Despite Crackdown, Craigslist's Sex Ads Are Thriving
"The craigslist brothel business seems booming -- belying its promise to fight prostitution," Blumenthal said after issuing the subpoena Monday. "We are asking craigslist for specific answers about steps to screen and stop sex-for-money offers -- and whether the company is actually profiting from prostitution ads that it promised the states and public that it would try to block."
Immunity Under the Internet "Decency" Act
Prostitution is generally illegal in the United States and it's illegal for media outlets to facilitate the practice by publishing advertisements. Under the law, the publisher is believed to have the opportunity to read and edit content before publishing it, and thus publishing it is a kind of endorsement, a reiteration of the content. So why can Craigslist offer an "adult services" section of its famed classified services?
Ironically, it's because of the 1996 Communications Decency Act. Although the primary focus of the Act is to shield children from adult content on the Internet, Section 230 of the Act states that any "interactive computer service" is not a publisher of the content that third parties post, and thus is immune from lawsuits or prosecution based on the material its users post.
The immunity provided by the Communications Decency Act is very broad, and although it does not cover criminal activity, it does cover prostitution ads on Craigslist. Thus far, law enforcement has failed in court to pierce Craigslist's immunity.
Big Profits in Prostitution Ads
Just because Craigslist has no legal obligation to prevent prostitution and human trafficking ads on its website, it doesn't mean that the company has acted with indifference to the horrors of those crimes. Indeed, if you go to the adult services section of the site, the first thing you encounter is a warning about adult content and a disclaimer that contains a link to report "suspected exploitation of minors and/or human trafficking. More significantly, in 2008, Craigslist agreed to crack down on the ads, and signed a "Joint Statement" with the National Center for Missing and Exploited Children and the Attorneys General of 40 states, led by Connecticut AG Richard Blumenthal, pledging to take several steps to reduce the volume of illegal sex ads on its site. Despite the agreement, the volume of ads and the type of ads on the adult services section didn't seem to change, although some of the photos got less explicit. Ironically, one of the steps Craigslist agreed to take -- to start charging users a fee for placing an adult listing -- has turned into a major profit engine for the site.
The AGs and Craigslist agreed in 2008 that adult ads shouldn't be free, and that posters of the ads should have to pay by valid credit card. The theory behind the move was that criminals wouldn't want to post an ad for fear of exposing themselves to prosecution. Moreover, Craigslist pledged that all revenues from the ads would go to charity. But then last May, Craigslist doubled the fee for such ads from $5 to $10 and, at the same time, said it would manually review the ads in an effort to better police the site. (Perhaps the increased revenue funded that extra effort? The press release doesn't say.)
In the same press release, Craigslist said it was renaming its "erotic services" section to "adult services" and, as a result of this change, would no longer direct the net profits from the ads to charity as it considered its pledge fulfilled. (Craigslist said it remained committed to its charitable efforts overall.) It's difficult to determine how much money Craigslist started pocketing from this change, but it's safe to say it was substantial. It's estimated that the adult services ads brought in some $36 million in revenue last year -- about one-third of Craigslist's total revenue for the year.
Are the AGs FIghting a Losing Battle?
All of the specific steps Craigslist pledged to take in its agreement with the Attorneys General have apparently proved ineffective. According to law enforcement, ads for prostitution are proliferating and are barely disguised on the site. "The best evidence is thousands of ads that remain on craigslist -- skimpily and slickly disguised with code words," said Blumenthal earlier this week.
By issuing a subpoena to the company seeking evidence of all of the web site's efforts, Blumenthal is trying to determine whether the continued popularity of the ads is due to the ineffectiveness of the measures that Craigslist pledged to take or a lack of follow-through on Craigslist's part. On its blog, Craigslist dismisses Blumenthal's move as a publicity stunt, and emphasizes 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."
If Craigslist is delivering on all of its promises as claimed, then what? The AGs will have to figure out which measures would be more effective. Even if they figured out which steps would work, without legal leverage, the AGs may not be able to coerce Craigslist to take further steps to police it site.
If Craigslist isn't following through on its agreement -- er, joint statement -- the AGs still don't have much of a leg to stand on. The document doesn't have any teeth -- there's no enforcement provision, no penalties in it. Given its rock solid immunity, why would Craigslist sign anything truly binding anyway? The most threatening statement Blumenthal could muster in his subpoena press release was "We're seeking answers, so we can reach legal conclusions. If [Craigslist] is breaking its promises to the public, it may be breaking the law."
With the law likely not on his side even if Craigslist isn't following through, Blumenthal's most potent weapon is public shame. And if the subpoenaed records show that despite its promises, Craigslist is doing nothing to stop the sex industry's use of the web site, shame is well deserved. Nonetheless as a private company it's not clear that public shame is all that powerful of a weapon.