Southern District of New York grants injunctive relief for Air B & B and Homeaway regarding ordinance requiring disclosure of customer lists as a violation of the Fourth Amendment

In this case, New York City passed an ordinance that would require Airbnb, Inc. and HomeAway, Inc. “on a monthly basis to turn over voluminous data regarding customers who use their platforms to advertise short-term rentals…. These companies moved for an injunction to stop the ordinance from taking effect.

In granting this preliminary injunction, the Court started by looking to the Plaintiff’s complaint stating that the ordinance violates the First and Fourth Amendments as well as the Stored Communications Act. The Fourth Amendment claim is what’s covered here.

The companies rely heavily on City of Los Angeles v. Patel, 135 S. Ct. 2443, 192 L. Ed. 2d 435 (2015), arguing that the Ordinance unconstitutionally compels them to turn over information in which they have a protected Fourth Amendment interest without any opportunity for pre-compliance review before a neutral decision-maker.

The Court here found that the requests for production by the City were even more substantial than in Patel, and decided that Fourth Amendment principles dictate that the injunction be ordered. The Court rejected the City’s argument that this is a legitimate administrative search, noting that cases that have held such searches to be legitimate have been limited to industries of “mining, firearms, liquor, and junkyards.” See Donovan v. Dewey, 452 U.S. 594, 101 S. Ct. 2534, 69 L. Ed. 2d 262 (1981) (mining); United States v. Biswell, 406 U.S. 311, 92 S. Ct. 1593, 32 L. Ed. 2d 87 (1972) (firearms); Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S. Ct. 774, 25 L. Ed. 2d 60 (1970) (liquor sales); New York v. Burger, 482 U.S. 691, 107 S. Ct. 2636, 96 L. Ed. 2d 601 (1987) (automobile junkyard).

The Court found this ordinance to authorize an unreasonable, warrantless search after a lengthy analysis and granted injunctive relief.

The case is Airbnb, Inc. v. City of New York, 2019 U.S. Dist. LEXIS 755,
2019 WL 91990 (S.D. N.Y.) January 3, 2019.

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