Craigslist is once again in the news for enabling illegal activity. Above the Law, known for terrifying the legal community with the latest layoff numbers, recently reported on a “law student” who published a Craigslist ad of questionable legality with even more questionable “legal disclaimers.” Additionally, Cook County Sheriff Tom Dart filed suit in federal court last week alleging that the online classifieds website is “facilitating prostitution.” Dart called the site “the single largest source of prostitution in the nation.” The sheriff is asking the court to enjoin Craigslist from posting listings under the “erotic services” section, and to award $100,000 in compensation for police time spent investigating allegedly illegal postings.

Craigslist, which has been called the “world’s biggest bordello,” is no stranger to legal woes. Other recent Craigslist crimes include felony charges against a Florida man for selling cocaine to undercover agents. In another bizarre event, an angry woman decided to get back at her ex-boyfriend by posting a personal ad under his name and listing his work telephone number in the men seeking men section. She’s now facing felony identity theft charges. There are, in fact, entire websites devoted to reporting on crimes committed through Craigslist.

Regarding postings under its “erotic services” section, Craigslist recently reached an agreement with 40 state attorneys general in response to their demands that the website better enforce its own policies and take down illegal material. Under this new agreement, Craigslist said it would begin charging “erotic services” posters a nominal fee by credit card, which is intended to enable the site to better confirm posters’ identities. (The money would be donated to charities working to fight human trafficking and exploitation of minors.)

Item 7 under Craigslist’s Terms of Use forbids users from posting any material that is unlawful or pornographic. The list of “Prohibited Items” also explicitly states that postings for the “offer or solicitation of illegal prostitution,” among other things, are not permitted. Before visiting the “personals” sites, one is directed to a disclaimer. By clicking to continue, one certifies that he or she is at least 18 and is aware there may be adult content on the site. One also agrees to flag any inappropriate or illegal content or postings which may violate the terms of use and to report suspected exploitation of minors. Finally, by continuing to the listings, one agrees to “release craigslist from any liability that may arise from…use of this site.” To view postings under “erotic services,” a user is further warned that “Human trafficking and exploitation of minors are not tolerated – any suspected activity will be reported to law enforcement.”

The system doesn’t seem to be working, however. A quick (and disturbing) glance at the first few postings under Nashville’s “casual encounters” and “exotic services” revealed multiple violations of the terms of use and postings of questionable legality. (The author would note that she duly flagged all suspected violations.) The Cook County Sheriff also noted that blatant violations go unchecked. For example, an undercover police officer who posted for a “15-year-old looking for sex” received three responses, including one from a registered sex offender. A similar posting for a 14-year-old received no complaints and remained posted. It is unlikely that a person seeking to respond to these ads would “flag” the inappropriate/illegal content. Monitoring by users is therefore an ineffective way of combating illegal postings.

So who’s to blame? Should Craigslist be responsible for monitoring the photographs and content of these posts? Should the service be charged with facilitating illegal activity when users violate both the terms of service and the law? I argue that Craigslist should be held responsible for the content of these postings. Despite the Craigslist CEO’s claims of protection under federal law, it is unlikely that Craigslist should be protected by the Communications Decency Act, which offers broad immunity to web hosts for the postings on their sites and was intended to shield webhosts from civil suits resulting from the libelous postings of users.

Although cases like Chicago Lawyer’s Committee v. Craigslist have held that this Act covers illegal postings such as those violating Fair Housing Standards, it is doubtful that Congress intended to shield webhosts like Craigslist from the duty to affirmatively monitor illegal/pornographic postings. This law should not be stretched to relieve websites like Craigslist from the duty to affirmatively monitor illegal activities. Like newspapers that disseminate personal and exotic ads in print, web classified services should be held to the same oversight standards, even though they usually operate on a larger scale. Due to the nature of these crimes, which is so vastly different from discrimination, the inconvenience monitoring should not be allowed as a defense in this case.

Rachel Perkins

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7 Responses to Craigslist: Free Speech or Digital Pimp?

  1. Your blog is very interresting for me, i will come back here..

  2. Author says:

    UPDATE: After much pressure from states attorneys general, Craigslist has agreed to replace the “erotic services” section with an “adult services” section. Each post will be individually screened by Craigslist employees to help prevent the site being used for prostitution and pornography.

    http://www.cnn.com/2009/TECH/05/13/craigslist.sex.ads/index.html

  3. Author says:

    I would have thought all the recent media about Philip Markoff would have proven that this issue is no laughing matter.

    The article’s point is not that “escort services” should be banned. But these should be monitored. Your phone book doesn’t have sexually explicit dialogue and pictures of the poster’s genetalia. The ads in your phone book also don’t advertise for underage escorts.

    What I am arguing is that if Craigslist wants to allow the posting of pornography (or if it wants to conduct a laissez faire approach to monitoring its postings), it should be regulated as a pornography website. If it wants to operate as a classified ads website (or phonebook ads website, if you prefer), then it should be held to the same standards as its in-print counterparts.

  4. John Galt says:

    I guess “Escort Services” ads found in millions of phone books in the US are ok though. What a joke.

  5. Gary says:

    I Think the erotic section should be
    Montered for content

  6. gd says:

    It seems like part of the reason people won’t flag posts like “14 year old” is that they don’t want to click them in the first place. Not many people want to have that in their internet history, even if it was done to flag the post as inappropriate.

  7. hb says:

    And yet the thousands upon thousands of established porno websites, a significant percentage or perhaps even most of which enable the very same (or worse) ‘illegal’ activities as those found on Craigslist…are essentially left alone by policing agencies and states attorneys general.

    Looks like Craigslist hasn’t paid off the proper people. Stupid.