Update: on November 28, 2018, a lawsuit was filed in the U.S. District Court for the District of Delaware seeking an injunction and monetary damages against Airbnb for violation of the Fair Housing Amendments Act of 1988: Silber v. Airbnb, Inc., C.A. No. 1:18-cv-01884-UNA (D. Del.).
Avi Bell received his B.A. and J.D. from the University of Chicago, and his S.J.D. from Harvard, and clerked for Israeli Supreme Court judge Mishael Cheshin. A widely cited expert on property law, especially government takings of property, international law, especially the laws of war, and economic analysis of law, Bell frequently writes about the Arab-Israeli conflict. He currently teaches classes on property and intellectual property at University of San Diego School of Law, and on property, intellectual property, property tax and international law at Bar-Ilan University's Faculty of Law, and serves as Senior Fellow at the Kohelet Policy Forum.
By way of background: on November 19, 2018, Airbnb, a privately held global company headquartered in San Francisco that operates an online marketplace and hospitality service accessible via its websites and mobile apps, issued a policy statement regarding "Listings in Disputed Regions." Specifically, the statement addressed only a single "disputed region" - the West Bank region whose final status has not yet been settled and is the subject of ongoing, and often intermittent, negotiations between Israel and the Palestinian Authority. The statement announced that Airbnb would no longer permit listings by Israeli citizens in the West Bank, who are almost exclusively Jewish, and some of whom are also dual U.S. citizens. No such restrictions were placed on any other group residing in the West Bank, or indeed in any other disputed region anywhere in the world.
A class-action lawsuit was filed in the Jerusalem District Court. But Bell suggests that Airbnb may be in violation of more than Israeli law:
Unfortunately, as yet, few have taken note of the Airbnb’s probable violation of Title XIII of the United States’ Civil Rights Act of 1968, better known as the “Fair Housing Act” (FHA).
If Airbnb carries through on its announced ban, it will bar the listing of every single Jewish-owned and operated property in the West Bank. At the same time, its new policy will not bar the listing of any non-Jewish owned and operated property. This is an almost perfect example of a “discriminatory housing practice” forbidden by the Fair Housing Act.
While this is rarely remarked upon, the international campaign against Israeli settlements in the West Bank aims to enforce housing restrictions on Jews and only on Jews. Airbnb has not offered its own definition of the term “Israeli settlements in the West Bank,” but it is plain that, like other critics of the “settlements,” Airbnb means the term to refer to Jewish communities and Jewish-owned residences in the West Bank.
Approximately 15% of the West Bank’s population is Jewish. However, the Palestinian Authority has adopted a variety of measures to ensure that Jews cannot live in areas under Palestinian control. These measures include laws criminalizing the sale of land to Jews and using death squads to kidnap and murder those who sell land to Jews. Just last month, the Palestinian Authority jailed Issam Akel, an American citizen living in Jerusalem, based on the allegation that he sold a house he owns in the Old City of Jerusalem to Jews. Two days after Airbnb’s announcement, a PA court sentenced two Palestinian Arab men to 15 years of hard labor for land sales to Jews.
When people refer to Israeli settlements, they refer to those communities in the West Bank where Jews are permitted to live, or to individual housing units where Jews reside. Settlements is a term for Jewish housing, not a legal term. Opponents of the “settlements” refer to Jews who live in the ancient majority-Palestinian Arab city of Hebron or the newly established majority-Jewish city Ariel as “settlers,” but not their Palestinian Arab neighbors in those same cities. They call Jewish residents of east Jerusalem neighborhoods “settlers,” while refusing to apply the term to their neighboring Palestinian Arab residents of the same neighborhoods who also have Israeli citizenship. New West Bank towns are called settlements if and only if they are predominantly Jewish.
Bell notes that a claim under Title XIII would have an extraterritoriality problem:
Airbnb’s best hope for evading liability for its discriminatory housing practices relies upon a legal claim of extraterritoriality. Airbnb’s ban covers transactions that may take place in the United States, between American Jewish owners of property, and Americans who wish to rent them, on a US-based web site owned by a US company. However, the dwellings to be delisted are outside US territory. The Fair Housing Act doesn’t specifically say that covered dwellings must be in the US. Years of litigation about civil rights acts have established that the US civil rights laws only apply to extraterritorial discrimination if clearly intended by Congress. The courts will ultimately have to determine whether Airbnb’s brand of discrimination is truly extraterritorial.