(b)Nothing in section 804 of this title (other than subsection (c)) shall apply to--(1) any single-family house sold or rented by an owner:...

(It's a long section, I've snipped most of it. Section 804 is what you quoted.)

(2)rooms or units in dwellings containing living quarters occupied or intended to be occupied by no more than four families living independently of each other, if the owner actually maintains and occupies one of such living quarters as his residence.

So if I'm renting out my home on AirBnB, or even a full floor of a 4 family brownstone, none of this actually applies to me.

It pretty clearly applies to lots of uses of AirBnB, even if arguably not all. But I think there's a pretty good case that it applies to AirBnB use without exception, simply because using AirBnB seems to make it applicable, as discussed below.

> Nothing in section 804 of this title (other than subsection (c)) shall apply to--(1) any single-family house sold or rented by an owner:...

(Note that lots of AirBnB rentals of single-family homes are not by the owner, and thus not within this exception even before considering the limitations on the exception.)

> (It's a long section, I've snipped most of it. [...])

And you shouldn't have, because the part that you snipped is all limitations on the part of the you quoted, including the most important one: "Provided further, That after December 31, 1969, the sale or rental of any such single-family house shall be excepted from the application of this subchapter only if such house is sold or rented (A) without the use in any manner of the sales or rental facilities or the sales or rental services of any real estate broker, agent, or salesman, or of such facilities or services of any person in the business of selling or renting dwellings, or of any employee or agent of any such broker, agent, salesman, or person and (B) without the publication, posting or mailing, after notice, of any advertisement or written notice in violation of section 804(c) of this title; [...]"

The use of a service like AirBnB would seem to place a rental act squarely within this limitation, and thus outside of the exception.

(b)Nothing in section 804 of this title (other than subsection (c)) shall apply to-- (1)[...everything you quoted...], or (2)rooms or units in dwellings containing living quarters occupied or intended to be occupied by no more than four families living independently of each other, if the owner actually maintains and occupies one of such living quarters as his residence.

Since (2) applies to AirBnB, it doesn't matter if (1) does because the exception is (1) || (2).

Volokh (a very good law blog) has blogged on this topic a while back, also useful to read: http://volokh.com/2012/02/08/does-the-right-to-choose-a-room... http://volokh.com/2010/11/05/federal-government-acknowledges...

Apparently people also have a constitutional right to choose "intimate associations", which includes who you live with. However, you can't advertise that you'll do this.

I'm pretty sure I'm not, at least in the way you are suggesting.

> Since (2) applies to AirBnB

(As noted previously, neither 1 nor 2 applies to many uses of AirBnB, where the person offering the rental isn't the property owner but is instead a tenant; but, that aside...)

I was actually responding to your suggestion that (1) applied to AirBnB -- or, more precisely, to a homeowner renting their home out via AirBnB; I was not responding to your argument that (2) applies to a AirBnB -- or, more precisely, to rentals of units or rooms by owners of homes for multiple (but not more than four) families living independently while the owner occupies some part of it (which, again, doesn't apply to lots of AirBnB rentals, including by-owner rentals.)

There are, I will acknowledge, a subset of AirBnB transactions which would fall within the exception of (2) from federal fair housing laws (which doesn't, actually, mean they'd be legal everywhere in the US; many states have much substantially narrower exceptions to state fair housing rules than exist in federal fair housing law.)

> Volokh (a very good law blog)

Volokh is probably the best right-libertarian law blog there is, yes.

> has blogged on this topic a while back

Maybe, but neither of the links you provide are "on this topic", (to wit, the legality of discriminatory renting via a commercial intermediary like AirBnB.) Both are regarding discriminatory listings via hands-off listing venues, which is a very different issue.

Maybe, but neither of the links you provide are "on this topic", (to wit, the legality of discriminatory renting via a commercial intermediary like AirBnB.) Both are regarding discriminatory listings via hands-off listing venues, which is a very different issue.

The point is the referenced constitutional right to "intimate associations", and you have not established that the use of AirBnB somehow nullifies this constitutional right.

If you are renting your home (and not merely some portion of it), you aren't occupying at the time you are renting rooms or units in it, so (2) doesn't apply; (1) might, were it not for the limitations in (1). There would be no point in quoting (1) at all unless you intended to invoke it, and your hypothetical doesn't make sense unless you intended to invoke both the portion of (1) you quoted and (2).

> The point is the referenced constitutional right to "intimate associations",

The existence of that right is not what is in controversy here; whether it extends to the use of an actively-involved commercial intermediary like AirBnB, is. Volokh's posts that you referenced are not germane to the point actually in controversy.

> and you have not established that the use of AirBnB somehow nullifies this constitutional right.

And you haven't established that it extends to the situation at issue; that's the point in controversy. But what either of us has or has not established is irrelevant to the point that the Volokh Conspiracy posts you referenced aren't even relevant to the point in controversy.

Certainly if I rented part of a duplex where I lived in the other half, #2 applies. #2 continues to apply even while I'm at work, if I go out to dinner, or go on vacation.

You're not the first person who has tried to falsely claim residence at a property, it's a very common way to commit tax fraud by claiming homestead exemptions. The courts won't even entertain this sham for a single second.

If I buy another structure and AirBnB out that place, it's equally clear that I don't.

I don't think it would be. The extra verbiage about a "broker/agent" is more of a secondary definition to help the law pin down properties that are "commercial". In other words, if you're paying the high price of contracting a broker, you're 99.99% likely not to be renting out a personal bedroom.

The homeowner's use of Airbnb is more analogous to listing in the "newspaper classifieds" rather than contracting a human broker.

As far as I can tell, very few people including states' general attorneys or Federal courts interpret Airbnb's situation as a broker service that is therefore subject to those limitations.

No, its not. Its an express limitation on the applicability of the homeowner exception, and applies to any use of any rental (or sale) services of a broker, agent, or person in the business of renting (or selling) real estate in support of a discriminatory rental, after December 31, 1969.

Its only legal (since 1970) under the federal fair housing act to discriminate, even as a homeowner renting their own home, if the rental is arranged without the use of some commercial rental-arrangement service.

(And even them it may be illegal under state fair housing laws.)

> The homeowner's use of Airbnb is more analogous to listing in the "newspaper classifieds" rather than contracting a human broker.

That's certainly the argument a discriminating owner using AirBnB (or possible AirBnB themselves) would try to make, but AirBnB's financial and substantive involvement in the transaction is very different than that of a hands-off listing service like a newspaper classified section, so I don't think that argument would fly. If AirBnB actually acted like a newspaper classified service, that argument might be valid, but that's not what AirBnB does (if we were talking, instead, about Craigslist, that would be a good argument.)

To be clear, my response was not disagreeing with this part.

Except that AirBnB:

- collects money and acts as a financial intermediary

- provides some measure of insurance to both sides of the transaction

- provides some measure of support before/during/after a stay

- more?

Basically, it's nothing like a newspaper classified.

Where "large" means "more than one". And not always that. If they own two, live in one but lease the other they're not allowed to discriminate on protected characteristics.

Aren't a large portion of listings from hosts who aren't renting out part of their own residence? For all of them, the law would apply.

The majority of recent uses of the term "white supremacist" make me cringe. It's mostly propaganda: A deliberate emotional attack often based on a false equivalence. In any case, the impression I have as a frequent AirBnB user is that most AirBnB owners aren't interested in renting on the basis of "race, color, religion, sex, familial status, or national origin." Rather, they are most interested in education level, socioeconomic status, and manners as a proxy for risk. They just want to determine how likely the potential guests are to cause an out-sized expense in time, treasure, and emotional energy.

Not letting people exercise such judgement is effectively creating a privileged group on the basis of race, color, religion, sex, familial status, or national origin. (EDIT: However, I would only reserve such leeway for people renting out a part of their own residence. People who own or have leases on a large number of rooms/properties renting on AirBnB should have to abide by such laws, as they are basically in the hotel business, and are covered by the applicable laws. Also, their increased transaction volume makes such laws enforceable, whereas a genuine single family on AirBnB would often not have such volume. Equating these different classes of AirBnB user would be a False Equivalence.)

And even if we remove all racial characteristics from the application, judging by socioeconomic status is defacto racial discrimination because of the correlation between status and race.

And even if there were no correlation between socioeconomic status and race, it still seems wrong to discriminate against a poor person even if, on average, poor people cause more problems for the landlord.

If you're "playing the odds" by using race as a proxy for socioeconomic status, then this is wrong. It's also a pretty poor proxy, in my experience. What about our judgements about people's judgements? (Meta-judgements.) If you're equating making a factual determination about socioeconomic status with racial discrimination, then you are using the same sort of statistical proxy you're arguing against!

And even if there were no correlation between socioeconomic status and race, it still seems wrong to discriminate against a poor person even if, on average, poor people cause more problems for the landlord.

Really, socioeconomic status is a proxy for behavior and ability to pay. Because of its rating system, AirBnB can function as a meritocracy. The fact that it has an effective rating system is a competitive advantage. Provided they are not absolutely locked out, it seems feasible for a poor person to earn a good rating in such a meritocratic system.

If AirBnB wants to further social justice, then it should make the meritocracy of the ratings fairer, instead of denying its utility to hosts. The former increases justice. The latter is using market power to force hosts into behaving how you want. You don't win hearts and minds by forcing people to do things. You win them by facilitating their voluntary transactions with all different kinds of people. (I've seen this first hand. I saw one of my classmates go from being a homophobe to being the best friend of a gay activist, by bonding over soap operas.)

It's a typical problem of the "sharing" economy. I'm not sure the courts will agree with them, but their strategy has been similar to Uber's in that they come in, break the law (or at the very least operate in a legal grey area), then get so big that traditional regulatory systems have no way to deal with them.

But, since the government will have to do all this inspection, I guess you agree that they will have to levy a tax on AirBnB to pay for it?

So yeah, you don't have to clean as well as a hotel if you don't want, you don't have to pay the taxes as a hotel or even a regular long term rental unit if you can get away with it (thinking IRS will consider a portion of your house converted into business property and thus subject to business property gains tax when you sell the house, but not limited to this), you don't have to follow or even give notice that you don't follow ADA, on and on, because AirBnB doesn't verify any of this and it's claimed it's not their responsibility to do so; but they also don't support even a licensing program by municipalities and rental history reporting so that these municipalities could do their own verifications.

Basically if you even the playing field across the board between an AirBnB and hotel, you end up with something like an actual Bed & Breakfast (although typically without breakfast but often with access to a kitchen). All things actually being equal, even price per square foot, I'd probably pick an AirBnB, but I actively avoid it whenever possible because I think their success mainly constitutes free loading (and enabling it by property owners)

I suspect Google was trying to do the same with Google Fiber, but found the opposition (in the form of AT&T / Verizon / Comcast / TWC / Charter / Cox) was too organized and entrenched.

I don't feel Airbnb is particularly innovative on the technology side; they're just exploiting a combination of inefficiencies in government regulatory mechanisms and the naivete of inexperienced landlords.

There are plenty of horror stories about houses being trashed, etc. that professional landlords will cover with insurance (and that add to the price of a rental). By not being experienced enough to cover themselves, many renters expose themselves to a huge amount of risk. As the horror stories propagate, they will look to reduce their risk in other ways such as discriminating against renters that they have pre-existing biases toward.

Given the amateur nature of their landlords, I don't see a real way for Airbnb to stop this type of discrimination other than by providing insurance coverage -- which, of course, would significantly raise the prices of Airbnb rentals and likely force many hosts who are already operating illegally (i.e. against the terms of their leases) from the market. No insurance company in the world would be willing to underwrite a policy for damages that are already prohibited under an existing contract.

There's a world of difference between a single family letting their guest room, the runner of a "Hacker Hostel" with 12 bunks, and someone who rents 4 different properties on AirBnB but lives in another house. The laws should be formulated such that the rules for hotels also apply to the 3rd case. Such laws should definitely not apply to the 1st case. A "Hacker Hostel" is also something of an interest group, so I'm not sure what applies there.

That's pretty much the basis for AirBnb's existence.