The Taxman Commeth

City & Cnty. of S.F. v. Homeaway.com, No. A150385 (D1d4 Mar. 28, 2018)

In investigating tax evasion, San Francisco’s tax collectors served a subpoena for user data on an Internet home rental listings site. The superior court compelled Site to produce the records. Site says that violates the Stored Communications Act and the constitutional rights of its users. 

The Stored Communications Act, 18 U.S.C. §§ 2701–2712, regulates governments’ ability to compel disclosure of certain kinds of data from Internet sources. The most protected data is the content of stored electronic communications. To get at those, the government needs a warrant. On the other hand, there’s a list of basic customer information—name, address, use and payment info, etc.—that the government can just obtain by subpoena. And then there’s an in-between category for other kinds of customer information that require heighted protection short of a warrant like advance notice to the customer.

The SF Taxman wanted the names of the Site’s customers, the addresses of the properties they were offering, and information about bookings for those properties. But it was not asking for communications between the Site’s customers that are facilitated by the Site. 

Site argues, however, since the information sought is the kind of information that its users could share in their communications, the heightened warrant requirement applied. Site also claims that, although not itself “communications,” some of the data sought by the subpoena was obtained by the Site by mining of its customer’s communications. But the Court of Appeal rejects those arguments. The fact that information collected or mined by the Site from its customers might also be contained in communications does not subject the information to the warrant requirements of the SCA.

Site also argues that the information sought fell into the heightened in-between category. But the Court rejects that too, finding that the information requested about bookings is a type of customer identification, transaction, and payment information listed in the least protected category. It is thus obtainable by subpoena.

Finally, Site makes a number of constitutional and statutory arguments, which the Court also rejects. The Court seems doubtful that Site has standing to raise the privacy rights of its customers. And even if it did, the Court finds that the First and Fourth Amendment claims raised by Site lack merit. Similarly without merit are Site’s arguments that the tax authorities didn’t have statutory authority to issue the subpoena.

Affirmed.