Last Thursday, Thomas Dart, the Sheriff of Cook County, Illinois, filed a lawsuit against online classified site Craigslist, claiming that the site is a "public nuisance" because its users post ads in the "erotic services" category that facilitate prostitution. Yes, you read that correctly. The top law enforcement officer in Cook County is using a civil lawsuit to go after Craigslist because he believes users of the site are creating a "public nuisance."
The civil complaint, filed by the Sheriff in his official capacity, seeks an injunction, compensatory and punitive damages, and attorneys' fees. According to Sheriff Dart, Craigslist creates a "public nuisance" because its "conduct in creating erotic services, developing twenty-one categories, and providing a word search function causes a significant interference with the public's health, safety, peace, and welfare." Compl. ¶ 92.
Craigslist CEO Jim Buckmaster says the Sheriff's actions are mystifying. That's an understatement, I think. Buckmaster said the company spoke with Sheriff Dart in 2007 about its "erotic services" section.
Since then, we have not only initiated multiple new measures to further reduce misuse of our website by anyone intending criminal activity, we also reached an agreement with 40 state attorneys-general, including Illinois Attorney General Lisa Madigan, about an enforcement plan designed to protect the public from those who would misuse our site.
In fact, the complaint reads more like a PR pitch than a viable theory of liability, containing such "rhetorical gem[s]" as the statement that "[a]dvocacy groups consider the website to be one of the largest sources for prostitution in the country." Compl. ¶ 1.
Should Craigslist be doing what it can to prevent prostitution? Absolutely. But it shouldn't face liability if some users of its services engage in illegal activities. Craigslist carries over 30 million new classified ads each month, according to the BNA. Moderating this deluge would be nearly impossible, even if Craigslist charged for its ads, which it doesn't do at this point.
Do we really want to put Craigslist in the position of having to vouch for every ad it runs? Congress answered this question emphatically in 1996, when it passed Section 230 of the Communications Decency Act. Section 230 has most frequently been applied to bar defamation-based claims, but immunity under Section 230 is not limited to defamation or speech-based torts. Courts have applied Section 230 to bar claims such as invasion of privacy, negligence, misappropriation, and most recently in a case brought against Craigslist (Chicago Lawyers' Comm. for Civ. Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666 (7th Cir. 2008)), a claim that the site violated the Fair Housing Act because it allowed its users to post disciminatory housing ads. In that case, the Seventh Circuit deemed Craigslist to be "merely [a] distributor of content" and thus not liable for the discriminatory housing ads.
Dart's assertions that Craigslist should be liable because it provides an erotic services section, word search functions, and ostensibly has knowledge that ads for prostitution are posted on its site appear to be designed to get around the Seventh Circuit's previous decision involving Craigslist and instead make this case more like the Roommates.com case (Fair Housing of Council of San Fernando Valley v. Roommates.com, CV-04-56916 (9th Cir. 2008)), in which the Ninth Circuit held that Roommates.com bore liability because the site assisted in the creation of illegal content by requiring users to make discriminatory statements (through pre-populated drop-down boxes) on the site.
Is such an argument likely to succeed? I highly doubt it. But don't take my word for it, as Eric Goldman succinctly notes, "this lawsuit is almost certainly preempted by 47 USC 230."
It's not like Sheriff Dart is powerless to go after illegal activity. He has the full complement of law enforcement tools at his disposal, after all. Nor is Craigslist throwing up its hands and doing nothing. In Buckmaster's statement, he pointed out that last November the site "reached an agreement with 40 state attorneys-general about creating a new enforcement plan for Craigslist." Craigslist also filed suit against 14 companies and individuals who were accused of using the site to facilitate human trafficking, child exploitation, and prostitution. As a result of these steps, Craigslist says it has reduced erotic services ads by 90-95% in the past 12 months.
A drop of 90 to 95 percent is clearly a significant reduction, but it's not enough for Sheriff Dart who wants the court to order Craigslist to shutdown its erotic services category. With that section gone, however, can we expect that listings for these types of services will go away? I doubt it. According to Craigslist's FAQ, the "erotic services" category "was established at the request of craigslist users, who were tired of seeing ads for escort services, sensual massage, adult web cams, phone sex, erotic dancing, adult websites, nude housecleaning, etc mixed into the regular personals and services categories."
The only way to stop these ads completely is to shutdown Craigslist. Perhaps that is Sheriff Dart's ultimate goal.
(To follow developments in the case, see our legal threats database entry, Dart v. Craigslist, Inc.)