In January the Supreme Judicial Court (SJC) heard oral argument in a case challenging the ability of car sharing company Turo to facilitate pickups at Logan International Airport without paying the taxes and fees that Massport requires of traditional car rental companies. Like Airbnb and HomeAway do for the short-term house rental market, Turo allows individual car owners to rent out their cars for short periods of time when they would otherwise sit unused. The case, Massachusetts Port Authority v. Turo, Inc., promises to have national implications for whether car sharing companies and other internet businesses that facilitate peer-to-peer transactions can shield themselves from liability by relying on the Communications Decency Act of 1996 (CDA). The CDA protects internet businesses from being held liable for claims that would treat the website as the publisher or speaker of objectionable content posted by third parties. Search engines and social media applications are classic examples of companies often protected by the CDA, but it is less clear whether the immunity extends to companies that do more than simply serve as a bulletin board for third-party posts.
Last year, the Suffolk County Superior Court held that Massport was likely to succeed on its claim that Turo had aided and abetted its customers’ trespass on airport property, and that Turo’s claim for immunity under the CDA was “seriously flawed” because, beyond merely publishing third parties’ offers to pick up cars at Logan, Turo actively facilitates those transactions. Accordingly, the Superior Court enjoined Turo from operating at Logan without authorization from Massport. Turo appealed to the SJC, which will now review the Superior Court’s decision. At the January 8 oral argument, the Justices of the SJC appeared skeptical of Turo’s position, pushing back on the notion that the ability of Turo’s customers to zero in on cars available for pickup at the airport is part of Turo’s publisher function. Additionally, as counsel for Massport pointed out, Turo actually becomes a party to the contract between car owner and renter. Interestingly, both Turo and Massport pointed to the same 2016 case from the First Circuit, Jane Doe No. 1 v. Backpage.com, LLC, as the case that best supported their contradictory positions. The SJC’s decision therefore may hinge on how it views that First Circuit precedent.