AGs from 18 states demand removal of adult sex ads on Craigslist

Tuesday, September 7, 2010

AGs from 18 states demand removal of adult sex ads on Craigslist

Attorneys general in 18 states have demanded that Craigslist remove its adult services section, the latest clash in a long-running conflict over online sexual ads. It's likely to lead to a court battle, congressional debate or both, legal experts say.

"Eventually we're going to see something," said Jason Schultz, assistant professor at the University of California, Berkeley School of Law. "There has been political pressure building to try to pass new laws or to sue Craigslist criminally."

At issue is an open legal question: What responsibilities do websites have to recognize and stop criminal activity facilitated through their properties?

The Digital Millennium Copyright Act and Communications Decency Act generally protect online publishers from third parties' illegal actions on their sites, particularly in matters such as copyright and defamation. But criminal statutes include narrow exceptions in the latter law.

The attorneys general would probably use this window to pursue a criminal case, charging Craigslist with aiding and abetting illegal activity. Any legislative push likely would seek to more specifically define those exceptions.

Attorneys general who signed on to the Aug. 24 letter to Craigslist demanding the company kill its adult-services section are from Arkansas, Connecticut, Idaho, Illinois, Iowa, Kansas, Maryland, Michigan, Missouri, Montana, New Hampshire, Ohio, Rhode Island, South Carolina, Tennessee, Texas and Virginia. Massachusetts' attorney general echoed them in a separate letter.

The company is the focal point of the debate, as the leading online classified ad site -- and what one critic has branded the "Wal-Mart of online sex trafficking." But any ruling or new laws could broadly affect many Internet sites' operations.

"If you impose liability on Craigslist, YouTube and Facebook for anything their users do, then they're not going to take chances," said Brian Carver, an attorney and assistant professor at the UC Berkeley school of information. "It would likely result in the takedown of what might otherwise be perfectly legitimate free expression."

Concern over that possibility motivated the broad immunity in the Communications Decency Act in the first place, under the belief that law enforcement should pursue criminals and not the platforms they're using to pursue crimes, Carver said.

But the argument hasn't satisfied all parties, as complaints about ads that may promote prostitution or child trafficking clearly show.

South Carolina Attorney General Henry McMaster threatened to file a criminal suit against Craigslist last year, as he was ramping up his campaign for governor. A U.S. District Court judge rejected the company's request for a permanent injunction against such a case this month, clearing the way for it to move forward.

But McMaster lost his bid for the Republican nomination in June and isn't running for re-election as attorney general. It's unclear whether he will continue to pursue the case.

Any lawsuit or legislation concerning responsibilities of Internet sites must grapple with some difficult legal questions:

-- Can a company like Craigslist be expected to distinguish between ads for legal services like massages and escorts, and those that wink at something illicit?

-- Is the company more culpable for such ads than the alternative weekly newspapers whose pages are filled with them?

-- Would Craigslist have to catch every illegal offering in its classified ads to be in compliance -- or 80 percent, or a mere 50 percent?

"No one has set a standard in a court of law for what that looks like," said Schultz.

It also isn't clear how much removing the adult section would accomplish. The ads may migrate elsewhere on the site -- or spill onto offshore Internet services. That could make it more difficult to monitor crimes and prosecute pimps, as Craigslist retains information about ads' posters and cooperates with law enforcement, Carver said.

The legal questions have been further clouded by recent heartrending stories describing how Craigslist has been used to operate prostitution rings and promote child trafficking.

"The increasingly sharp public criticism of Craigslist's Adult Services section reflects a growing recognition that ads for prostitution -- including ads trafficking children -- are rampant on it," a group of 17 state attorneys general said in an Aug. 24 letter to Craigslist founder Craig Newmark and CEO Jim Buckmaster. Massachusetts' attorney general echoed that concern in a separate letter to the company.

"We recognize that Craigslist may lose the considerable revenue generated by the Adult Services ads," the joint letter continued. "No amount of money, however, can justify the scourge of illegal prostitution, and the suffering of the women and children who will continue to be victimized."

The statement accuses Craigslist of profiteering, but fails to mention that the company didn't charge for the ads until pressured to do so by those same attorneys general. In late 2008, with the top cops from more than 40 states demanding changes, Craigslist began requiring posters to provide a working phone number, a small per-ad fee and credit card verification to encourage compliance with the site's guidelines.

The company donated the net revenue from those ads to nonprofits until at least this spring, when incidents like nonprofits ripping up their checks in front of media cameras led Craigslist to stop discussing nonprofit contributions publicly, Buckmaster said. Craigslist has famously turned down opportunities to wring maximum profits out of the site.

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