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In re Application of United States of America for an Order Pursuant to 18 U.S.C. § 2705(b)

United States District Court, District of Columbia

January 29, 2018

IN RE APPLICATION OF THE UNITED STATES OF AMERICA FOR AN ORDER PURSUANT TO 18 U.S.C. § 2705(b)

          MEMORANDUM OPINION

          BERYL A. HOWELL CHIEF JUDGE.

         In October 2017, the government sought an order, pursuant to 18 U.S.C. § 2705(b) of the Stored Communications Act (“SCA”), 18 U.S.C. §§ 2701, et seq., precluding Airbnb, Inc., from disclosing the existence of a grand jury subpoena to any person for a period of at least one year. See Application of the United States for Nondisclosure Order Pursuant to 18 U.S.C. § 2705(b) (“App.”), ECF No. 1. This application, as well as an amended application providing additional background and argument demonstrating that “Airbnb qualifies as a ‘provider' of an ‘electronic communication service'” under the SCA, see Amended Application of the United States for Nondisclosure Order Pursuant to 18 U.S.C. § 2705(b) (“Amended App.”) at 1, ECF No. 3, was denied by a Magistrate Judge on the ground that Airbnb is a “user, rather than a provider, ” of electronic communication services (“ECS”) and remote computing services (“RCS”), and thus is not an entity covered by the SCA. See Order dated Oct. 6, 2017 (“First Order”), ECF No. 2; Order dated Dec. 22, 2017 (“Second Order”), ECF No. 4. Now pending before the Court is the government's Ex Parte Objection to the Magistrate Judge's Denial of Amended Application of the United States for an Order Pursuant to 18 U.S.C. § 2705(b) (“Obj.”), ECF No. 6.

         Whether an entity is an ECS or RCS provider, and regulated as such by the SCA, carries significant consequences: the SCA's statutory scheme bestows upon covered entities greater responsibilities regarding the disclosure and safeguarding of their customers' electronic information, and each violation of that Act risks civil, criminal, and administrative penalties. See 18 U.S.C. §§ 2701(b), 2707(a)-(d). For the reasons stated herein, Airbnb is, for the purposes of the government's applications and objection, an ECS provider under the SCA by virtue of the electronic messaging system it provides to users of its service. Accordingly, the government's objection is sustained, the Magistrate Judge's order is reversed, and the government's application is granted.

         I. BACKGROUND

         The procedural history of this matter is summarized briefly below, followed by a description of Airbnb's electronic communication services as relevant to the application at issue.

         A. Procedural History

         The government filed its first application for an order, under 18 U.S.C. § 2705(b), on August 17, 2017, in a separately captioned matter, seeking an order precluding Airbnb from disclosing the existence of a grand jury subpoena. See Application of the United States for Nondisclosure Order Pursuant to 18 U.S.C. § 2705(b) (“August App.”) at 1, In re Application of the United States of America for an Order Pursuant to 18 U.S.C. § 2705(b) (“First Proceeding”), No. 17-mc-2011, ECF No. 1. In support of this application, the government asserted that “Airbnb provides an ‘electronic communications service, ' as defined in 18 U.S.C. § 2510(15), and/or ‘remote computing service, ' as defined in 18 U.S.C. § 2711(2), ” but did not provide additional information about the specific Airbnb services at issue. Id. ¶ 4. That application was summarily granted by a Magistrate Judge the next day. See Order dated Aug. 18, 2017, First Proceeding, No. 17-mc-2011, ECF No. 2. The government then served the order and subpoena on Airbnb, and Airbnb subsequently produced responsive records. Obj. at 2.

         The government filed a second application on October 4, 2017, again requesting an order under § 2705(b) precluding Airbnb from disclosing the existence of another grand jury subpoena and again asserting that Airbnb is a provider of ECS or RCS, as defined by the SCA. App. ¶¶ 4- 6. Like the August application, the second application expressly noted that the government's investigation had revealed reason to believe that specific Airbnb user accounts were being used to facilitate violations of federal law. Id. ¶ 2. Aside from certain differences in the facts attendant to each application, the August and October applications were identical. Nevertheless, the latter application was denied on October 6, 2017, by a different Magistrate Judge, who concluded that “Airbnb, Inc. is a user, rather than a provider, of electronic communication service, and that an order pursuant to Section 2705(b) thus cannot lie.” First Order at 1.

         On December 4, 2017, the government filed an amended application for a § 2705(b) order. See Amended App. at 1. Like the original application, the amended application sought “the same basic subscriber information from Airbnb as the August 2017 subpoena, but it requested that information for a different time period.” Id. ¶ 6. This time, the government included “additional background and argument demonstrating that, in this case, Airbnb qualifies as a ‘provider' of an ‘electronic communication service'” under the SCA. Id. at 1. Specifically, the government averred that “Airbnb provides an electronic messaging system that allows its users (guests and hosts) to communicate directly with each other (and not simply with Airbnb itself), ” and that, by providing this service, “Airbnb ‘provides to its users the ability to send or receive . . . electronic communications' to and from other users, and therefore acts as an ECS provider.” Id. ¶ 10 (quoting 18 U.S.C. § 2510(15)) (alteration in original). The government also noted that, “[c]onsistent with the fact that Airbnb provides an online messaging system through which hosts and guests communicate, Airbnb holds itself out as an ECS provider in soliciting law enforcement requests for user information under 18 U.S.C. § 2703.” Id. ¶ 4. Nevertheless, the amended application was denied on December 22, 2017, for reasons “consistent with the Order” denying the original application. Second Order at 1. The government now objects to the Magistrate Judge's denial of the amended application.

         B. Background Concerning Airbnb

         Airbnb, a corporation based in San Francisco, California, provides an internet-based service through a website and a smartphone application that allows property owners to rent accommodations, including their personal homes, to people seeking accommodations. Obj. at 3. The company describes itself as “a trusted community marketplace for people to list, discover, and book unique accommodations around the world-online or from a mobile phone or tablet.” About Us, Airbnb, https://www.airbnb.com/about/about-us (last visited January 26, 2018). Property owners use the website and the application to advertise their properties for rent with user-provided photographs and descriptions. Obj. at 3. Prospective customers may use the service to find properties, research properties through user reviews and communications with prospective hosts, and rent properties on short-term or long-term bases. Id.

         To use this service, all Airbnb users-whether customers or hosts-must create individualized, verified personal accounts. Id.; see also How Do I Create an Account?, Airbnb, https://www.airbnb.com/help/article/221/how-do-i-create-an-account (last visited January 26, 2018); What Are the Requirements to Book on Airbnb?, Airbnb, https://www.airbnb.com/help/ article/1170/what-are-the-requirements-to-book-on-airbnb (last visited January 26, 2018). A central component of each user's account is the “smart messaging system, ” which enables “hosts and guests [to] communicate with certainty.” How It Works, Airbnb, https://www.airbnb.com/ help/getting-started/how-it-works (last visited January 26, 2018); Why Should I Pay and Communicate through Airbnb Directly?, Airbnb, https://www.airbnb.com/help/article/209/why- should-i-pay-and-communicate-through-airbnb-directly (last visited January 26, 2018). Customers seeking to reserve accommodations from particular hosts use this messaging system to send electronic messages directly to hosts to ask questions about the hosts or their accommodations and, eventually, to book reservations. See How Do I Contact a Host before Booking a Reservation?, Airbnb, https://www.airbnb.com/help/article/147/how-do-i-contact-a-host-before-booking-a-reservation (last visited January 26, 2018); How Do I Submit a Reservation Request?, Airbnb, https://www.airbnb.com/help/article/85/how-do-i-submit-a-reservation-request (last visited January 26, 2018). After using this system to initiate reservations and contact prospective hosts, Airbnb customers may provide their personal contact information to the hosts and communicate directly over the phone or via email, as they prefer. Obj. at 4 & n.1; see also How Do I View and Send Messages?, Airbnb, https://www.airbnb.com/ help/article/145/how-do-i-view-and-send-messages (last visited January 26, 2018). Importantly, these messages are sent from user to user, rather than from users to Airbnb itself. See How Do I View and Send Messages?, supra. Airbnb's website explains to users that “[p]aying or communicating outside of Airbnb also makes it harder for us to protect your information and puts you at greater risk of fraud and other security issues, such as phishing.” Why Should I Pay and Communicate through Airbnb Directly?, supra.

         Airbnb's website also describes how the company responds to law-enforcement requests for user information. See How Does Airbnb Respond to Data Requests from Law Enforcement?, Airbnb, https://www.airbnb.com/help/article/960/how-does-airbnb-respond-to-data-requests-from-law-enforcement#RequestsfromUS (last visited January 26, 2018). Specifically, the company lists the following requirements for “non-emergency information requests from U.S. law enforcement”: (1) “A valid trial, grand jury or administrative subpoena is required to compel the disclosure of basic subscriber records (defined in 18 U.S.C. § 2703(c)(2))”; (2) “A court order issued pursuant to 18 U.S.C. § 2703(d) is required to compel the disclosure of certain other records pertaining to an account, not including contents of communications”; (3) “For content of communications, a search warrant issued under the procedures described in the U.S. Federal Rules of Criminal Procedure (or equivalent state warrant procedures) is required.” Id. Airbnb makes clear its policy of notifying users of any legal process from a third party, including law enforcement, requesting user data, stating:

Please note that Airbnb, Inc. has a policy of using commercially reasonable efforts to notify users in the United States when we receive legal process from a third party requesting user data. Generally, except where a court order (and not just the request for information itself) requires delayed notification or no notification, or except where notification is otherwise prohibited by law or where we, in our sole discretion, believe that providing notice would be futile, ineffective or would create a risk of injury or bodily harm to an individual or group, or to our property, we will endeavor ...

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