Turo facilitates peer-to-peer automotive leases. It supplied an choice for customers to pickup/dropoff at Logan Airport, however Turo took the place that it wasn’t a automotive rental service pursuant to the relevant rules. The airport authority (Massport) sued Turo and got an injunction regardless of Turo’s Section 230 protection. Turo appealed. The Massachusetts Supreme Court affirms the injunction, however with an vital modification.
With respect to Section 230, everybody agrees that Turo qualifies as an ICS supplier. However, the court docket says Section 230 doesn’t defend Turo’s first-party content material, which incorporates “the portion of the content on Turo’s website advertising Logan Airport as a desirable pick-up or drop-off location….[including] a dedicated search button for vehicles specifically available at Logan Airport.” Furthermore, “rather than seeking to hold Turo liable as the publisher or speaker for its users’ content, Massport’s claims sought to hold Turo liable for its own role in facilitating the online car rental transactions that resulted in its customers’ continuing trespass.”
The court docket adds this complicated assertion: “‘Features . . . [that] reflect choices about what content can appear on the website and in what form’ are ‘editorial choices that fall within the purview of traditional publisher functions’ [quoting Doe v. Backpage] but more concentrated involvement in the transaction may fall outside that purview.” What does “more concentrated involvement in the transaction” imply? This is regulation professor slippery-slope territory.
Citing Airbnb v. Boston, the court docket tries to elucidate:
Turo serves a twin function as each the writer of its customers’ third-party listings and the facilitator of the rental transactions themselves, and particularly the rental transactions that happen on Massport’s Logan Airport property. Rather than specializing in what Turo permits its hosts to publish of their listings, Massport’s claims pointedly concentrate on Turo’s function because the facilitator of the following rental transactions at Logan Airport, which is excess of simply providing a web site to function a go between amongst these looking for to lease their autos and people looking for rental autos. Indeed, because the decide noticed, along with permitting hosts to record their autos for lease, Turo additionally supplies substantial ancillary companies to its hosts, comparable to amassing and remitting funds, providing (and mandating) legal responsibility insurance coverage and roadside help that’s accessible twenty-four hours per day and 7 days per week, and screening company earlier than letting them lease a motorcar from a bunch.
I’m confused. Did Section 230 not defend Turo: (1) due to Turo’s first-party content material, comparable to promoting Logan Airport and offering a search button to search out automobiles there, or (2) as a result of Section 230 doesn’t apply to facilitating any e-commerce transactions (the fundamental holding of the HomeAway 9th Circuit ruling)? The rationale makes a distinction! Turo can cease referring to Logan Airport and take away the search button, however customers may nonetheless self-designate Logan Airport because the pickup/dropoff location on their very own initiatives. If the court docket’s opinion turns solely on principle #1, Section 230 will defend Turo on this revised situation. If the court docket’s opinion activates principle #2, then Turo is answerable for reserving transactions at Logan Airport, even when Turo didn’t do something to designate Logan Airport as an choice. The court docket favorably cites the Turo v. Los Angeles decision, which follows the HomeAway precedent and supports principle #2.
With respect to the underlying substantive declare, the court docket says that Massport may efficiently show that Turo aided and abetted its prospects trespassing on Logan Airport property. We don’t ordinarily see a declare like this towards Internet companies, as a result of Section 230 has mooted claims like this. The court docket says that Turo may have the requisite scienter:
Turo actually knew that its web site heralded a whole bunch of host autos accessible at Logan Airport and that it featured a button on its web site that allowed its company to particularly seek for autos accessible at Logan Airport….since at the very least April 2016, Turo knew that Massport regarded these rental transactions as unauthorized violations of its guidelines and rules, culminating in Massport sending Turo a number of stop and desist letters after Turo refused to execute a car rental agreement. Nonetheless, Turo continued in facilitating the unauthorized transactions — steadily rising its enterprise within the ensuing years…Turo’s broadcasting of airport handoffs together with its facilitation of those transactions when it knew or had purpose to know that these actions offended Massport’s guidelines and rules…
Turo shared the psychological state of the trespassing defendants primarily based on the communications between Turo and Massport and on Turo’s clear information of the persevering with and rising use of Logan Airport as a fascinating pick-up and dropoff location by its customers.
The court docket adds that “the utilization of search functionality by a provider does not categorically either secure or forfeit immunity under the CDA…An Internet service provider remains liable for its own speech, as Turo does here by creating speech through the language of this search feature advocating for Logan Airport as a preferable location for its users to transact.”
Again, I’m confused. Did Turo “aid & abet” as a result of it publicized the choices at Logan, or as a result of it booked the ensuing transactions? Turo can remedy the primary concern however not the second.
The court docket’s modification of the injunction exacerbates my confusion. The district court docket’s injunction prohibited:
Listing or allowing motor autos to be listed on Turo’s web site, or via every other Turo utility, as accessible for pickup or drop-off at Logan Airport
On appeal, the court docket says “the language ‘or permitting motor vehicles to be listed’ could be understood to obligate Turo to monitor and potentially to remove its hosts’ noncompliant content, an obligation that would appear to be prohibited by the CDA.” Thus, the court docket strikes that language, leaving the next injunction in place:
Listing motor autos on Turo’s web site, or via every other Turo utility, as accessible for pickup or drop-off at Logan Airport.
What does this injunction imply? Turo can’t “list” Logan Airport itself, however it apparently can “permit motor vehicles to be listed” as accessible at Logan, and Turo can’t be required to “monitor” or “remove” these listings. But can Turo e book these listings? If Turo removes all references to Logan Airport in its service, however customers select on their very own to designate Logan Airport because the pickup/dropoff location, what’s Turo obligated to do or not do then? ¯_(ツ)_/¯
Under HomeAway, Turo may enable these listings on its web site as a result of the listings are protected by Section 230, however not settle for bookings as a result of Section 230 doesn’t apply at that time. But that end result would require Turo to “monitor” the listings to verify it doesn’t settle for these bookings, and it raises the second-order concern (as I’ve raised with HomeAway and all comparable rulings) that having listings in Turo’s databases that Turo can not truly e book looks like an ordinary bait-and-switch for promoting regulation functions.
So what precisely is the end result right here? I’m unsure how this ruling will change the habits of Turo and its prospects within the subject. But given the shadow of HomeAway, Turo’s enterprise mannequin–and people of all on-line marketplaces–stays in vital peril.
Case quotation: Massachusetts Port Authority v. Turo Inc., 2021 WL 1556298 (Mass. Supreme Ct. April 21, 2021)