1984 in 2018: Government Data Grabs, Privacy and the US Constitution

One of the big issues for short term rental hosts not only around the nation in the United States, but also around the world, is the issue of privacy, namely the privacy you expect to have when you do business with any particular corporation or entity, or sign up on a website or put an ad on a platform like Airbnb, HomeAway, or Craigslist.

As we’ve seen, more and more cities are passing short term rental regulations, often out of concern either about disruptions to the neighborhood caused by “party houses” (though cities generally already have laws about noise), or about rental units being taken off the market and turned into short term rentals.  After they pass these short term rental laws, they often discover that the laws are difficult to enforce.  This is less the case in small towns and rural areas where people know most of their neighbors, and more the case in larger cities where, when a host puts a listing on an STR (short term rental) platform, but does not include any info in the listing which would help identify which structure it is (eg, they do not have a photo of the front of the house or building), the city, if they want to investigate all short term rentals, would have a difficult time figuring out where all the properties are.

Many of us, myself included, do not really see how it is a problem that the city cannot identify every single short term rental in its jurisdiction.   If any particular listing or property is causing problems in the neighborhood — for instance with noise or parties, bad behavior by guests — don’t you think the neighbors would complain to the city and be able to identify the property?  Of course they would.  So, no city is going to have difficulty enforcing laws on noise or disturbance, or short term rentals, on a property which is bringing problems to a neighborhood.

It’s the rentals which are NOT creating problems in the neighborhood, where the city may have difficulty enforcing its short term rental laws.  But here, it is quite legitimate to ask, even I would say very important to ask — if a particular property is not causing any problems to the neighborhood, why would the city need to be involved? Why are some cities becoming big bullies, obsessed with trying to track down on every single host and ensure that every city ordinance is being obeyed to the jot and tittle of the law?

Big Brother and man running
For surely, one could point out, there are many laws that people are not obeying, in whole or in part, so why are cities so overly focused on this one?  The double standards or hypocrisy about following the law can be perhaps seen in sharpest relief when looking at a city like San Francisco, which is a “sanctuary city”, priding itself on protecting none other than those who have broken federal law and come into the United States illegally.  Given such a stance, one might expect that San Francisco might have a laissez faire attitude towards many other things, as would befit a city which figured so largely into the 1960’s Flower Children culture.  But no, as regards anything to do with housing, the city of San Francisco becomes very controlling, and has now forced Airbnb to essentially partner with the city, and mandate host registration with the city on Airbnb’s own website.  No one can set up an Airbnb listing for short term rentals in San Francisco without going through the process to register with the city.

Many other cities would like to follow suit and coerce Airbnb to partner with them and their law enforcement efforts.  But there are few places where a city’s demands on Airbnb are as extreme as in New York City.  There, the city has set up the ominous-sounding,  Orwellian-sounding “HomeSharing Surveillance Ordinance”, by which it seeks to accomplish a massive, and apparently massively unconstitutional, bald data grab.  Airbnb has now been forced to sue New York City in order to obtain injunctive relief and stop the data grab.  You can also see the Airbnb lawsuit against New York City here:

Airbnb Sues NYC over data grab

The Homesharing Surveillance Ordinance requires homesharing platforms to turn
over an unprecedented amount of intimate personal data about their New York City hosts and whom they invite into their homes each month to a government enforcement agency—the Mayor’s Office of Special Enforcement—that works shoulder to shoulder with private investigators hired and paid by the hotel lobby. No probable cause, notice, or legal review is contemplated in connection with the bulk collection of this data, and no real restrictions are placed on its use or dissemination. As such, the Ordinance is an unlawful end-run around established restraints on governmental action and violates core constitutional rights under the First and Fourth Amendments to the U.S. Constitution and Article I, Section 12 of the New York Constitution, as well as the
federal Stored Communications Act, 18 U.S.C. §§ 2701 et seq

New York City is attempting to force Airbnb to provide it ALL private information on ALL hosts in the city.   The city is even demanding that Airbnb provide it with the bank account information of every host in the entire city!  

the Homesharing Surveillance Ordinance requires that the platform turn
over to the City’s enforcement agency on a monthly basis:

a. the address of the residence;
b. the full legal name, address, telephone number, and email
address of the host;
c. the specific identifiers (name, number, and URL) of both the
home and the host on the homesharing platform;
d. a statement of when and how the residence was occupied;
e. the total number of days the residence was rented;
f. the fees received by the platform; and
g. if the platform collects rent, the amount paid and host bank
account information.

To be sure, governments will justify such bald and overreaching data grab attempts, by stating that these are for a good purpose, the purpose of preserving housing. But the purpose of or motivation behind any violation of constitutional protections is totally irrelevant. There are multitudes of “good purposes” out there, and every day we see violent criminals protected by their constitutional rights, at the cost of public safety and security. The desire to keep rental units from being taken off the market may be a good goal, but like any other government endeavor, this work has to be accomplished legally. Moreover, as statistics demonstrate, New York City’s obsession with short term rentals is illogical: the number of short term rentals in the city amounts to only 0.8% of all housing in the city.

City Council members and other State and City officials claim that this extreme
governmental surveillance is somehow necessary because housing is being taken off the market illegally for use as short-term rentals and thereby driving up housing costs. As of June 1, 2018, however, there are only about 28,000 “entire home” Airbnb listings spread across New York City—approximately 0.8 percent of New York City homes. Moreover, 95% of hosts listing an entire home on Airbnb have only a single home offered—hardly a threat to the City’s housing
stock.

It’s very likely that a number of those units being offered as short term rentals, would NOT be offered as long term standard housing, if they could not be used as short term rentals. Many of these are the principal residence of the host. Even if all of those units would theoretically be returned to the rental market if they were not listed as short term rentals, that would add very little to the total housing stock, and again, does not justify the excessive fixation on this issue.

I want to suggest another possible theme in this story — it seems to be quite possible, that at least in modern times, and at least with matters which are not criminal in nature, city governments may not have previously seen the scale of noncompliance with city ordinances, which we are seeing in many cities with regard to short term rentals. This mass-scale noncompliance, which is more extensive in some cities than others, may be a new phenomenon. Petty bureaucrats in general do not like to see the flaunting of their authority, so the large scale of noncompliance that is occurring in some municipalities, may push their petty-bureaucrat buttons.'Maybe if your buttons weren't so big, Mel, people wouldn't be so inclined to push them!'

Whereas some cities have wisely responded to the short term rental movement by saying “let’s not pass laws that make outlaws out of a majority of those doing short term rentals” others take a less sensible approach, and come out bashing with super-duper enforcement teams, police and firefighters going knocking door to door and demanding entrance to private homes, or assessing mind-boggling excessive fines in the stratosphere, thousands of dollars per day, for breaking short term rental laws.  Miami Beach apparently has the highest fines for doing unpermitted short term rentals: they assess initial fines of $20,000 for a violation  —  they passed a new ordinance in 2016 raising the first violation fine for a resident caught renting short-term to $20,000. Each subsequent fine increases by another $20,000 and can be as high as $100,000.  The city of Miami Beach is now, appropriately, being sued over these appallingly excessive fines.

Image result for US constitution

Our privacy online, and in relationship to companies we do business with, is a theme of increasing importance these days, as the GDPR in Europe has demonstrated, and as we have seen with regard to Mark Zuckerberg and Facebook. Ironically, even a FaceBook smartphone app specifically touted as offering privacy protections to users, was rejectec by Apple when it was discovered that this “privacy app” itself violated users’ privacy!!

I actually do not understand how many things that corporations do online are allowed to be done, as they seem clear privacy violations. For instance, what we call “cookies” (where did such an inappropriate name come from?) — isn’t it clear that “cookies” is simply a bald attempt to spy on those accessing a particular website, which allows those owning that site, to track and see which other websites the user visits? This is out and out spying, and I can’t see how this can be permitted. My browsing history should not be information available to any website that I visit.

I wish more people would appreciate the importance of privacy and our constitutional protections from government intrusion, because without enough value for these protections, there is risk we could lose them. It’s not just the laws of our nation which protect us, but our valuing of those laws.

Image result for the price of liberty is eternal vigilance

Often, I’m actually shocked by how little appreciation some have for their liberty and privacy.  In response to posts about government overreach, for instance, it is not uncommon in a host group to see a host respond, “Well, I’m obeying the law, so I have no reason to be concerned if the government wants all this data.”

I have this image in my mind, of government agents going door to door, demanding to be allowed into private homes “just to look around and see if we find anything”, and our many virtue signalling citizens being completely fine with this massive illegal invasion, saying in reply, “Well, fine, go ahead, this just gives me an opportunity to demonstrate how righteous I am that I have nothing to hide, compared to those hosts over there who I think might be breaking the law!”  Really, the eagerness to demonstrate one’s own virtue seems to be on the verge of becoming just that eager to condemn others, that it would turn a blind eye to loss of fundamental liberties if the maintenance of the show of virtue could be supported thereby.  Image result for virtue signalling images

The lack of concern for violations of the US Constitution is mind-boggling.    It sometimes seems to me that various forms of virtue-signalling and taking pride in how righteous one is, how politically correct, or how obedient one is to whatever current laws are, is blinding people to the threat to liberty taking place in various forms of government overreach.  We live in a society where virtue signalling has become so big, and so important, that it really figures largely into many facets of the Democratic party and its programs.  This is pushing us all to a dangerous failure to be concerned about protecting our freedom and liberty.

As the Supreme Court has recognized, “when it comes to the Fourth Amendment,
the home is first among equals. At the Amendment’s ‘very core’ stands ‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’” Florida v. Jardines, 569 U.S. 1, 6 (2013) (quoting Silverman v. United States, 365 U.S. 505, 511 (1961)). Indeed, “the overriding respect for the sanctity of the home . . . has been embedded in our traditions
since the origins of the Republic.” Payton v. New York, 445 U.S. 573, 590 (1980). The Homesharing Surveillance Ordinance is inconsistent with these fundamental principles.

As well, however, the threat to one’s livelihood can unfortunately too easily result in placing more value on self-preservation, than on preserving freedom and liberty in the nation as a whole. It’s become apparent through conversation with hosts in some of the cities where Airbnb has (unwisely, in my view) offered to partner with the city and help the city police its own laws, that some hosts view this lasso-ing of private companies into the law enforcement business, as necessary for their own ability to do business.  They feel that if the city isn’t given what it wants, then their city may ban all short term rentals, which could be ruinous for them.  When I bring up the unconstitutionality or loss of privacy issues to some hosts, they simply say things like “I dont’ see what the issue is if Airbnb gives the city the data.  Hosts are supposed to sign up with the city anyway, so the city would have the information anyway.”  This is like saying it’s pretty much the same thing if border patrol agents catch someone crossing the border illegally, or if the government stops people randomly on the street and asks for their ID, or tells the local school district to give them the names of all suspected illegal immigrants, since “it doesn’t matter how they are caught, they shouldn’t be here anyway.”   The methods that are used to obtain information do matter very much if we are to preserve liberty.  For those who only have their own business interests in mind, liberty and privacy may not mean much.  I am suggesting that we need to take a larger view on things than our own self-interest.

There are several areas where I think hosts should be most diligent to protect their own liberties. One is the type of massive data grab attempt highlighted in the situation in NYC. Another is one that could be missed because it seems much more innocuous. Many cities, when passing short term rental laws, stipulate as part of their regulation, that hosts’ homes will need to be inspected prior to the issuance of an STR permit. As I point out in this article, this inspection issue could be much more complicated and even disastrous for hosts than it would seem on its face. It may not be very common, but it does happen in some municipalities, that once government agents or building inspectors are given access to a private home, they go well beyond their legally circumscribed authority therein. It has happened all too frequently that either a power-hungry rogue building inspector, or an entire city building department with too little concern with citizen’s constitutional rights, will engage in a “fishing expedition” when given access to a private home. Hosts renting one bedroom to a guest in their home, who think the code inspector is there only to look for smoke detectors, and required means of egress in a fire, may be shocked to be handed a fine of $2000 to $5000 for unpermitted work done on a detached garage 30 years before they owned the building. These kinds of things have happened, even to those who may have expected that they were exempt from government abuse because of their level of personal righteousness or excellence in virtue signalling.

For instance, hosts in Portland Oregon were disturbed to find exactly this happening to them, when they applied for an STR permit, and disoovered that building inspectors, once granted access to their home, would just start wandering around, looking for anything they could write up and fine the homeowner on. In Oakland California, in 2011 a Grand Jury was convened to look into allegations of widespread abuse by the city’s building department. The Grand Jury report found “an atmosphere of hostility and intimidation toward property owners” by Oakland inspectors and supervisors,and many abuses by the building department. The Grand Jury outlined the problems at length in this report:

http://www.acgov.org/grandjury/final2010-2011.pdf

Or, you can find the report here:

Oakland Building Department investigated by Grand Jury

Back in NYC:  over the past year, a campaign of harassment of hosts has occurred, where many stories have emerged from New York City hosts, about finding that a troupe of multiple government agents is knocking on their door, ostensibly in response to a “complaint.”  Police, fire department staff and building inspectors have demanded to be permitted into many hosts’ homes (smart hosts have refused to grant them entry) and once inside, they have undergone a fishing expedition, looking for issues to cite the host over.  Hosts have emerged with fines or threats of fines, for things not related to hosting.

Suffice it to say, I recommend that when advocating for STR regulations in their city, hosts should oppose any property inspection requirements, and in general I think property owners should be very hesitant to allow government agents onto their properties. There is too much potential for abuse and bullying, and the property owner is at a great disadvantage. Sometimes cities have no appeal process when building inspectors issue fines (that was the case in Oakland) and it can be prohibitively expensive to try to fight back by suing a city for abuse by the building or any other department.  As well, there is little legitimate reason for a city to do home inspections prior to allowing an owner to do short term rentals.  No such inspections are required in order to do standard long term rentals.  As well, given that AIrbnb very readily refunds guests if they have a complaint about the premises where they are staying, any renter who has a concern about the premises can easily get a refund and find another place to stay.

IN conclusion….let’s watch what happens in Airbnb’s lawsuit with New York City, and hope that a precedent is set which persuades New York and other cities not to engage in these massive data grab attempts, and look for other ways to enforce their laws than in engaging in violations of citizen’s constitutional rights.

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