The Hazy Recollection of Being Seduced By Some Kind of Cruel Samoan

As usual, mistermix brings up a fantastic point about the ongoing dustup over Craigslist shuttering the Adult Services portion of their site.

First, a little background: Craigslist has been facing a number of cases and subpoenas brought against them in various states accusing them of various forms of “enabling prostitution”. The argument goes that, even though they actively cooperate with all police investigations, the very fact that they allow people to post “Adult Services” ads for things like erotic massages and escorts makes them, by default, enablers of prostitution, sex slave trafficking, and child exploitation. As Jacqui Cheng aptly described over at Ars Technica:

In the past, the site’s “erotic services” section was the target—prostitutes were known to advertise their services there among the strippers, masseuses, and other perfectly legal offerings.

However, critics have zeroed in on the possibility for human trafficking and child exploitation—a concern that was apparently (from the AGs’ point of view) not sufficiently addressed when Craigslist entered into an agreement with the National Center for Missing and Exploited Children (NCMEC) and the attorneys general of 40 states back in 2008. At that time, the site agreed to take additional screening measures to ensure all ads in the erotic services section were legal, including the implementation of a phone verification system and a blacklist for those who posted inappropriate ads.

Eventually, lawmakers pushed hard enough that Craigslist decided to shut down the erotic services section altogether in 2009, replacing it with adult services, a seemingly trivial switch. In the new section, “service providers” are required to go through a manual review process by moderators and pay $10 per post (posts in erotic services were free). This was meant to keep people using their real names and IDs, and Craigslist donated the revenues to charity.

The subject came up once again this year when Connecticut and 38 other states subpoenaed Craigslist over its “brothel business.” The states demanded to see how much money the adult services section was making and what steps Craigslist was taking to fight prostitution. Craigslist’s Buckmaster responded sharply by saying that the attorneys general were “indulging in self-serving publicity at the expense of the truth,” and that Craigslist had “gone beyond” its legal obligations to deal with prostitution.

This came to a head in August as election season started to gear up, when a group of 17 states’ Attorneys General sent a joint “open letter” to Craigslist founder Craig Newmark and CEO Jim Buckmaster that effectively demanded that they shut down the Adult Services section of Craigslist altogether. Then, a few days ago, Craigslist suddenly complied and shut the whole thing down. Now, of course, this doesn’t mean that the adult ads will disappear from Craigslist completely. They’ll just move into other sections of the site and pollute the regular listings, and now no one will have to buy the ads with traceable money and go through any sort of verification. So, in the end, an effective police tool for combating real trafficking (browsing Craigslist for the “worst of the worst” out there and then going after those people with the help of Craigslist and the data collected by their system) will be stymied. Oh, and it’ll be a lot harder to make money as a stripper too, which just might push some of those girls into prostitution.

And, of course, some of the powers-that-be are using this ginned up controversy to, yet again, go after section 230 of the 1996 Telecommunications Act. For those of you who don’t know (and why would you) Section 230 represented a “deal” of sorts in an effort to curb the spread of completely unregulated filth in early “social” sites like usenet, web forums, and places like Facebook Geocities. The idea was this: Before this law was passed, sites consisting primarily of user-generated content were in a tight spot. If your users posted terrible and illegal things like child porn or classified documents, you were often actually prevented by law from pulling that content down. The problem was that the law recognized you as liable for that content if you exercised any editorial control over those contents whatsoever. The orignal idea was to protect newspapers and magazines from liability possibly illegal things offered by the public in venues like classified ads, but to prevent the sex industry (and other nefarious industries) from covering themselves by making sham publications filled with child-sex ads and pornography by calling them classified ad “magazines”.

The solution was that if you edited any of the ads for content, you could be considered liable for that content. But if it was a pure “public forum”, then the users were liable and not you. This was all fine and good in the era of print ads and magazines, but in the age of the Internet and the rise of social media, it served to have the opposite effect. If someone posted a horrible thing on your “public forum” site, and you moderated by removing the content, then you could be held liable for anything left behind (which might be things that fell through the cracks in a massive site with thousands or hundreds of thousands of posts). So companies protected themselves by refusing to moderate anything, even clearly offensive and possibly illegal posts.

So, we came up with a deal. If service providers complied with certain rules about providing parental controls and cooperating with police investigations, they would not be held liable for user-generated content on their website, even if they did some “Good Samaritan” blocking of objectionable content they did manage to find on their sites. As Declan McCullagh says aptly in his article on CNet:

Translated, that means Craigslist isn’t generally liable for what its users do.

But the law that immunizes Craigslist from lawsuit also protects Facebook, Blogspot, Flickr, and innumerable other Web sites. It lets news organizations, including CNET publisher CBS Interactive, permit readers to post comments without prior approval by an editor. It’s probably no exaggeration to say that one sentence–inserted as part of negotiations over antiporn legislation–gave birth to Web 2.0 and modern social networks.

Ever since that provision was passed, there has been a constant drumbeat from some more authoritarian corners of the country to push it further and to outright ban all obscene content online, and to regulate the Internet like we regulate our airwaves. These efforts are lead by people who are, by and large, zealots who would be happy to see the publishers of Playboy and Penthouse and the producers of Vivid Entertainment charged and put in jail. It would be comical if it weren’t so scary. How long before telling a dirty joke online, or typing out an erotic short story, or saying “fuck” online is called obscene? How long before they go after Google and Facebook and Amazon? How long before they turn that massive Internet filtering and data mining system they built “for terrorism” on us, and start scouring our Internet activities looking for “unclean minds” and “future potential predators”?

But it is also comical, of course, because it quite obviously would never work. The Internet is a global interconnected network designed on-purpose to be able to route around problems. A puritanical campaign to purge the Internet of porn would, like the Drug War, never end and never succeed. Well, not quite. It would succeed in pushing that content offshore, removing any controls we have over it altogether. And just like the “Great Firewall of China” does much more to block the Internet activities of visitors to China than it does for its own people, any attempt to “block it at our shores” would be doomed to failure. The only people who think this really could work, fundamentally misunderstand what the Internet is and how it works. They are also almost certainly the same people who don’t get how evolution works, but that’s a different story for a different day.

So, Craigslist is protected by law. But they have been enduring a constant stream of harassment and lawsuits by groups like the FAIR Fund (an unabashedly anti-Craigslist group) and as many as 36 different states at one time or another. Craigslist isn’t a huge mega-corporation worth billions like Facebook or Google. They have literally 30-something employees total, and no army of corporate lawyers to defend themselves against these constant attacks. So they caved, and the cracks in the protections afforded by this law grew a lot wider. And the free-market powered self-filtering that we’ve been enjoying because of it for 14 years may just take a step back. Since then, the story has been going back and forth throughout the “tech punditocracy”. Was the pressure exerted on Craigslist to get them to cave fair? Should Craigslist have continued to fight the “good fight” to defend the rest of the little guys on the Internet? Does this mean you can use legal harassment to bully site operators into doing what you want? Much has been written about it, from a somewhat surprising defense of Craigslist over at the National Review Online based on a strange call for special small business “rights” to an explanation of how, even though these “scumbags” are terrible people, that censoring Craigslist actually will eventually “help them” from Danah Boyd at Huffington Post.

So, what did mistermix bring up? Just the fact that, as usual, we are fighting the wrong fight:

In other words, Salam, who writes at the National Review, thinks Craigslist deserves special treatment because of its entrepreneurial spirit and the value created by a small business. Boyd, who contributes to Huffington Post, says Craigslist should be treated differently because they are on the side of the oppressed sex worker enslaved by an uncaring industry. It’s different bait for different fish, but both cases just amount to special pleading.

What’s needed here isn’t an exception for the right sort of people—we need to change the laws that govern prostitutes. The legalization of small-scale independent sex work will free up police resources to go after the sex-power industry, and it will get cops off the back of a hard-working small businessman. I imagine that Salam didn’t make that argument because his audience at the National Review can’t stomach the immorality of prostitution, just as Boyd’s audience can’t abide the exploitation of women which they believe is at the heart of sex work.

So many pixels are wasted in the pundit business arguing that good people shouldn’t have to follow the law of the land, when what ought to be argued is that the law of the land needs to change so good people can get on with their lives free of state interference.

If prostitution were legal and regulated, rather than pushed into the same netherworld that brings us child sex slave trafficking and forced prostitution, then tons of police resources would be freed up to fight against those serious problems. Instead of trying to fight a hopeless and religious war against the oldest profession “For The Children”, maybe we should, you know… Rationally try to save the children and leave everyone else alone.

But, you know, that’ll never happen because it makes sense. And our country still hasn’t figured out a way to stand up for our freedoms against the easy puritanical soundbite proclaiming that they are doing God’s Work. And because, you know, fuck it… It’s an election year.