May 6, 2009 | By Matt Zimmerman

AGs v. Craigslist: Putting the Bully Back Into Bully Pulpit

Here we go again. On Tuesday, South Carolina Attorney General Henry McMaster notified craigslist CEO Jim Buckmaster that unless craigslist removes its erotic services section within 10 days, "craigslist management may be subject to criminal investigation and prosecution." McMaster's threat comes on the heels of increasingly bellicose rhetoric in recent weeks from other AGs such as Rhode Island AG Patrick Lynch, Illinois AG Lisa Madigan, and Connecticut AG Richard Blumenthal. The case further echos the suit brought by Cook County (Illinois) Sheriff Thomas Dart back in March seeking, among other things, compensation for funds the County spent on combating prostitution.

The AGs would almost certainly lose any such threatened lawsuit.

Craigslist, as previous courts have held, is protected by federal law. Section 230 of the Communications Decency Act, passed in 1996, immunizes providers of "interactive computer service" such as Craigslist -- website operators, ISPs, domain name registrars -- from state criminal liability for content posted by third parties. Under CDA 230, it is irrelevant that such a service might have known about the posts or could have done more to block them. Indeed, one of the explicit rationales for passing CDA 230 in the first place was to protect service providers who wanted to engage in the kinds of self-regulatory measures as Craigslist has already done to help limit access to sexually explicit materials online. As California Representative Christopher Cox noted in support of the future statute, CDA 230 would “protect [online service providers] from taking on liability ... that they should not face ... for helping us solve this problem” as well as establish a federal policy of nonregulation to “encourage what is right now the most energetic technological revolution that any of us has ever witnessed.” The notion that craigslist (and their officers!) should be held responsible for third party content on their site because they didn't do enough to satisfy the individual whims of respective state attorneys general is wholly inconsistent with the law.

In fact, craigslist has gone far beyond their obligations under the law. In November of 2008, craigslist agreed to implement a series of technical and policy changes to curb the use of their site for illegal purposes by third parties, including (among other things) requiring telephone and credit card verification for "erotic services" ads posted on their site, automatically blocking certain ads that it believes may be illegal, tagging adult-oriented ads to help facilitate the effectiveness of parental-screening software, improving its search capabilities in an attempt to help law enforcement to locate missing persons and identify exploited minors and victims of human trafficking, and the like. Even before their November 2008 agreement, according to craigslist, the number of erotic services ads dropped 90% as a result of craigslist's own internal efforts to screen ads that violated their terms of service. Despite these efforts and results, it appears that some of craigslist's governmental critics will remain unsatisfied unless they can control the ad categories offered on the site.

Attorney General Henry McMaster has no case. Neither do AGs Lynch or Blumenthal. And neither does Sheriff Dart, as craigslist explained Monday in their motion to dismiss his March lawsuit. While the AGs may wish it was not so, federal law protects craigslist and no amount of posturing will change that fact.

And that's a good thing. The existence of sites that rely on third party content depends on strong uniform legal protections against liability based on material posted by users. If site operators were forced to screen all third party contributions under risk of civil or criminal penalty, the Internet would lose many of the vibrant services that have made it so dynamic. The problem would be further compounded if, as these state AGs now suggest, each state was able to put together its own wish list instructing website operators how to treat third party content. Under such a radical re-envisioning, the Internet would ultimately become the province of rich and cautious media companies who would actively serve as gatekeepers to decide whether and how users could engage with the world. The AGs are wrong to promote such a profound change... and out of line to suggest that such a legal world already exists.


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