The Associated Press is reporting that craigslist has decided to replace the "erotic services" section of its site with a new adult category that will be reviewed by craigslist staff (craigslist just issued a statement confirming the change). The decision follows several months of pressure from officials in a number of states who have been trying to force the online classified site to drop its "erotic services" section, claiming that the ads facilitate prostitution.
As we and others have noted (see here, here, and here), craigslist is entitled to broad immunity under section 230 of the Communications Decency Act ("Section 230"), the federal statute that protects operators of websites and other interactive computer services from liability for publishing the statements of third parties. Section 230's protection is not limited to civil liability. And while it does not apply to federal criminal law, see 47 U.S.C. § 230(e)(1), the most plausible reading of the statute's language is that it preempts state criminal actions inconsistent with it.
But this hasn't stopped state officials from trying to bully the site's operators into removing sexually explicit postings (and photographs) from the site, which carries over 30 million new ads each month, according to the BNA. Back in March, for example, Thomas Dart, the Sheriff of Cook County, Illinois, filed a lawsuit against craigslist asserting that the site is a "public nuisance" (craigslist recently filed a motion to dismiss the lawsuit). And just last week, South Carolina Attorney General Henry McMaster sent a letter to craigslist CEO Jim Buckmaster threatening company management with "criminal investigation and prosecution" over the site's classified ads.
Even though craigslist isn't likely to face legal liability for the postings of its users, it has taken a number of steps to help reduce the likelihood that the erotic services listings were being used to facilitate prostitution. In November of 2008, craigslist came to an agreement with the National Center for Missing and Exploited Children and the attorneys general of more than 40 states to reduce the number of such ads, including implementing phone and credit card verification systems in March 2008. Craigslist also filed lawsuits 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 year.
As I noted in a previous post, it's unlikely that the removal of the erotic services section will eliminate these types of postings. 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."
After all, it is not illegal for consenting adults to post ads seeking sexual trysts. If sex is provided in exchange for money it's a different story, of course, but how will craigslist be in a position to know that someone has crossed that line (unless the ad states it explicitly)? Will they be forced to remove any ads that refer to sexual activity? Do we really want craigslist, or the state attorneys general for that matter, enforcing sexual morality?