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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.)
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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