Why Have We Let State AGs Become De Facto Internet Regulators?

from the grandstanding-is-no-way-to-make-laws dept

Wed, Feb 2nd 2011 1:15am — Mike Masnick

For quite some time we've called attention to the fact that various state Attorneys General have taken it upon themselves to pressure internet companies to change their policies, often with little or no actual legal authority to do so. It usually takes the form of very public shaming and grandstanding suggesting something illegal has been done, even if that's not the case. Last year, we highlighted a must read piece by Topix CEO Chris Tolles, who had just been on the receiving end of such grandstanding by a bunch of state AGs. The story is disturbing, but enlightening. In the end, he realized it was impossible to fight this, and like most others, he caved. It was the only reasonable response. As Tolles pointed out, at no point in this process was Topix ever explicitly accused of breaking any laws:

Pissed off people, not illegality, is the issue to watch -- At no time during this process were we accused of breaking any laws. The Attorneys General have interpreted their mandate of consumer protections very broadly, and if a lot of people *think* you are doing something wrong, you are likely to be headed for a problem.

This is worrying for any number of reasons. Adam Thierer is pointing out how it appears that state AGs have effectively become the internet's new regulators, with little actual legal authority. He focuses on how many of these actions seem to also involve National Center for Missing and Exploited Children (NCMEC) -- a group that actually does plenty of really good work. I'd argue that it goes way beyond NCMEC, as we've seen this happen beyond just that group's complaints. Thierer's reasonably concerned about the questions this raises, even in cases where law enforcement should be stepping in and helping. The problem is that this isn't the role that AGs are really meant to play. It opens all sorts of questions about the actual enforceability and legality of the "settlement" agreements that come out of these attacks, and whether they represent any real precedent. More importantly, it would seem that many of these agreements could very well violate the Commerce Clause, as states are not supposed to be able to regulate interstate commerce. This is a worrying trend that I'm sure we'll be hearing plenty more about in the near future.

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Filed Under: attorneys general, internet, regulations

18 Comments

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Anonymous Coward, 2 Feb 2011 @ 2:46am

people have whatever authority over you that you allow them to have. this is not new.

also

"we have to save the children" has -always- been IMO the opening nudge down an oil covered slip and slide on a mountain.
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bob, 2 Feb 2011 @ 4:57am

Commerce Clause
The Federal Government has rapped the commerce clause of the Tenth Amendment for over almost a century, why would any one expect the feds to rein in the the States Attorneys General?

Google: Wheat Farmer Commerce Clause
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Mike C. (profile), 2 Feb 2011 @ 5:28am

Easy answer....
I think the press should take part of the blame here. The AG's hold their press conferences and the media lap up their diatribes without question and pass them along to their readers/watchers. At no point do they bother to do any investigation or questioning of what's being said.

For example, take the attack on Craigslist adult personals. The claim was that it had to be shut down to stop human trafficking and prostitution. At no point did anyone publicly ask "specifically how will shutting down Craigslist adult personals accomplish this instead of just driving the perpetrators to other unknown channels?"

As Chris Tolles pointed out, it's the public reaction the AG's are using as their stick, not the law and not common sense. If only we could find a way to get the press back to a point where they ask relevant and occasionally difficult to answer questions. Of course, since news is now entertainment instead of true information reporting, we know that will never happen.
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Anonymous Coward, 2 Feb 2011 @ 6:39am

Re: Easy answer....
The answer on CL is pretty simple: The idea isn't to stop human trafficking, but rather to make it less public and less accessible. What has happened with CL (and Backpages) is that something that was fairly well hidden and discretely the market of small weekly rags and street handouts instead because a very public commerce. The authorities (and the public) have a pretty good tolerance for most things, understanding that you cannot stamp it all out. But when it becomes too public, they are forced to take action.

The law is on the AG's side on this one, prostitution and soliciting for prostitution is illegal in almost every part of America. Living off the avails of prostitution (being a pimp, a paid driver, or paid security for the sex workers) is also illegal. CL was clearly aware of what those ads were selling (and had put in place certain rules and review criteria to weed out ads that were too blatant and to censor images). A case could be made that CL as a company was purposely ignoring things and living off the avails of prostitution.

At the end of the day, the underlying acts were illegal. Taking the advertising out of the most public of places and making them hide in dark corners makes it harder for the general public to get involved. CL gave escorts a sheen of respectablity, of mainstream acceptance that is just not a good thing.

You cannot look at black and white, it isn't a question of absolutely stopping hookers, but rather about changing the profile and shifting people away from these services.
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Anonymous Coward, 2 Feb 2011 @ 6:52am

Maybe regulation is left to the AG's because the Federal Govt doesn't provide proper regulation?

Why was Spitzer going after Wall Street? That should have been the SEC's job, but they obviously don't do it.

Is it abused? Of course, is it the worst thing? no.
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Aerilus, 2 Feb 2011 @ 7:05am

I am not on board for this one, in most cases as a consume the only power you have when dealing with a company is threatening to go to the attorney general when you are getting screwed. the AG needs to be forceful because as the article states generally the legal aspects are fuzzy and there weapon is weather or not the company wants what they are doing made public I have absolutely no problem with this. when dealing with large companies who are trying to give me the run around the only time I even give the person on the other end of the line pause is when i mention going to the AG if it takes the AG acting like an ass to companies to achieve this respect then I say let them do it. as the article states the company was never accused of illegal activity they were just treating consumers badly consumers that couldn't afford a 5 year legal battle.
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Gordon, 2 Feb 2011 @ 7:22am

Re: Re: Easy answer....
How about the fact that the AG's and more importantly local and state law enforcement could have used CL and it's adult section too arrest and prosecute prostitutes. I read all these things about the Adult CL section and the comments put up by so many AC's like yourself and it's always the same answer...."It's illegal...blah. We have to protect...blah."

Instead of shutting it down try USING it as a tool to do the job. There were local law enforcement folks doing just that and making pretty good headway for a while.

Just Saying.
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Mike C. (profile), 2 Feb 2011 @ 7:52am

Re: Re: Easy answer....
While the underlying acts were illegal, it wasn't CL doing the advertising - it was the users. Yes, CL put in filters, but only after the AG's started raising the issue.

First they wanted filters. Then they wanted age verification. Finally, the AG's came in and said "remove it or get sued". Each time, it was prefaced with a public news conference and public lambasting of CL. Never once did the press stop to ask "how will blocking this one channel solve the underlying problem" or, as Gordon above pointed out, "why can't you use this tool to locate and capture the predators instead of getting them to hide deeper".

And if you think hiding it makes it that much harder for the public to get involved, you are sadly mistaken. Yes, they may have to spend an extra 5 minutes searching, but for the people participating, that 5 minutes is trivial. Even if it's an extra hour or two, will that really stop them?

You say it's not about stopping them all, but what about the biggest offenders? Use the tools available to build a case and get them locked up. Instead of actually protecting their electorate, all they did was drive the trade out of the public eye making it that much harder for the police to stop them in an effort to win the next election.
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AnonJr (profile), 2 Feb 2011 @ 9:00am

Sadly Ironic
I find it sadly ironic that it is often the plight of exploited children that gets exploited as a means to whatever regulatory ends some AGs, Lawyers, and other politicians are trying to achieve.
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AnonJr (profile), 2 Feb 2011 @ 9:05am

Re:
The problem is that going public and going public in a truthful and wholly honest way are two different things.

If the AGs were always using the latter, I might see your point. The problem is that some AGs are inciting the public with half-truths and innuendo.
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DS, 2 Feb 2011 @ 9:06am

Re:
"Why was Spitzer going after Wall Street?"

Because it got him votes.
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Anonymous Coward, 2 Feb 2011 @ 9:31am

It got him votes, but the SEC was ignoring quite a bit and he did go after them.
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Anonymous Coward, 2 Feb 2011 @ 9:50am

Re: Re: Re: Easy answer....
CL had filters all along. They checked images for nudity, and filtered out wording. This was done incredibly early in the CL process, back when they were very small.

CL built their business on adult ads. When they shut it down, even at this late point, they lost more than 10% of their traffic. When they started, it was a much bigger part of their business.

How about the fact that the AG's and more importantly local and state law enforcement could have used CL and it's adult section too arrest and prosecute prostitutes

Have you ever seen what goes into arresting a single prostitute? You have to engage them in conversation, you have to get them to specifically solicit you (money for a named sexual act), and then you can arrest them. Because the courts don't treat prostitution very seriously, they typically bond out within hours, and usually face a small fine or maybe a few days of jail time. That jail time is often suspended.

It probably just cost $5000 to get a single hooker of the streets for 3 hours. Talk about wasting the taxpayers money.

The more effective methods are to seperate the girls from their clients. Making it harder to find a hooker is a very useful way of dealing with the problem. Putting more police in the places where the girls work (so they won't street solicit) is one way, and making it hard for the girls and their pimps to advertise is another way to get it done.

Using the CL ads to track down individual hookers is expensive, time consuming, and unlikely to change things. It is about the same as using a spoon to empty the ocean.

In the end, it is the same logic as shutting down domains to limit piracy. What they are doing is making it harder for the average, casual user to find what they are looking for. It is about changing the habits of a group of people, rather than trying to arrest and change individual bad actors.

One way is effecient, the other way just cycles people through the system.
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RobShaver (profile), 2 Feb 2011 @ 11:20am

Vigilante
Isn't this behavior close to what we'd call a vigilante?

Def. Vigilante

A vigilante is someone who illegally punishes an alleged lawbreaker, or participates in a group which metes out extralegal punishment to an alleged lawbreaker.
-- OED, second edition, revised, 2005
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BV (profile), 2 Feb 2011 @ 12:36pm

Bologna
With all due respect, this article is more or less bologna. People have taken advantage of the first amendment and there are certain things such as libel, defamation, sexual predators, threats, etc that are illegal activities and not protected speech. The first amendment wasn't created with the internet in mind or private citizens attacking one another. It is simply a copout for people to justify horrible behavior. With speech comes responsibility. In the case of libel and other things occurring, people have every right to ask for an Attorney Generals help in a manner.

In the example of Topix that you gave, that is a crock. Other than dropping what was essentially a twenty dollar exortion fee, the company became worse. The only time they remove much of anything is when the news media gets involved (which is increasingly happen) That site goes way, way too far and some of the things allowed on there is indefensable. To leave comments on this site users have to sign up, why can't Topix and a few other companies do the same. With some real moderation and registration, Topix would have far less problems and criticism. Even internet companies have a responsible and some things you simply can't defend.

Speaking of Topix, I read an article where they want to do more with politics and political commentary. I also read Facebook is getting more into the comments game which may affect Disqus, Topix, and other companies. If Topix is going to get more political, they would very very smart to come up with stronger filters, registration, and something done about a lot of their forums because when death threats and that sort of thing start appearing on their political forums that is when you not only get more politicians going after Topix and other companies (and justifiably so in many cases) but you will get Attorney Generals even more involved.

You have to find a balance and so many people have abused that.
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teka (profile), 2 Feb 2011 @ 4:40pm

Re: Bologna
"The Internet is scary and people on there might be allowed to say bad things about me there. I demand they stop saying things i don't like, or else. Anyone who disagrees with that is a slandering pirate pedophile communist fascist."

Thanks for letting us all know your side of the story. I appreciate that you have some strong feelings in this matter. I won't ask you to show me on the doll where the bad people touched you, but i will ask.. Why is the proper response to "speech i don't like" to turn to your state attorney general?

Rather then any number of steps, starting with "ignore them" and traveling on through "starting legal action against the person making the actual speech" you skip straight to "create grandstanding platform for someone who will freely ignore the truth and the law if it makes good soundbites".
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BV (profile), 3 Feb 2011 @ 10:17am

Re: Re: Bologna
I am not going to get into an argument with anyone on here, but will state that nowhere did I claim a personal attack against me was why I believed Attorney Generals have a role.

What I saying and I will stand by this to the end of time. First of all anyone who goes on the internet behind a user name and launches a personal attack on someone is a coward, plain and simple. Second, the question comes down to responsibility. Some sites simply don't take any. They don't mind making a profit but then they get mad when people criticize their site or take some kind of action for allowing attacks on people. I agree there are some things that should simply be ignored but there are some things that cannot. For instance, let's say you own a business and someone posts you sell drugs out of that establishment. Even though it is not true, by spreading it out through the internet, word can travel and it potentially can destroy your business based on lies. No one has a right to do that. When things get extreme such as death threats, the posting of people's personal information, libel, etc. then it becomes criminal. When things can ruin a person then sometimes legal action such as contacting an Attorney General is absolutely necessary and when there are sites that actually invite and harbor that, they do have a responsibility.
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RJF, 5 Feb 2011 @ 3:51pm

Above the Law
There are many illegal things going on at topix, including computer hacking. I should know, it happened to me. They hacked out my real name and picture and paraded it all across Topix, calling me a pedophile and child rapist in the process, while bashing my business too.

If I had about 20 or 30 thousand laying around I could afford a lawyer to sue for libel. Even then, no guarantee of winning, because the instigators may not have money.

Anybody is vulnerable here. What's to stop somebody from plastering celebraties names and pictures all over Topix called them pedophiles too? Or ditto with some of the AG's.
I'm tired of the idiots who say we whine because we're getting our feelings hurt. Time for those cowards to give us their full names and pictures and see what they say then.
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