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

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

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.

Filed Under: attorneys general, internet, regulations

Craigslist Shuts Down Adult Services; Says It's Being Censored

from the without-a-lawsuit-too dept

Last month, we noted that the dangerously misguided media campaign against Craigslist's adult services section had ramped up, and it didn't take long for various state attorneys general to grandstand against the site with a press conference and "letter" sent to the site, demanding that the adult service section be shut down. This, despite the fact that previous grandstanding attempts had resulted in not one, but two separate settlements with various state AGs, and Craigslist had lived up to the terms of both settlements.

While some had threatened, no actual lawsuit had been filed against Craigslist for this section -- and for a damn good reason: Craigslist is, without a doubt, protected from liability due to Section 230. Furthermore, Craigslist seems to go out of its way to help law enforcement use the site as a tool to crack down on prostitution. Shutting that down won't stop the prostitution. It'll just drive it to sites that don't work as closely with law enforcement.

And that may now be happening. Late Friday, people started noticing that Craigslist had blocked the Adult Services section and replaced it with just a line that said boldly "censored." Craigslist is, indeed, making quite a statement here. They were pressured to shut down a section on no actual legal basis, in a manner that won't help anyone stop prostitution or exploitation of young women. All it does is give a few politically-minded state attorneys general a headline and a campaign bullet point, falsely claiming that they helped "fight prostitution."

In the meantime, people are pointing out that the ads from the adult services section are already migrating elsewhere on the site and there are lots of other sites ready to pick up the slack -- many of which have been much more explicit than anything on Craigslist ever was. Perhaps most ridiculous of all is that the Attorney General who has lead the grandstanding crusade against Craigslist, Richard Blumenthal from Connecticut still isn't happy, claiming that he's worried this is just a publicity stunt (which is kind of funny, seeing as pretty much everything Blumenthal has had to say about this case has been a publicity stunt.

Filed Under: attorneys general, erotic services
Companies: craigslist

Why Are AGs Targeting Craigslist Rather Than Newspapers Or Other Websites?

from the makes-no-sense... dept

With Craigslist caving on how it manages its "adult" ads, we've noted that some politicians are still angry, despite having been a part of the group that bought into the agreement Craigslist made with them six months ago. However, since this really has everything to do with two AGs who are running for governor of their states, rather than any real attempt to stop any illegal activity, they have to keep grandstanding. Henry McMaster, AG of South Carolina (and candidate for governor) has been among the worst, threatening to file criminal charges against Craigslist management to put them in jail. Of course, even the most basic legal analysis shows that McMaster has absolutely no case -- and, in fact, the "deadline" that McMaster put in place last Friday came and went without McMaster actually doing anything.

However, he's still talking a big game -- and it looks like Craigslist has had enough of letting him get away with blaming them for everything. The company's CEO, Jim Buckmaster, has taken to the Craigslist blog to ask why they're being targeted when various newspapers in South Carolina have many more such "questionable" ads that are often a lot more explicit and graphic than those on Craigslist. The post lists out a variety of South Carolina newspapers and how many adult ads they have, noting that McMaster doesn't seem to be going after any of them and threatening to throw their execs in jail. Following that, he put up a separate post asking for a retraction and an apology from McMaster for his misguided accusations.

Meanwhile, the folks over at Digg are making a really good point. If grandstanding politicians are going to blame Craigslist for those murders in Boston where the killer used Craigslist to find victims, how come now one is yelling "blame AOL!" after a woman was killed by a guy she met via AOL instant messenger. In this day and age, it's quite depressing that people in positions of authority still seem to think the tool is to blame, rather than the individuals who use them.

Filed Under: adult services, attorneys general, erotice services, henry mcmaster, section 230
Companies: craigslist

Craigslist Gives In To Misplaced AG Anger... Again

from the what-are-you-going-to-do... dept

Back in November, a bunch of Attorneys General forced Craiglsist to change how it managed its "erotic services" category. The whole campaign by these AGs to blame Craigslist for the fact that prostitutes used the service was aimed at the wrong target -- smart law enforcement officials recognized that they could use Craigslist as a tool to fight prostitution. And, of course, the original changes to Craigslist did little if anything to stop prostitution. Instead, they just made that prostitution move elsewhere, making it more difficult for law enforcement to track it down and deal with it. It's difficult to see how that's smart policy.

Yet, even with the changes -- which required those posting to the erotic services category to use a credit card (and pay $5) to prove their identity -- some prostitution ads were getting through. Once again, though, this should have been seen as great news for law enforcement. That's because now it was even easier to track down those involved in prostitution. So what happened? You guessed it. The AGs continued to freak out and insist that Craigslist was somehow to blame, even threatening to put Craigslist execs into jail. Yes, seriously.

Given all of this, it's disappointing, though hardly surprising, that Craigslist has caved in and agreed that it will now have people on staff preview every ad in the erotic services category to make sure it's "okay." Also, according to at least one report, the new "adult services" (rather than "erotic services") group will cost advertisers $10 instead of $5 -- and unlike the in original agreement, this time the money apparently may not go to charity. There really is absolutely no legal basis for this move. The AGs would have had no case (hello Section 230!), but given the public pressure from the AGs and the fact that Craigslist probably was getting sick of answering this question, it gave in.

Of course, it's difficult to see how this ends well. Prostitution will continue. It will just move to other websites, where it will be that much more difficult for law enforcement to track it and respond to it. This move will also -- unfortunately -- empower AGs to once again abuse their public platform to pressure companies into doing things with absolutely no legal basis whatsoever. We saw it last year with Andrew Cuomo forcing ISPs to drop Usenet, and now that more AGs are learning how this process works, expect to see more de facto gov't censorship, as various AGs use the press and bogus threats to pressure websites into shutting down or changing sites.

And, of course, given that it only took six months for the AGs to demand even more from Craigslist, how much do people want to bet that it won't be all that long until those same AGs start complaining about Craigslist yet again? Especially now that Craigslist has agreed to have employees review every ad in that section, they'll probably start blaming Craigslist if any questionable ads get through. Even though Section 230 (again) has said that moderating content doesn't increase liability, since those AGs have been ignoring Section 230 all along anyway, you can bet they'll ignore it again, and suggest Craigslist is even more liable, even though they were the ones who forced Craigslist to make this change in the first place.

Filed Under: adult services, attorneys general, erotice services, section 230
Companies: craigslist

Attorneys General Ramp Up Misguided Attacks On Craigslist

from the it-ain't-the-tool dept

This should come as no surprise at all, but following the mad rush to blame Craigslist for the fact that a psychopath used the site to find women to murder, various Attorneys General are falsely trying to pin some blame on Craigslist and get it to take actions that won't help at all. Both Illinois' Attorney General and Connecticut's Attorney General (who has a history of wrongly blaming Craigslist) are calling for the site to shutter the "erotic services" section.

If you don't think too much, you can see why people might think this makes sense. After all, some of the services being offered on those sites are illegal. But does that mean that those actions stop once Craigslist stops accepting those ads? Of course not. As we saw last year when Craigslist was pressured into restricting that section, those who are in the market for erotic services simply move elsewhere, and in scattering them around, it actually makes it that much more difficult for law enforcement to monitor the activity and stop it from happening. We've pointed to a few examples of police actively using Craigslist as a tool to track down lawbreakers. It's hard to understand why these Attorneys General are trying to take that tool away from the police. Craigslist cooperates with law enforcement, and gives law enforcement an easy way to track and deal with illegal activity. Shutting down parts of Craigslist doesn't help. It doesn't stop the illegal activity -- it just makes it that much harder to track and stop.

Filed Under: attorneys general, blame, richard blumenthal
Companies: craigslist

State Attorneys General Trash Internet Safety Study, But Still Can't Provide Data To Counter It

from the maybe-it's-not-such-a-big-threat-after-all dept

Last month, a wide-ranging panel of experts did a big study and found out that the risks of online predators stalking kids on social networks was totally overhyped -- something that we'd seen in previous studies, though none as wide-ranging and comprehensive. These results shocked and upset the group of 49 state attorneys general who have been pushing hard to force social networks to implement a variety of mechanisms to "protect" against this threat that really isn't that big. It's not surprising that these AGs want to push this. It makes it look like they're doing something to "protect the children," at little cost to themselves. The public imagination, helped along by politicians and the press, have been falsely led to believe that these sites are crawling with child predators tricking children, but the truth is that such cases are extremely rare. That's not to play down the seriousness of the few cases where it happens, but it's hardly a major epidemic.

Still, the state AGs were none too pleased with the report's results, and some of the more vocal social network haters have been trashing it for using out-dated data. Of course, these AGs haven't actually provided the up-to-date data that contradicts the report's findings. So, one well-respected online safety researcher, Nancy Willard, went out and found some recent data to look at. Adam Thierer summarizes her findings -- but the quick version is that the recent data does, in fact, support the study's original conclusion: there just isn't that much predatorial behavior happening on social networks. In fact, the report found that general chat rooms were much more risky than social networks. The key point:

The incidents of online sexual predation are rare. Far more children and teens are being sexually abused by family members and acquaintances. It is imperative that we remain focused on the issue of child sexual abuse -- regardless of how the abusive relationship is initiated.

Focusing on social networks as being a problem is taking away resources from where the real threats are... all in an effort for some AGs to get some easy headlines.

Filed Under: attorneys general, internet safety, stats