Digital nomads beware — living in Airbnbs can mean waiving your Fourth Amendment rights

February 28, 2022 | By DANIEL WOISLAW
Airbnb Fancy Loft Interior

Airbnb CEO Brian Chesky is a billionaire without a home: Chesky is one of many white-collar workers who decided to become “digital nomads” during the pandemic, living and working full-time in a series of short-term rentals in different cities. The growing trend has been a boon for Airbnb, which enjoyed its best year yet in 2021.

“The pandemic has untethered millions of people from the need to be in office five days a week,” Chesky told CNBC. “As people get more flexible, fewer people are going to be in permanent residences.”

It’s an aspirational lifestyle for the adventurous and affluent: There are over 3.5 million posts tagged #digitalnomad on Instagram, most of them featuring beautiful, sophisticated young people who appear to be living a carefree dream as they move between temporary homes.

But there’s one thing these glamorous digital nomads should know: In some cities, living in short-term rentals means waiving your Fourth Amendment rights against unreasonable searches and seizures.

In Norfolk, Virginia, for example, any landlord who wants to list his property on a short-term rental site like Airbnb or VRBO must first register with the city and sign a right-of-entry statement to “allow any law enforcement officer to enter the property to inspect it for compliance.”

That means the police can enter the property any time without a warrant.

It’s a concession that should be anathema to most Americans. This country treasures individuals’ right to be secure against warrantless invasions by the government. It was one of the principal motivations of the Revolutionary War. Today, Amazon sells Come Back With a Warrant welcome mats that have over 2,000 customer reviews. (“So in conclusion, if you need to let the police know they need a warrant, this mat will make them aware. Stay safe everyone!”)

Every American who paid attention in school—or watched an episode of Law and Order—knows that if the police want to enter your home, they need either your permission or a court order.

But that’s not the case for short-term renters in Norfolk. And Norfolk isn’t the only city to use short-term rental regulations as a Fourth Amendment work-around.

In Henderson, Nevada—a city of 300,000 near Las Vegas—a short-term rental law required properties to have front-facing security cameras. Landlords had to store the footage for two months and provide it to the city whenever requested—no probable cause necessary.

In Austin, Texas, city officials reserved the right through an ordinance that took effect in 2017 to “enter, examine, and survey” short-term rentals “at all reasonable times.”

Shelter Island, New York—a beach community near Long Island—ultimately had to amend its short-term rental regulations after property owners brought a Fourth Amendment challenge. The town originally stipulated that all short-term rental landlords had to keep rental agreements for three years and provide the documents to the town whenever requested. Failure to do so would result in fines.

In Hollywood, Florida—a coastal city between Miami and Fort Lauderdale—short-term rental landlords are required to install “a noise level detection device alerting the property owner/representative and tenants to noise emanating from the Vacation Rental.” Landlords must store data from the device for 180 days and provide it to the city whenever requested.

Along the San Diego County coast, a debate over short-term rentals drew the Peace Officers Research Association of California to pen a short letter alleging that “many of these short-term rentals are being used for human trafficking, prostitution, and drug production.” But as The San Diego Union-Tribune noted, the letter included no data to support its sweeping allegation.

The National Association of Realtors tracks short-term rental restrictions around the country, keeping landlords apprised of how local ordinances curtail property owners’ ability to make money renting to visitors. For landlords, these restrictions represent a potential Fifth Amendment issue: Some rules constitute a regulatory taking by preventing property owners from enjoying the full value of their property. Others arbitrarily discriminate against certain categories of property owners like out-of-towners and may run afoul of the Fourteenth Amendment’s Due Process and Equal Protection Clauses.

But for short-term renters—like the carefree #digitalnomad trendsetters of Instagram—local rental ordinances are likely never given a single thought. After all, part of the attraction of the digital nomad lifestyle is to be free, unencumbered by the burdens and idiosyncrasies of property. (Chesky once referred to the digital nomad trend on Twitter as “the decentralization of living”—a wonderfully Silicon Valley phrase.)

Still, for a generation that is seemingly hyper-aware of what law enforcement is and isn’t allowed to do, young digital nomads should be more concerned about the Fourth Amendment implications of short-term rental ordinances than they currently are.

Because even if your home isn’t yours for the long-term, you should still have the right to be secure there.

And police should have to come back with a warrant.