Craigslist Censored:
The Role of State Attorneys General in Combating Online Prostitution
Erin Diers
March 21, 2011
1
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
Before May 13, 2009, this section was labeled “Erotic Services” (See Jim Buckmaster, Striking
a New Balance, Craigslist Blog, May 13, 2009, available at
http://blog.craigslist.org/2009/05/striking-a-new-balance (last visited January 9, 2011))
2
See W.J. Hennigan, Craigslist drops adult services listing from international sites, L.A. TIMES,
December 22, 2010, available at http://latimesblogs.latimes.com/technology/2010/12/craigslistdrops-adult-services-listings-from-international-sites.html (last visited January 9, 2011)
3
See Craigslist FAQ, http:// www.craigslist.org/about/erotic_services_FAQ (last visited January
9, 2011)
4
Craigslist Turns off Red-Light District on U.S. Site. 28 NO. 8 WESTLAW JOURNAL COMPUTER
AND INTERNET 5. (September 15, 2010).
5
Shahrzad T. Radbod, Craigslist – A Case for Criminal Liability for Online Service Providers?
25 BERKELEY TECH. L. J. 597, 608 (2010)
1
2
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
6
Craigslist Factsheet, www.craigslistorg/about/factsheet (last visited January 7, 2011).
Id.
8
Id.
9
Brad Stone, Sex Ads Seen Adding Revenue to Craigslist, N.Y. TIMES, April 25, 2010, available
at http://www.nytimes.com/2010/04/26/technology/26craigslist.html (last visited January 9,
2011).
7
3
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
10
See Craigslist Homepage, http://www.craigslist.org (last visited January 10, 2011).
Id.
12
Jeff McDonald, The Oldest Profession Finds a New Medium: Craigslist and the Sex Industry,
15 PUB. INT. L. REP. 42 (2009).
13
Craigslist erotic services FAQ, http:// www.craigslist.org/about/erotic_services_FAQ (last
visited January 9, 2011).
14
Robert Rigg, The Not-So-Risky Business of High-End Escorts and the Internet in the 21st
Century, XVII RICH. J. L. & TECH. 3, 38 (2010).
15
Melissa Farley, Prostitution, Trafficking, and Cultural Amnesia: What We Must Not Know in
Order to Keep the Business of Sexual Exploitation Running Smoothly. 18 YALE J.L. & FEMINISM
109 (2006).
11
4
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
16
Complaint, Dart v. Craigslist Inc., 09-CV1385 (N.D. Ill. March 5, 2009), available at
http://www.citmedialaw.org/sites/citmedialaw.org/files/2009-03-05-Dart%20complaint.PDF (last
visited January 10, 2011).
17
Rigg, supra note 14 at 48.
18
Stone, supra note 9.
19
Id.
20
Abby Goodnough, Man Held in Boston Hotel Killing, N.Y. TIMES, April 20, 2009, available at
http://www.nytimes.com/2009/04/21/us/21killing.html?ref=philipmarkoff (last visited January
10, 2011).
5
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
21
Christine Hauser, 7 Accused of Using Craigslist for Prostitution, N.Y. TIMES, May 20, 2009,
available at http://www.nytimes.com/2009/05/21/nyregion/21craigslist.html?ref=craigslist (last
visited January 10, 2011).
22
Scott Michels, Ad for Online Nanny Lured Woman to Her Death, ABC NEWS, October 29,
2007, available at http://abcnews.go.com/TheLaw/story?id=3789765&page=1 (last visited
January 9, 2011).
23
AFNAP: About Us, available at http://afnap.org/about-us/ (last visited March 19, 2011).
24
Men Who Buy Sex with Adolescent Girls: A Scientific Research Study. http://afnap.org/wpcontent/uploads/2010/06/The-Schapiro-Group-Georgia-Demand-Study.pdf
25
Id.
26
Rigg, supra note 14.
27
Federal Bureau of Investigation, Criminal Justice Information Services Division, Uniform
Crime Report: Crime in the United States, 2009, available at
http://www.fbi.gov/ucr/cius2009/data/table_42.html (last visited January 9, 2011).
6
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.
28
Rigg, supra note 14 at 2.
Erin I. Kunze, Sex Trafficking Via the Internet: How International Agreements Address the
Problem and Fail to Go Far Enough, 10 J. HIGH. TECH. L. 241 (2010).
30
McDonald, supra note 12 at 42.
31
Complaint, supra note 16.
32
Communications Decency Act of 1996, 47 U.S.C.A. § 230(c)(1).
29
7
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 threepronged 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
33
Gibson v. Craigslist, Inc., No. 08 Civ. 7735 (RMB), 2009 U.S. Dist. LEXIS 53246 (S.D.N.Y.
June 15, 2009)
34
Radbord, supra note 5 at 604.
35
Chicago Lawyers’ Comm. For Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666
(7th Cir. 2008).
36
Id. at 671.
37
Radbord, supra note 5 at 605.
38
Id.
8
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
39
Complaint, supra note 16.
Radbord, supra note 5 at 609-610.
41
Id at 610.
42
Dart v. Craigslist, Inc., No. 09 CV 01385, 2009 WL 3416106, at 7 (N.D. Ill. 2009).
43
Id.
44
Id.
45
Craigslist Wants Court to Halt S.C. Official’s Prosecution Threats, supra note 15.
46
Radbord, supra note 5 at 609.
40
9
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 consumeroriented 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
47
Kinnard, supra note 55.
See Radbord, supra note 5 at 612-613.
49
47 U.S.C. §230(e)(1)
50
Radbord, supra note 5 at 613
51
Stone, supra note 44.
52
Kunze, supra note 28.
48
10
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
53
Reno v. ACLU, 521 U.S. 844, 845-46 (1997).
Kunze, supra note 28.
55
Id.
56
U.S. Const. Amend. I.
57
John E. D. Larkin, Criminal and Civil Liability for User Generated Content: Craigslist, A Case
Study. 15 J. TECH. L. & POL’Y 85, 90-91 (2010).
58
Claire Cain Miller, Some See a Ploy as Craigslist Blocks Sex Ads, N.Y. TIMES, September 5,
2010, available at
http://www.nytimes.com/2010/09/06/technology/06craigslist.html?scp=4&sq=craigslist%20adult
&st=cse
54
11
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
Part III: State Attorneys General’s Response to the Problem
As Ryan Calo of the Stanford Law School’s Center for Internet & Society said,
“states’ attorneys general, having failed to win in court and in litigation, have decided to
revisit this in the court of public opinion, and in the court of public opinion, they have
been more successful.”61 Beginning in 2008, a number of state attorneys general
organized a multi-state coalition to remedy the problems they viewed as associated with
Craigslist’s “Adult Services” section. The National Association of Attorneys General has
since formed a standing committee titled the CraigsList Working Group, led by Chris
Koster of Missouri.62
Eric Gershon, Attorneys General Call on Craigslist to Eliminate ‘Adult Services’ Ads, THE
COURANT, August 24, 2010, available at http://articles.courant.com/2010-08-24/business/hcattorneys-general-urge-cragislist-20100824_1_jim-buckmaster-craigslist-ads-adult-services.
60
Michael A. Lindenberger, Craigslist Comes Clean: No More ‘Adult Services,’ Ever, TIME,
September 16, 2010, available at
http://www.time.com/time/nation/article/0,8599,2019499,00.html
61
Claire Cain Miller, Craigslist Blocks Access to ‘Adult Services’ Pages, N.Y. TIMES, September
4, 2010, available at
http://www.nytimes.com/2010/09/05/technology/05craigs.html?scp=2&sq=craigslist%20adult&st
=cse
62
See NAAG Standing Committees, http://www.naag.org/naag_standing_committees.php (last
visited January 8, 2011).
59
12
After speaking with Craigslist for “many months,” Connecticut Attorney General
Richard Blumenthal made his first public move on March 27, 2008 when he forwarded a
letter to Barry Reingold, legal counsel for Craigslist.63 In the letter, Blumenthal
demanded that Craigslist “devote resources and technology to eliminate [illegal
prostitution] postings from its site.64 In his letter he acknowledged that Craigslist claimed
to take measures to limit illegal activities but argued they were “woefully and obviously
inadequate.”65 Soon after, Craigslist met with representatives of a 43 member multistate
coalition of State Attorneys General, led by Blumenthal, and on November 6, 2008,
signed on to a joint statement with the multi-state coalition of Attorneys General and the
National Center of Missing and Exploited Children, which “announce[d] new measures
that Craigslist is taking to help combat unlawful activity and improve public safety on its
website.66 The purpose of the joint agreement was to “allow legitimate escort and other
services to continue advertising, while providing a strong disincentive to companies who
are conducting illegal business.”67
Pursuant to the terms of the agreement, Craigslist began requiring a working
phone number and payment of a small fee by credit card in order to post ads in the “Adult
Services” section.68 Craigslist also agreed to employ electronic screening of
advertisements and to tag the adult section to comply with parental screening software
63
Press Release, Office of the Connecticut State Attorney General, Attorney General Demands
Craigslist Curb Apparent Prostitution Ads (March 27, 2008), available at
http://www.ct.gov/ag/cwp/view.asp?Q=412346&A=2795 (last visited January 8, 2011).
64
Letter from Richard Blumenthal, Att’y Gen., Conn., to Barry Reingold, Attorney for craigslist,
Inc. (March 27, 2008), available at http://www.ct.gov/ag/lib/ag/consumers/craigslistletter.pdf.
65
Id.
66
Joint Statement between Craigslist, Attorneys General and National Center for Missing and
Exploited Children (“NCMEC”), November 6, 2008, available at
www.tn.gov/attorneygeneral/cases/craigslist/craigsliststatement.pdf (last visited January 7, 2011).
67
Radbord, supra note 5 at 608.
68
Craigslist Turns off Red-Light, supra note 4.
13
requirements.69 Following the agreement, Craigslist sued 14 companies that provided
services or software that help users work around Craigslist’s terms of use.70 Perhaps
most significantly, Craigslist agreed to “contribute 100% of the net revenues from these
advertisements to charity.”71 Craigslist also agreed to continue to help law enforcement
and NCMEC to identify victims of human trafficking and educate users about human
trafficking and child exploitation.72
Initially, members of the coalition of state Attorneys General were satisfied by the
terms of the agreement and optimistic about the future. In a statement to the New York
Times, Blumenthal said that “authentication will be a very significant deterrent…[as]
very few prostitutes want to be called by Craigslist and asked to give additional
identifying information.”73 As a result of these changes, Craigslist announced that there
was an over 90% reduction in the number of advertisements posted in the “Adult
Services” section between November 2008 and March 2009.74 State Attorneys General
promised to remain attentive to the issue, with Blumenthal promising, “we are going to
be extraordinarily watchful. We are concerned about any possible new area where ads
may migrate. We are not going away.”75
69
Joint Statement, supra note 35.
Id.
71
Id.
72
Id.
73
Brad Stone, Craigslist Agrees to Curb Sex Ads, N.Y. TIMES, Nov. 6, 2008, available at
http://www.nytimes.com/2008/11/07/technology/internet/07craigslist (last visited January 8,
2011).
74
Jim Buckmaster, CL Collaboration with AGs, NCMEC – Early Results, March 9, 2009,
available at http://blog.craigslist.org/2009/03/cl-partnership-with-ags-ncmec-early-results/
75
Brad Stone, Under Pressure, Craigslist to Remove “Erotic” Ads,N.Y. TIMES, May 14, 2009,
available at http://www.nytimes.com/2009/05/14/technology/companies/14craigslist.htm (last
visited January 9, 2011).
70
14
Blumenthal kept to his word: less than four months after the agreement, law
enforcement officials were already taking further action. As discussed above, in March
2009, The Cook County, Illinois Sheriff, Tom Dart, filed a Complaint alleging that
Craigslist was a public nuisance, engaged in solicitation and racketeering and “directing
persons to houses of ill-fame.”76 Craigslist responded by successfully getting the case
dismissed.77 Craigslist’s CEO, Jim Buckmaster, said in a March 6, 2009 Craigslist blog
post that he was mystified by Sheriff Dart’s actions in “bypass[ing] the Illinois Attorney
General’s office, and fil[ing] this complaint through a private law firm."78
Although Dart’s Complaint was eventually dismissed, the Attorneys General were
undeterred from seeking further measures from Craigslist. They argued that according to
state investigators, erotic services advertisers were able to use fake credit cards or
untraceable debit cards to avoid the requirements set forth in the November 2008
agreement.79 In an April 22, 2009 letter, Blumenthal proposed additional measures to be
added to the November agreement, including provisions for financial penalties imposed
for users posting illegal advertisements and financial incentives for users who report
prostitution.80 Craigslist did not implement those recommendations.
In the wake of the “Craigslist Killer’s” arrest, on May 5, 2009, Blumenthal and
the attorney generals from four other states met with Craigslist and demanded that they
76
Complaint, supra note 16.
See Part IV infra.
78
Jacqui Cheng, Craigslist trumpets 90% drop in erotic services listings, ARS TECHNICA, March
20, 2009, available at http://arstechnica.com/tech-policy/news/2009/03/craigslist-over-90-dropin-erotic-services-over-last-year.ars
79
Stone, supra note 44.
80
Press Release, Office of the Connecticut State Attorney General, Attorney General Seeks
Stronger Measures – Including Financial Penalities and Incentives – To Fight Prostitution and
Pornography on Craigslist (April 22, 2009) available at
http://www.ct.gov/ag/cwp/view.asp?A=2341&Q=438870 (last visited January 9, 2011).
77
15
eliminate the erotic services section by May 20, 2009. Blumenthal argued that it was not
enough that Craigslist cooperates with law enforcement in bringing perpetrators to
justice, because by allowing the advertisements to be published, “the victims…will carry
the scars for life.”81 In the interim, on May 15, 2009, South Carolina Attorney General
Henry McMaster threatened to commence criminal prosecution if Craigslist did not
remove the “Erotic Services” section from the site. In response, Craigslist filed a suit
enjoining McMaster’s threats of criminal prosecution based on their argument that
Craigslist is immune from the threatened prosecution under the Communications
Decency Act, 37 U.S.C. § 230(c)(1).82 As discussed above, a federal judge dismissed the
lawsuit as premature since no prosecution had begun.83
However, even while acknowledging that the law was on their side, Craigslist did
make some significant changes to the site. On May 13, 2009, representatives of
Craigslist published a blog post titled “Striking a New Balance” where they announced
their plan to shut down their “Erotic Services” category and replace it with an “Adult
Services” category.84 They also announced at this time that all postings in the newly
created “Adult Services” category would be manually reviewed for “indications of
activity that is illegal or violates the site’s guidelines” and would increase in cost from $5
81
Press Release, Office of the Connecticut State Attorney General, Attorney General, Joined by
17 Other States, Calls on Craigslist to Eliminate Adult Services Section (August 24, 2010)
available at http://www.ct.gov/ag/cwp/view.asp?a=3869&Q=464990 (last visited January 9,
2011).
82
Craigslist Wants Court to Halt S.C. Official’s Prosecution Threats: Craigslist v. McMaster. 27
NO. 2 ANDREWS COMPUTER & INTERNET LITIG. REP. 7 (June 24, 2009).
83
Meg Kinnard, Craigslist wants back into SC Lawsuit vs. McMaster, BUSINESS WEEK,
December 30, 2010, available at
http://www.businessweek.com/ap/financialnews/D9KEEQ601.htm (last visited January 8, 2011).
84
Buckmaster, supra note 1.
16
to $10 for the initial post.85 At the time, they reiterated their previous claims that “use of
Craigslist classifieds is associated with far lower rates of violent crime than print
classifieds.”86 Craigslist’s CEO, Jim Buckmaster, said that in taking this action they
“sought to incorporate important feedback from all the groups that have expressed
strongly held views on this subject, including some of the state attorneys general, free
speech advocates, and legal businesses who are accustomed to being entitled to
advertise.”87
The attorneys general argued that Craigslist’s unilateral changes were ineffective.
New York’s attorney general, Andrew M. Cuomo, said that Craigslist’s “unilateral
action…will prove to be half-baked”.88 Blumenthal said the changes were “superficial
and insufficient.”89 However, the coalition of state attorneys general did not take any
further legal or political action against Craigslist for almost a year. Blumenthal, who
released four Press Releases about Craigslist in May 2009 did not mention Craigslist
again in Press Releases until May 2010.90
On May 3, 2010, Blumenthal issued a subpoena to Craigslist requesting evidence
as to whether Craigslist was retaining profits from the fees for “Adult Services” section
that they had previously pledged to charity.91 Craigslist CEO Jim Buckmaster posted on
85
Id.
Id.
87
Stone, supra note 44
88
Id.
89
Press Release, Office of the Connecticut State Attorney General, Attorney General Says
Craigslist Erotic Services Section Inadequate (May 12, 2009), available at
http://www.ct.gov/ag/cwp/view.asp?A=3673&Q=439910 (last visited January 9, 2011).
90
See Press Releases by Date, Office of the Connecticut State Attorney General, available at
http://www.ct.gov/ag/cwp/view.asp?a=1780&q=294038&agNav=|42768|
91
Press Release, Office of the Connecticut State Attorney General, Attorney General Issues
Subpoena to Craigslist Seeking Evidence of Efforts to Block or Profit from Illegal Prostitution
Ads (May 3, 2010), available at http://www.ct.gov/ag/cwp/view.asp?A=2341&Q=459698.
86
17
the Craigslist blog that “Craigslist has gone beyond fulfilling its legal obligations, far
beyond classifieds industry norms, has more than lived up to any promises it made, and
working together with its partners is in fact a leader in the fight against human trafficking
and exploitation.”92
On August 24, 2010, Blumenthal and attorneys general from 17 other states sent a
letter to Craigslist demanding that they immediately eliminate the ‘Adult Services’
section of their website, arguing that “Craigslist is the only player in the sex industry who
is in a position to stop these ads before they are published.”93 On September 4, 2010,
without comment, and likely due to pressure applied from the state attorneys general,
Craigslist replaced their “adult services” section of their U.S. website with a black
“censored” box.94 On September 15, 2010, Craigslist confirmed that the section was
permanently closed in their statement before the House Judiciary Committee’s
subcommittee on Domestic Minor Sex Trafficking.95 On December 21, 2010, Craigslist
removed the “Adult Services” section from all of their sites outside of the United States.96
Part V: Policy Arguments For and Against State AG Action
There are many organizations and academics that praise the state attorneys
general’s push to eradicate the “Adult Services” section of Craigslist. The state attorneys
general’s extralegal encouragement helped bring attention to important public policy
issues like trafficking and child exploitation, helped regulate an international arena that
would otherwise be nearly impossible to control, and prevented a corporation from
92
Jim Buckmaster, Deja Blumenthal, May 3, 2010, http://blog.craigslist.org/2010/05/
Letter from Richard Blumenthal, Connecticut Attorney General, to Jim Buckmaster and Craig
Newmark, August 24, 2010, available at www.ohioattorneygeneral.gov/craigslistLetter (last
visited January 11, 2010).
94
Craigslist Turns off Red-Light, supra note 4.
95
Rigg, supra note 14 at 41.
96
Hennigan, supra note 2.
93
18
financially benefiting from illegal activity. However, there have also been vocal critics
against the state attorneys’ general campaign against Craigslist, arguing that the
attorneys’ general actions will ultimately hurt those forced into prostitution or trafficked
while reducing freedom of speech under the First Amendment.97
Many organizations that work against human trafficking supported the state
attorneys’ general campaign to close down “Adult Services.”98 On September 8, 2010,
four organizations, the Polaris Project, Rebecca Project for Human Rights, FAIR Fund
and Courtney’s House, who all work to end sex trafficking, issued a public statement
asking Craigslist to completely shut down the Adult Services sections of the site across
the globe. As of that date, Craigslist had only closed down the section in the United
States.99 Before that, they asked in an open letter to Craigslist: "Where is your outrage?
Craig, if this were a bar and children were being raped in the basement we would close
the bar down to protect the children. We are asking you to do what’s right, close down
the adult services section until you have an effective solution that ensures children will
not be bought and sold online."100 The support of these organizations bolstered the
legitimacy of the state attorneys general’s actions. The Coalition Against Trafficking in
Women filed an amicus brief citing policy reasons for holding Craigslist liable for the
97
Miller, supra note 92.
Brad Stone, More on Craigslist and Its Adult Services Ad, N.Y. TIMES, April 29, 2010,
available at http://bits.blogs.nytimes.com/2010/04/29/more-on-craigslist-and-its-adult-servicesads/
99
Claire Cain Miller, Craigslist Pulls ‘Censored’ Label from Sex Ads Area, N.Y. TIMES,
September 9, 2010, available at http://bits.blogs.nytimes.com/2010/09/09/craigslist-pullscensored-label-from-sex-ads-area/?scp=3&sq=craigslist%20adult&st=cse
100
Malika Saada Saar, Craigslist Response to Girl Survivors of Domestic Sex Trafficking.
HUFFINGTON POST, August 23, 2010, available at http://www.huffingtonpost.com/malika-saadasaar/craigslist-response-to-gi_b_691249.html
98
19
cited causes of action in Dart v. Craigslist, including that internet prostitution facilitates
human trafficking and prostitution is “damaging and not usually freely chosen.”101
In order to understand many of the arguments against the state attorneys general
actions, one must first understand the measures put in place voluntarily by Craigslist to
monitor the “Adult Services” section and compare that to the rest of the classified
industry. In an interview with CNN, Craigslist CEO Jim Buckmaster outlined some of
the measures that Craigslist voluntarily undertook in connection with the “Adult
Services” section that other print and online classified providers did not incorporate,
including:
1.
2.
3.
4.
5.
Educating and encouraging users to report trafficking and exploitation
Prominently featuring anti-trafficking and exploitation resources,
Creating specialized search interfaces for law enforcement
Providing support for law enforcement anti-crime sweeps and stings
Actively participating in the National Center for Missing and Exploited
Children’s cyber-tipline program
6. Leading all awareness efforts for the National Trafficking Hotline
7. Meeting regularly with experts at nonprofits and in law enforcement
8. Manually reviewing every adult service ad before posting
9. Requiring phone verification for every adult service ad
10. Implementing the PICS content labeling system.102
In his testimony before the House Judiciary Committee’s subcommittee on
Domestic Minor Sex Trafficking, Craigslist representative William Clinton Powell
referred to Craigslist as “one of the few bright spots and success stories in the critical
fight against trafficking and child exploitation.”103 He argued that the closure of the
“Adult Services” section would be harmful to women and children, as Craigslist had
101
McDonald, supra note 12 at 47.
Jim Buckmaster, Craigslist Vigilant in Barring Child Sex Ads, CNN, August 10, 2010,
available at http://www.cnn.com/2010/OPINION/08/04/buckmaster.craigslist.rebuttal/
103
Testimony of William Clinton Powell of Craigslist Before the U.S. House of Representatives
Judiciary Committee (September 15, 2010), available at
http://judiciary.house.gov/hearings/pdf/Powell100915.pdf
102
20
enacted measures that helped protect women and prosecute perpetrators.104 They argued
that by closing down the “Adult Services” section, advertisers simply moved to other
venues with fewer regulations and cooperation with law enforcement.105 Arguably, the
“Craigslist Killer” may have killed again if he had used a different website to coordinate
his meeting with his victim. Craigslist helped the Boston Police Department identify and
find the defendant by helping them discover the “digital trail” left by Markoff.106
Craigslist’s argument is confirmed by increased traffic to Backpage.com, the
Village Voice’s classified advertisement bulletin board service. Less than a day after
Craigslist removed the section, Gawker media, a popular blog, had published a blog post
titled, “Your Post-Craigslist Guide to Buying Sex Online,” which received nearly
100,000 visits as of March 2011.107 Others have noted that after “Adult Services” was
shut down, advertisements for prostitution moved to the “casual encounters” section or
“therapeutic services” section of Craigslist sites.108 These sections are not manually
reviewed, do not require credit card and telephone number verification and rely solely on
the community to flag illegal or offensive advertisements.
As Rigg points out in his article, “shutting down the category on Craigslist will
more likely exacerbate the problem and make it harder for law enforcement to curtail
because it will be more difficult to find perpetrators than before.” The State Attorneys
General did not fail to see this problem – less than a week after Craigslist shut down the
104
Rigg, supra note 14 at 42.
Testimony of William Clinton Powell, supra note 102.
106
Melissa Gira Grant, The Craigslist Sex Panic: How Shutting Down Its “Erotic Services”
Section Hurts Prostitutes and Cops, SLATE, May 27, 2009, available at
http://www.slate.com/id/2219167.
107
Adrien Chen, Your Post-Craigslist Guide to Buying Sex Online, GAWKER, September 5, 2010,
available at http://gawker.com/5630687/your-post+craigslist-guide-to-buying-sexonline?skyline=true&s=i (last accessed March 19, 2011)
108
Miller, supra note 98.
105
21
“Adult Services” section, a 21 member multi-state coalition forwarded a letter to the
attorney for backpage.com requesting that backpage “immediately take down the adult
services portion of backpage.”109 However, the nature of the Internet and the current
state of the law, as described above, provides an atmosphere where with the shutdown of
each of these sites, the harmful advertisements are likely to migrate to a different, less
regulated site.
Danah Boyd, a senior researcher with Microsoft Research, stated that “current
efforts to censor Craigslist’s “adult services”…fundamentally helps pimps, human
traffickers and others who profit off of abusing others.110 She based her argument on
three premises: that ISPs, like Craigslist, have an interest in protecting people, that
making illicit activities visible serves advocacy purposes and that a “one-stop-shop is
more helpful for law enforcement than for criminals.”111 She argues that companies that
provide internet services must rely on customer loyalty and “what makes Craigslist
especially beloved is that it is run by people who truly want to make the world a better
place and who are deeply committed to a healthy civic life.”112 She also points out the
potential impure intentions of the attorneys general when she argues, “there’s a lot more
political gain to be had demonizing profitable companies than demanding more money be
spent (and thus more taxes be raised) supporting the work that law enforcement does.”113
Letter from Richard Blumenthal, Att’y Gen., Conn., to Samuel Fifer, Attorney for
backpage.com (September 21, 2010), available at
http://www.ct.gov/ag/cwp/view.asp?a=3869&Q=466074
110
Danah Boyd, How Censoring Craigslist Helps Pimps, Child Traffickers and Other Abusive
Scumbags, HUFFINGTON POST, September 6, 2010, available at
http://www.huffingtonpost.com/danah-boyd/how-censoring-craigslist-_b_706789.html
111
Id.
112
Id.
113
Id.
109
22
However, while anti-trafficking organizations acknowledge this reality, they are
not persuaded it supports the upkeep of the “Adult Services” section. Ernie Allen, the
chief executive of the National Center for Missing and Exploited Children, said that
removing the “Adult Services” category from Craigslist is progress even if it does move
to other services because, “the goal is to destroy the business model of those who sell
children for sex on the Internet.”114 He told the New York Times that now the attorneys
general and groups like NCMEC will “broaden the focus beyond Craigslist and urge
every online classified site to take action.”115
Advocates also criticize the state attorneys general campaign against Craigslist on
free speech and net neutrality grounds. In their erotic services FAQ, last updated April
21, 2009, Craigslist states that “when it comes to legal conduct between consenting
adults, we feel it is important to err on the side of respecting free speech and privacy
rights.”116 Free speech advocates, such as Charles Nesson of the Berkman Center for
Internet and Society at Harvard University, believe that “in the grand battle of good and
evil…there is divinity in the open net.”117 Craigslist’s actions have confirmed this belief,
because, as discussed above, they have taken voluntary actions to eradicate illegal content
from the site.118 Matt Zimmerman of the Electronic Frontier Foundation, an organization
that fights for Internet freedom, criticized the pressure for removal of the “Adult
114
Claire Cain Miller, Craigslist Says it Has Shut its Section for Sex Ads, September 15, 2010,
N.Y. TIMES, available at
http://www.nytimes.com/2010/09/16/business/16craigslist.html?ref=craigslist
115
Id.
116
Craigslist FAQ, supra note 13.
117
Kunze, supra note 28.
118
See, infra Part II
23
Services” section on free speech grounds.119 As he explained, Section 230 was passed in
part to protect First Amendment-protected speech. If providers, like Craigslist, could be
held liable for their user’s postings, they would be “transformed into conservative content
reviewers, permitting only the speech they could be sure would not trigger lawsuits.”120
Zimmerman argues that “AGs at minimum owe it to the public to be honest about the
First Amendment impact of what they are proposing.”121
Conclusion
While Craigslist is certainly not perfect and there have been serious incidents
arising from its use, it is debatable whether it is desirable for the “Adult Services” section
to be closed down. State attorneys general have an obligation to the citizens of their state
to act in the public interest. Furthermore, as members of the executive branch, they are
entrusted with the responsibility to enforce the laws, not make the laws. By involving
themselves in cases where they know the law is against them, they are potentially using
their political power in furtherance of their own political goals, not the goals of the
public. This could be particularly dangerous when multi-state coalitions with great
power to influence corporations choose to involve themselves in moral issues.
Matt Zimmerman, Beyond “Censored”: What Craigslist’s “Adult Services” Decision Means
for Free Speech, ELECTRONIC FREEDOM FOUNDATION, September 8, 2010, available at
http://www.eff.org/deeplinks/2010/09/craigslist-beyond-censored.
120
Id.
121
Id.
119
24