Craigslist Censored:
The Role of State Attorneys General in Combating Online Prostitution
Erin Diers
March 21, 2011
Introduction
On December 21, 2010, Craigslist, an online classified website, removed the “Adult Services”[1] category from their sites across 70 countries.[2] Prior to its removal, the “Adult Services” section provided a message board for providers of legal adult services such as “escort services, sensual massage, adult web cams, phone sex, erotic dancing, adult websites, nude housecleaning, etc.” to advertise to purchasers of their services for a small fee.[3] The “Adult Services” section was also frequently criticized as a haven for illegal prostitution.
The removal of the “Adult Services” section came in response to a nearly three year push from a multi-state coalition of state attorneys general led by Connecticut Attorney General Richard Blumenthal to close down this section of the website, which they alleged enabled child prostitution and trafficking.[4] The complete removal of the “adult services” section came after numerous intermediary steps, including an agreement in November 2008 between Craigslist, 40 state attorneys general and the National Center of Missing and Exploited Children (NCMEC) where Craigslist agreed to take measures to combat illegal activity on the site and the September 2010 removal of the “Adult Services” section from sites within the United States.[5]
This paper will demonstrate that when state attorneys general step outside their roles as chief legal officers and leverage their immense power to influence public opinion to induce multinational corporations to concede to their demands, their actions can lead to results contrary to the public interest that they are entrusted to protect. Part I will describe the history and features of Craigslist and Internet prostitution. Part II will discuss the possible legal routes the state attorneys general could have undertaken if Craigslist did not voluntarily comply with their demands. Part III will focus on the out of court actions that state Attorneys General have taken in influencing Craigslist to first agree to measures beyond their legal responsibilities and finally to eliminate the “Adult Services” section entirely. Finally, Part IV will discuss the policy and legal arguments against the removal of the Craigslist “Adult Services” section.
Part I: Craigslist and Online Prostitution
Craigslist began in early 1995 as an email list of San Francisco events between founder Craig Newmark and his friends.[6] The site has since expanded into a virtual bulletin board for local classified advertisements on multiple sites for hundreds of cities, within 70 countries, receiving a combined 20 billion page views per month.[7] Craigslist users publish approximately 50 million new classified advertisements monthly.[8] As Craigslist does not use banner advertisements on the site and most postings are free, Craigslist’s main source of revenue comes from paid job postings and paid broker apartment listings in New York City.[9]
Users can visit Craigslist to post listings for housing, services, job openings and the sale of physical goods from couches to handmade jewelry, and everything in between.[10] Craigslist also hosts discussion forums and personal advertisements.[11] Until recently, Craigslist users could view postings for “Adult Services” after verifying that they are 18 years or older.[12] Pursuant to Craigslist’s “erotic services FAQ”, the “Adult Services” section was initially created in 2001 in response to user complaints that ads for legal services, such as “escort services, sensual massage, adult web cams, phone sex, erotic dancing, adult websites, nude housecleaning, etc. [were] mixed into regular personals and services categories.”[13]
While many of the postings in the “Adult Services” section advertise legal services, some postings in the “Adult Services” section, while manually screened for illegal content as of May 2009, contain thinly veiled code words for prostitution, for example, “roses” means dollars and “Greek” signifies anal sex.[14] According to Melissa Farley of Prostitution Research & Education, in March 2005, Craigslist averaged “25,000 new ads every 10 days for “erotic services” that are probably prostitution.[15] Law enforcement officials, in court documents against Craigslist, have argued that “missing children, runaways, abused women and women trafficked in from foreign countries are routinely forced to have sex with strangers because they’re being pimped on Craigslist.”[16]
Craigslist argues that they are not directly profiting from the “Adult Services” advertisements. However, some critics allege that Craigslist indirectly benefits from this section because, “a majority of traffic to Craigslist’s website is for these [adult services] ads [and Craigslist] come[s] up with the amount they charge [for apartment postings] based on total web traffic.”[17] In April 2010, the Advanced Interactive Media Group, a revenue projection service, estimated that Craigslist would generate $36 million from their “Adult Services” advertisements.[18] Illinois’s attorney general, Lisa Madigan’s office told Brad Stone of the N.Y. Times that they counted more than 200,000 sex ads posted to Craigslist in Chicago since the November 2008 agreement, totaling approximately $1.7 million in fees generated.[19]
Craigslist’s “Adult Services” boards have become infamous for a number of high profile crimes associated with the message board, including, most notoriously, the April 2009 murder of massage therapist Julissa Brisman by Philip Markoff, the “Craigslist Killer”, who arranged to meet his victim through her post on the “Adult Services” board.[20] Law enforcement officials have used the boards to indict numerous prostitution rings, including seven defendants in Queens, New York who used Craigslist to organize illegal meetings between 16 prostitutes and their customers.[21] While the “Adult Services” section has received most of the bad press, users have also used other sections of the Craigslist site to facilitate their crimes. Another “Craigslist Killer” used a Craigslist advertisement for a nanny position to entice his victim to his home where he killed her and stuffed her body in his trunk.[22] Beyond the high profile crimes, critics argue that the “Adult Services” section also provided a haven for traffickers and child prostitution. One study, commissioned by A Future. Not A Past (AFNAP), a nonprofit organization devoted to “ending the commercial sexual exploitation of children”[23] found that when ads on Craigslist advertised an adolescent female, they received three times as many transactions for each post.[24] The study concluded that “Craigslist is by far the most efficient medium for advertising sex with young females” after comparing response rates with backpage.com and other internet classified websites.[25]
Of course, crime and prostitution did not begin with Craigslist and likely won’t end with the eradication of the “Adult Services” section of Craigslist. Prostitution is commonly referred to as “the world’s oldest profession.”[26] In 2009, there were over 60,000 reported arrests for prostitution in the United States.[27] Both prostitutes and those who seek out their services can be criminally prosecuted in most jurisdictions in the United States.[28] In 1994, shortly after Netscape began using the World Wide Web, the first online prostitution website was posted.[29] Craigslist and other similar websites have provided a “low cost, wide-ranging and highly anonymous” way for prostitutes to advertise their services.[30] According to some law enforcement officials, “Craigslist is the single largest source of prostitution in the nation.”[31]
Part II: Potential Criminal and Civil Liability for Craigslist
There is great debate about what measures state attorneys general could actually use to bring Craigslist into court if Craigslist hadn’t voluntarily complied with demands. Litigants have attempted to hold Craigslist liable with a number of different theories, but Craigslist has repeatedly avoided liability and is unlikely to ever be liable in the current legal framework. It is also unlikely that legislation could be passed that would successfully regulate the “Adult Services” section of Craigslist or similar websites due to First Amendment concerns.
When Craigslist has faced legal challenges in the past, they have argued that they are immune from legal action under Section 230 of the Communications Decency Act of 1996 (CDA), which provides that “[n]o provider of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”[32] In four cases, the court has sided with Craigslist and dismissed plaintiff’s cases.
In Gibson v. Craigslist in 2008, the plaintiff sued Craigslist for negligence in allowing an advertisement on the site that facilitated the sale of the gun that was used to shoot the plaintiff. [33] The court granted Craigslist’s motion to dismiss based on a Section 230 immunity argument after finding that the Complaint met the requirements of a three-pronged immunity test because: 1) Craigslist is in interactive computer service; 2) the advertisement content was provided “by another information content provider”; and 3) the plaintiff was trying to hold Craigslist liable as a publisher.[34]
In another 2008 case, Chicago Lawyers’ Committee for Civil Rights Under the Law v. Craigslist, the Court of Appeals for the Seventh Circuit affirmed a dismissal of a suit that alleged that Craigslist was legally responsible for the discriminatory housing ads posted by its users.[35] The court based its holding on its finding that Craigslist is a provider, not a publisher under Section 230.[36] The court acknowledged that it would be prohibitively expensive for Craigslist to hire employees to review the millions of notices published to the site each month.[37] The court pointed out that plaintiffs could still individually sue the users who posted the discriminatory housing ads.[38]
In a March 2009 case, Cook County Sheriff Tom Dart tried to sue Craigslist alleging alternative reasons for liability that he hoped would avoid Section 230 immunity – including that Craigslist was a public nuisance, engaged in solicitation and racketeering and “directing persons to houses of ill-fame.”[39] The Sheriff alleged that Craigslist had cost his office over $100,000 in prosecuting prostitution from their site.[40] Craigslist quickly filed a motion for judgment, citing Chicago Lawyers’ and arguing that Craigslist qualified for immunity under the three-prong test for Section 230.[41] In October 2009, the court dismissed the suit. Again, the court sided with Craigslist, criticizing Dart for making the same arguments that the Seventh Circuit dismissed in Lawyers’ Committees.[42] The court found that Craigslist did not create the offending listings or act as an intermediary for prostitution. The court stated that the title “adult services” “does [not] necessarily call for unlawful conduct....a woman advertising erotic dancing for male clients is offering an “adult service,” yet this is not prostitution.”[43] The court concluded that the Sheriff could still sue the individual users posting illegal advertisements and use Craigslist to find the users, but they could not sue Craigslist directly for their conduct.[44]
In May 2009, Craigslist cited Section 230 yet again in an attempt to avoid legal liability. At that time, South Carolina Attorney General Henry McMaster made a public announcement where he announced his intention to criminally prosecute Craigslist for the third-party advertisements that allegedly solicit prostitution.[45] In response, Craigslist filed a motion seeking to “enjoin a threatened prosecution in violation of federal law and the U.S. Constitution,” stating that any action would violate both Section 230 and Craigslist’s First Amendment right to free speech.[46] After a judge dismissed Craigslist’s case as premature, McMaster declared victory, but has yet to prosecute Craigslist or any of its employees.[47]
There is one exception to Section 230 immunity that some have argued might apply to Craigslist.[48] Section 230(e) states that “[n]othing in this section shall be construed to impair the enforcement of…any other Federal criminal statute.”[49] Under 18 U.S.C. § 1952, it is a federal crime to facilitate prostitution. While the court in Dart found that Section 230(e) did not allow private litigants to bring suits based on federal criminal law, no court has ruled on whether Craigslist could be held liable for facilitation of prostitution if a federal prosecutor brought the claim.[50]
States also considered creative legal actions to stop Craigslist. For example, insiders told a reporter with N.Y. Times that some attorneys general were considering “using state antifraud laws that can be used to prosecute misconduct by consumer-oriented companies.”[51] Some attorneys general have also considered endorsing state legislation, but that is unlikely to be effective.
Legislators have been unable to effectively craft legislation that targets the eradication of the harms associated with online prostitution. In 1996 Congress attempted to criminalize the “knowing” transmission of “obscene or indecent” messages to anyone less than 18 years of age in the Communications Decency Act.[52] However, only a year later, the Supreme Court said that portion of the Act violated the First Amendment as it constituted a “content-based blanket restriction on speech.”[53] Congress attempted to narrow the rule in the Child Online Protection Act (COPA) which only criminalized “the knowing posting, for commercial purposes…of World Wide Web content that is harmful to minors.”[54] Again, the Supreme Court said that the Act placed too many restrictions on protected speech.[55] The First Amendment prohibits any law “abridging freedom of speech.”[56] However, commercial speech, or speech “related solely to the economic interests of the speaker and its audience”, has long been treated as worthy of less protection than other more valuable speech.[57] Commercial speech must be lawful and truthful to be protected under the First Amendment. The speech that the state attorneys general seek to eradicate on Craigslist’s “Adult Services” section is speech encouraging illegal activity and therefore may not be protected by the First Amendment, but any potential legislation would have to be narrowly tailored such that it only targets the unlawful speech, which legislators have found impossible to date.
The state attorneys general disagree with this dismal view of holding Craigslist liable for user posted content. Blumenthal has said that “[Craigslist’s] view of the law, which is blanket immunity for every site on the Internet, never has been upheld by the United States Supreme Court, and I think there is some serious doubt.”[58] However, state attorneys general have also stated that even without legal support, they feel their actions are proper. In an August 2010 interview, Blumenthal implicitly acknowledged that the law was not on the state attorneys general’s side. He said “our letter does not talk about criminal violations of the law, nor have we ever said Craigslist is in violation of criminal law. The point is, we are asking Craigslist to do the right thing because it is in effect enabling, if not encouraging, prostitution.”[59] Following questions of propriety about state attorneys general behavior, South Carolina State Attorney General Henry McMaster said, “everyone has the right – you, me, everyone – to take a stand on these ads.”[60]