This brief complies with the length limits set forth at Ninth Circuit Rule 32-4.
The brief is
words or
pages, excluding the portions exempted by Fed. R. App. P.
32(f), if applicable. The brief’s type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).

Date

Signature of Attorney or
/s/ David Salmons
Unrepresented Litigant

Apr 25, 2018

("s/" plus typed name is acceptable for electronically-filed documents)
(Rev.12/1/16)

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CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing Brief of Chris Cox,
Former Member of Congress and Co-Author of CDA Section 230, and NetChoice
as Amici Curiae in Support of Plaintiffs and Reversal with the Clerk of the Court for
the United States Court of Appeals for the Ninth Circuit by using the appellate
CM/ECF system on April 25, 2018.
I certify that all participants in the case are registered CM/ECF users and that
service will be accomplished by the appellate CM/ECF system.
Dated: April 25, 2018

/s/ David Salmons
David Salmons
Attorney for Amici Curiae
Chris Cox and NetChoice

31