Craigslist Censored:



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 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]

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]

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 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]

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 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 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 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 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 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. Educating and encouraging users to report trafficking and exploitation

2. Prominently featuring anti-trafficking and exploitation resources,

3. Creating specialized search interfaces for law enforcement

4. Providing support for law enforcement anti-crime sweeps and stings

5. 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 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 , 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 “Adult Services” section, a 21 member multi-state coalition forwarded a letter to the attorney for 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]

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 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.

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[1] Before May 13, 2009, this section was labeled “Erotic Services” (See Jim Buckmaster, Striking a New Balance, Craigslist Blog, May 13, 2009, available at (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 (last visited January 9, 2011)

[3] See Craigslist FAQ, http:// 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)

[6] Craigslist Factsheet, craigslistorg/about/factsheet (last visited January 7, 2011).

[7] Id.

[8] Id.

[9] Brad Stone, Sex Ads Seen Adding Revenue to Craigslist, N.Y. Times, April 25, 2010, available at (last visited January 9, 2011).

[10] See Craigslist Homepage, (last visited January 10, 2011).

[11] 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:// 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).

[16] Complaint, Dart v. Craigslist Inc., 09-CV1385 (N.D. Ill. March 5, 2009), available at (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 (last visited January 10, 2011).

[21] Christine Hauser, 7 Accused of Using Craigslist for Prostitution, N.Y. Times, May 20, 2009, available at (last visited January 10, 2011).

[22] Scott Michels, Ad for Online Nanny Lured Woman to Her Death, ABC News, October 29, 2007, available at (last visited January 9, 2011).

[23]AFNAP: About Us, available at (last visited March 19, 2011).

[24] Men Who Buy Sex with Adolescent Girls: A Scientific Research Study.

[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 (last visited January 9, 2011).

[28] Rigg, supra note 14 at 2.

[29] 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).

[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.

[39] Complaint, supra note 16.

[40] 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.

[47] Kinnard, supra note 55.

[48] 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.

[53] Reno v. ACLU, 521 U.S. 844, 845-46 (1997).

[54] 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

[59] Eric Gershon, Attorneys General Call on Craigslist to Eliminate ‘Adult Services’ Ads, The Courant, August 24, 2010, available at .

[60] Michael A. Lindenberger, Craigslist Comes Clean: No More ‘Adult Services,’ Ever, Time, September 16, 2010, available at

[61] Claire Cain Miller, Craigslist Blocks Access to ‘Adult Services’ Pages, N.Y. Times, September 4, 2010, available at

[62] See NAAG Standing Committees, (last visited January 8, 2011).

[63] Press Release, Office of the Connecticut State Attorney General, Attorney General Demands Craigslist Curb Apparent Prostitution Ads (March 27, 2008), available at (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 .

[65] Id.

[66] Joint Statement between Craigslist, Attorneys General and National Center for Missing and Exploited Children (“NCMEC”), November 6, 2008, available at 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.

[69] Joint Statement, supra note 35.

[70] Id.

[71] Id.

[72] Id.

[73] Brad Stone, Craigslist Agrees to Curb Sex Ads, N.Y. Times, Nov. 6, 2008, available at (last visited January 8, 2011).

[74] Jim Buckmaster, CL Collaboration with AGs, NCMEC – Early Results, March 9, 2009, available at

[75] Brad Stone, Under Pressure, Craigslist to Remove “Erotic” Ads,N.Y. Times, May 14, 2009, available at (last visited January 9, 2011).

[76] Complaint, supra note 16.

[77] See Part IV infra.

[78] Jacqui Cheng, Craigslist trumpets 90% drop in erotic services listings, Ars Technica, March 20, 2009, available at

[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 (last visited January 9, 2011).

[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 (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 (last visited January 8, 2011).

[84] Buckmaster, supra note 1.

[85] Id.

[86] 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 (last visited January 9, 2011).

[90] See Press Releases by Date, Office of the Connecticut State Attorney General, available at

[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 .

[92] Jim Buckmaster, Deja Blumenthal, May 3, 2010,

[93] Letter from Richard Blumenthal, Connecticut Attorney General, to Jim Buckmaster and Craig Newmark, August 24, 2010, available at 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.

[97] Miller, supra note 92.

[98] Brad Stone, More on Craigslist and Its Adult Services Ad, N.Y. Times, April 29, 2010, available at

[99] Claire Cain Miller, Craigslist Pulls ‘Censored’ Label from Sex Ads Area, N.Y. Times, September 9, 2010, available at

[100] Malika Saada Saar, Craigslist Response to Girl Survivors of Domestic Sex Trafficking. Huffington Post, August 23, 2010, available at

[101] McDonald, supra note 12 at 47.

[102] Jim Buckmaster, Craigslist Vigilant in Barring Child Sex Ads, CNN, August 10, 2010, available at

[103] Testimony of William Clinton Powell of Craigslist Before the U.S. House of Representatives Judiciary Committee (September 15, 2010), available at

[104] Rigg, supra note 14 at 42.

[105] 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 .

[107] Adrien Chen, Your Post-Craigslist Guide to Buying Sex Online, Gawker, September 5, 2010, available at (last accessed March 19, 2011)

[108] Miller, supra note 98.

[109] Letter from Richard Blumenthal, Att’y Gen., Conn., to Samuel Fifer, Attorney for (September 21, 2010), available at

[110] Danah Boyd, How Censoring Craigslist Helps Pimps, Child Traffickers and Other Abusive Scumbags, Huffington Post, September 6, 2010, available at

[111] Id.

[112] Id.

[113] Id.

[114] Claire Cain Miller, Craigslist Says it Has Shut its Section for Sex Ads, September 15, 2010, N.Y. Times, available at

[115] Id.

[116] Craigslist FAQ, supra note 13.

[117] Kunze, supra note 28.

[118] See, infra Part II

[119] Matt Zimmerman, Beyond “Censored”: What Craigslist’s “Adult Services” Decision Means for Free Speech, Electronic Freedom Foundation, September 8, 2010, available at .

[120] Id.

[121] Id.

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