Airbnb Host Spying on You? Tell it to the Arbitrator!

It’s April and many of us are looking forward to spring break or, further ahead, to summer where we might go on vacation and rent out a nice Airbnb someplace like Florida. Just in time to ruin what may be the best part of vacation – the anticipation – is this case involving a spying Florida condo owner and an unsuspecting Texas couple.   Since it’s behind a Bloomberg paywall, and some of you may not have subscriptions, here’s a brief summary of the disheartening facts.

The Texas couple decided to vacation in Longboat Key, Florida, renting a condominium unit through Airbnb.  The unit was owned by Wayne Natt who, the couple alleges, secretly recorded their entire three-day stay in the unit!  This included their “private and intimate interactions.”  After they somehow learned about the recording, they sued both Natt and Airbnb.

Their claims against Natt are obvious (intrusion, loss of consortium, being a %@)#( jerk!!, etc.)  Against Airbnb, they claimed that the company should have warned them that these types of privacy invasions have happened at other properties and that it should have ensured that this property did not have any electronic recording devices.  Readers of this blog can predict what happened next – Airbnb filed a motion to compel arbitration.  Yes, that old story.  It argued that pursuant to their Terms of Service, which the couple had agreed to by clicking, the couple had agreed to have an arbitrator decide the issue. 

The trial court had granted Airbnb’s request to allow the arbitrator to decide venue, but the intermediate court reversed, stating that the reference to arbitration rules was not “clear and unmistakable.”  The Florida Supreme Court last week quashed the intermediate court’s ruling and reinstated the lower court’s decision finding that the arbitration agreement “clearly and unmistakably evidences the parties’ intent to empower an arbitrator, rather than a court, to resolve questions of arbitrability.”

In so ruling, they focused on this language in the TOS:

The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section

Rule 7 of the AAA Rule states that the arbitrator has the power to rule on the arbitrability of any claim and on the arbitrator’s own jurisdiction.  Because Rule 7 was incorporated by reference, it became part of the TOS.

So the next time you plan your Airbnb vacation, especially if it’s in Florida, don’t forget to give it a full sweep for hidden cameras because apparently, spying hosts are not that unusual (and who wants to end up in arbitration?)  Or maybe next time, just check into a good old-fashioned hotel.