Digital Media

Federal judge orders South Carolina to halt criminal investigation of Craigslist.

A judge has ordered Henry McMaster, attorney general of South Carolina, not to file any criminal charges against Craigslist until the related matter is settled in court.

A judge for the U.S. district court in South Carolina on Friday issued a temporary restraining order in the case. Craigslist sought the order after McMaster threatened the service as well as its managers with criminal prosecution.

McMaster has demanded that Craigslist do more to halt prostitution ads from appearing on its site. He said he would instruct his staff to launch a criminal investigation unless the ads were removed. He continued issuing threats even after Craigslist agreed to shut down its "erotic" section and replace it with a new "adult" area.

Craigslist has filed suit against McMaster, whose motivations were questioned in a story by The Associated Press. On Thursday, the AP reported that McMaster has never prosecuted a prostitution case in six years. Critics have said that if McMaster were serious about combating prostitution, he could start trying cases or at least go after newspapers and other classified publications that also offer the same kind of questionable content as Craigslist.

Craiglist representatives declined to comment and McMaster's office did not reply to an interview request.

One thing is for sure, if a story reported yesterday is accurate, Henry McMaster, the attorney general for South Carolina is no expert at fighting prostitution.

Earlier this month, McMaster threatened Craigslist with criminal prosecution if the online classifieds site, did not do more to remove prostitution ads on its site. But according to a report by The Associated Press, McMaster said Thursday he has "never handled a single such case in more than six years as the state's top prosecutor."

"I don't think this office has handled any prostitution prosecutions ever," McMaster was quoted by the AP. "This is something different. This is against the biggest want ads Web site in the world."

McMaster and a number of other state attorneys general demanded in the past several weeks for Craigslist to close down the publication's "erotic" section. They claim the area was rife with solicitations for sex that often involved minors and people who forced into prostitution against their will.

Craigslist agreed to replace the erotic section with a new adult section and also began reviewing every ad to ensure it met with the site's terms of service before it appeared online. While Craigslist was trying to implement these new measures, McMaster once again issued a threat of prosecution against Craigslist and its managers.

The AP spoke to Ann Bartow, a professor of Internet law at the University of South Carolina's School of Law. She said: "McMaster's decision to take on Craigslist and not local newspapers that advertise escort services suggests political motivations."

Craigslist has always said that the site was far more tame compared with many newspaper and competing online classified publications. McMaster, however argued that the volume of the prostitution ads made Craigslist a bigger threat.

"It is the vehicle of choice for prostitution in this country," McMaster told the AP. "They had been notified emphatically that those were prostitution ads."

Henry McMaster, the South Carolina attorney general who threatened Craigslist with criminal prosecution last week, must assume Web users and the people of his state don't take the time to read.

Henry McMaster, South Carolina's attorney general is no longer threatening Craigslist with prosecution.

(Credit: SCattorneygeneral.org)

Just a few hours after Craigslist announced that it had filed a lawsuit against McMaster for making threats and alleging managers of the site were in some way responsible for prostitution ads that have appeared on the site, McMaster claimed victory.

He suggested that it was he and his threats that prompted Craigslist to implement changes to the site, such as setting up a system to review ads before they appear in the new "adult" section and the deleting of the "erotic" section.

"Overnight (Craigslist) removed the erotic services section from their Web site as we asked them to do," McMaster wrote on his site Wednesday. "And they are now taking responsibility for the content of their future advertisements. If they keep their word, this is a victory for law enforcement and for the people of South Carolina."

As anyone who has followed this story knows, Craigslist CEO Jim Buckmaster announced a week ago that he planned to implement a monitoring system for adult ads and do away with the erotic section. This was well before Friday when McMaster posted a note on his site saying he was going ahead with criminal prosecution.

Craigslist had come under scrutiny after law enforcement agencies complained that the site's erotic category was a digital meat market where prostitutes and pimps could safely conduct business. On Wednesday, the state of New York announced it had made seven arrests in connection with an alleged prostitution ring that operated on Craigslist's erotic section.

Craigslist has worked with state attorneys general from across the country to try to find a way to curb sex solicitation on the site. In November, 40 state attorneys general, including McMaster, were part of an agreement with Craigslist that saw the service adopt a series of changes, such as requiring anyone posting to the erotic section to provide phone and credit card numbers. Craigslist met again with a small number of attorneys general earlier this month after a woman was murdered by a man who allegedly found her ad on Craigslist's erotic section.

The important thing here is that McMaster refrained from making more threats and his comments apparently signal he will not be filing criminal charges.

"We trust (Craigslist executives) will now adhere to the higher standards they have promised," McMaster wrote. "This office and the law enforcement agencies of South Carolina will continue to monitor the site to make certain that our laws are respected."

McMaster never had legal grounds in which to prosecute Craigslist managers, according to Matt Zimmerman of the the Electronic Frontier Foundation. He told CNET News the Communication Decency Act protects Web sites like Craigslist from being held criminally liable for the actions of users.

After reading McMaster's comments, some may conclude that one of two events transpired: McMaster didn't get the memo that Craigslist was well on its way to changing the site to satisfy the demands made by a group of attorneys general earlier this month.

Or, the AG simply used the controversy surrounding the online sex trade, a problem that apparently has no easy answers, to drum up a few easy press clippings.

This post has been updated. See below for details.

Craigslist said Wednesday it is suing South Carolina's attorney general over the threat of criminal charges against the Web site and its executives.

In the lawsuit filed in federal court, Craigslist says it is "seeking declaratory relief and a restraining order" connected to accusations by Henry McMaster, the state's attorney general, that the classified ad site has not adequately removed "advertisements for prostitution and graphic pornographic material."

In a blog post Wednesday morning, Craigslist CEO Jim Buckmaster said that the charges are egregious:

In addition to being unwarranted by the facts, legal experts agree that the charges threatened represent an unconstitutional prior restraint on free speech, and are clearly barred by federal law (sec 230 CDA).

McMaster responded later Wednesday morning with a statement, given here in full:

The defensive legal action craigslist has taken against the solicitors and my office is good news. It shows that craigslist is taking the matter seriously for the first time.

More importantly, overnight they have removed the erotic services section from their website, as we asked them to do. And they are now taking responsibility for the content of their future advertisements. If they keep their word, this is a victory for law enforcement and for the people of South Carolina.

Unfortunately, we had to inform them of possible state criminal violations concerning their past practices to produce a serious response. We trust they will now adhere to the higher standards they have promised. This office and the law enforcement agencies of South Carolina will continue to monitor the site to make certain that our laws are respected.

In recent weeks, Craigslist has worked to remove its erotic ads section in response to demands from a number of state attorneys general and to replace it with a new, more closely monitored adult section. A check of the site earlier this week by CNET News, however, showed that Craigslist had not been able to completely prevent people from posting solicitations for sex. In addition, similar content can be found on other classified-ad sites serving South Carolina locales.

Buckmaster said in his blog post Wednesday that the only way to fully comply with the attorney general's "ultimatum" to remove the portions of Craigslist containing erotically charged material "is to take down the craigslist sites for South Carolina in their entirety." On Monday, Buckmaster had demanded an apology from McMaster.

The attorney general, Buckmaster said, "has persisted with his threats despite the fact that craigslist:"

• is operating in full compliance with all applicable laws
• has earned a reputation for being unusually responsive to requests from law enforcement
• has eliminated its "erotic services" category for all US cities
• has adopted screening measures far stricter than those Mr McMaster himself personally endorsed with his signature just 6 months ago
• has far fewer and far tamer adult service ads than many mainstream print and online venues operating in South Carolina
• has made its representatives available to hear Mr McMaster's concerns in person
• has politely asked Mr McMaster to retract and apologize for his unreasonable threats

Update at 8:01 a.m. PDT: Background information and more details from the Craigslist blog were added.

Update at 8:58 a.m. PDT: Response from the South Carolina attorney general's office was added.

Note at 7:50 a.m. PDT: Craigslist said it has filed suit against South Carolina's attorney general over his threats to prosecute the site. Read about it here.

Craigslist's managers have complied with the wishes of most of the state attorneys general who demanded they rid the site of prostitution ads.

The Web's dominant classifieds publication replaced its controversial "erotic" section with a new "adult" category. And where Craigslist once relied on readers to flag dodgy advertisements, the company's employees now review every ad submitted to the adult area before they appear online.

Yet, the site has been unable to block every solicitation for sex. Catherine, a self-described sex worker from San Francisco, confirmed for CNET that she successfully posted an ad for her services to the adult section late last week. She wished to remain anonymous, so neither the ad's photo nor text can be included in this story. Regardless, it isn't hard to find questionable ads in Craigslist's new adult section.

The most noticeable difference between Craigslist's erotic and adult categories is the photos. In the adult section, the photos are less provocative, less skin is showing. When it comes to the text, however, the two sections are very similar.

Both are packed with ads for massage services. Ads in both areas include descriptions of the masseuse's breast size ("I'm a natural C cup") and they are often photographed dressed in their underwear. Even if most of these services are legitimate, and only a few are veiled offers of sex in the new adult area, plenty of others make little if any pretense about what they offer.

These ads typically include words such as "busty," or "fantasy girl" in their descriptions. Often, they feature photos of a woman or man dressed provocatively in their underwear or bathing suit. Some include hourly rates.

Clearly, Craigslist faces a significant challenge as it tries to purge prostitution from its Web pages. While it can ban nude photos and overt offers of sex, how can anyone expect the site to outlaw ads featuring photos of bikini-clad women offering phone numbers? One can find racier images in department store ads.

The Internet has made it easier for merchants of all kinds to conduct commerce and reach wider audiences. Should anyone be surprised that the sex trade has benefited from this as well. If Craigslist were to disappear tomorrow, does anyone really expect that would curb prostitution?

Comparing Craigslist and Backpage.com
A review of some competing online classifieds shows that while Craigslist has been a popular destination for sex workers, it is by no means the only one.

For example, is an online classified publication and Craigslist competitor. The content it produces can also be found on the Web sites of some entertainment and alternative publications in major metropolitan areas, such as New York's Village Voice or San Francisco's SFWeekly.

Craigslist is G-rated compared with the photos found in Backpage's adult section. Ads included nude photos while others showed people engaged in sexual intercourse. A common ad would show a bare-chested woman asking men to call her at a phone number.

In the area of Backpage that services Charleston, S.C., one ad found on Tuesday by CNET featured a photo of a bare-chested woman apparently engaged in masturbation. It must be noted that there was nothing as graphic on Craigslist. This is relevant because Henry McMaster, South Carolina's attorney general, last week threatened Craigslist with a criminal investigation.

McMaster hasn't made any similar threats--at least none that has been publicized--against Backpage. Managers at Backpage did not respond to an interview request.

In November, Craigslist and 40 state attorneys general, including McMaster, signed an agreement that called for the site to add more safeguards. The classifieds publication followed through and one of the new changes was a new requirement that anyone posting to the erotic section must provide a credit card. All the parties hoped that criminals would be unwilling to provide identification and this would be deterrent.

"Many of the classified and communication services on the Craigslist site provide the public with a valuable service," McMaster wrote to Craigslist CEO Jim Buckmaster on May 5. "However, it appears that the management...has knowingly allowed the site to be used for illegal and unlawful activity after warnings from law enforcement officials and after an agreement with forty state attorneys general."

Since then, Craigslist did away with the erotic section and agreed to review every ad before it appeared, but McMaster was dissatisfied. He posted a note on his site that said the "Craigslist South Carolina site continues to display advertisements for prostitution and graphic pornographic material. This content was not removed as we requested. We have no alternative but to move forward with criminal investigation and potential prosecution."

This is at best an empty threat, says Matt Zimmerman, a senior staff attorney for the Electronic Frontier Foundation.

The Communication Decency Act protects Web sites like Craigslist from being held criminally liable for the actions of its users, Zimmerman said, who added that Craigslist has no legal obligation to even review ads before they go online.

Had Zimmerman had his way, Craigslist would have never agreed to do the monitoring. Craig Newmark, Craigslist's founder, had earlier gone on national TV and said that Craigslist would not do away with the erotic section. The company's reversal may have led McMaster to believe he could shame Craigslist managers into doing more than what the law required. "It made life more difficult for Craigslist I think," Zimmerman said.

"But I was much more disappointed with (McMaster) than Craigslist," Zimmerman said. "His threats were bogus to begin with and he was wrong to threaten (Craigslist's managers) with jail when the law is very clearly on their side."

Jim Buckmaster

Craigslist CEO Jim Buckmaster lashed out in a blog post at South Carolina Attorney General Henry McMaster for threatening to prosecute him and Craigslist founder Craig Newmark.

Buckmaster was responding to McMaster's accusations that Buckmaster, Newmark and Craigslist were engaging in illegal acts. This is the latest chapter in the effort by law enforcement officials from several states and cities to force Craigslist to do more to prevent ads for prostitution from appearing on the site. In an apparent move to placate attorneys general, Craigslist last week announced that it would replace the controversial "erotic section" with a new "adult section" and would not post any ad until it was reviewed by a human.

In his post at Craigslist.org, Buckmaster told McMaster that he was out of line in his claims that the changes at Craigslist didn't go far enough. Buckmaster is apparently indicating he believes the site has done enough to address the problem of prostitution.

"These very serious allegations followed the dramatic changes we implemented last week, widely applauded by other attorneys general," Buckmaster wrote. He also noted that the changes go far beyond alterations to the site that McMaster endorsed six months ago. The question is why is McMaster so outraged now?

Buckmaster noted that AT&T, Microsoft, and Village Voice Media, as well as major newspapers are posting very graphic ads in their "adult sections" and McMaster has not included them in his attacks. "What's a crime for Craigslist is clearly a crime for any company," Buckmaster wrote. "Are you really prepared to condemn the executives" ...from these "mainstream companies...Mr. McMaster, I strongly recommend you reconsider and retract your remarks."

Buckmaster said launching a criminal prosecution against Craigslist isn't warranted by the facts, and is barred by federal law.

"We're willing to accept our share of criticism," Buckmaster wrote, "but wrongfully accusing Craigslist of criminal misconduct is simply beyond the pale. We would very much appreciate an apology at your very earliest convenience."

So far, the South Carolina attorney general's office has declined to comment beyond a terse statement posted to its Web site on Friday, in which it said, "We have no alternative but to move forward with criminal investigation and potential prosecution."

Below is a copy of Buckmaster's blog post:

An Apology Is In Order

Dear South Carolina Attorney General Henry McMaster,

Two days ago you accused Craigslist, and me personally, of engaging in criminal acts, reiterating your previous threat to file unwarranted and unconstitutional charges against us that are clearly barred by federal law. As you put it, "We have no alternative but to move forward with criminal investigation and potential prosecution."

These very serious allegations followed the dramatic changes we implemented last week, widely applauded by other attorneys general, that go far beyond the policies and procedures you yourself personally endorsed just 6 months ago, as indicated by your signature on the joint statement.

So effective in fact, that our "adult services" and soon-to-be-retired "erotic services" sections combined, for all cities in South Carolina, currently feature a total of 40 ads, all of which comply with our terms of use. That's 40 ads out of a total of 334,180 currently listed on our SC sites. The rest comprise a thriving marketplace for South Carolinians, offering jobs, housing, for sale items, local services, and just about everything else.

Many prominent companies, including AT&T, Microsoft, and Village Voice Media, not to mention major newspapers and other upstanding South Carolina businesses feature more "adult services" ads than does Craigslist, some of a very graphic nature. For a small sampling, look (careful NSFW) here, and here, and here, and here, and here, and here, and here, and here, and here, and here, and here.

Have you fully considered the implications of your accusations against Craigslist? What's a crime for Craigslist is clearly a crime for any company. Are you really prepared to condemn the executives of each of the mainstream companies linked above, and all the others that feature such ads, as criminals? Craigslist may not matter in your world view, despite our popularity among your constituents, but mightn't you want an endorsement from any of the SC newspapers for your gubernatorial campaign, whose publishers you've just labeled as criminals? Do you really intend to launch a criminal investigation against the phone company? What about potential new jobs connected to big data center buildouts in SC by Internet companies? Are you sure you want prosecute all of their CEOs as criminals???

If you are threatening our founder Craig Newmark, a board member with no operational role at Craigslist other than as a customer service representative, then you are expanding your list of "criminal suspects" to include thousands of employees at the above-named companies, or the companies' boards of directors, or both.

Mr. McMaster, I strongly recommend you reconsider and retract your remarks, and positively affirm that you have no intention of launching criminal investigations aimed at any of these upstanding companies, because in truth none of them are deserving of such treatment. Certainly when it comes to Craiglist, by any objective standard your threats and accusations are unreasonable and unfair:

• threats of criminal prosecution are utterly unwarranted by the facts
• the charges threatened are unconstitutional and barred by federal law
• our adult ad screening regimen is stricter than the one you endorsed
• our adult services ads are fewer and tamer than other SC venues.

We're willing to accept our share of criticism, but wrongfully accusing Craigslist of criminal misconduct is simply beyond the pale. We would very much appreciate an apology at your very earliest convenience. As I'm sure would all of the other fine companies whose executives you've called out as criminals.

Sincerely yours,

Jim Buckmaster
CEO, Craigslist

This was originally posted at ZDNet's Between the Lines.

If you're a pol who wants to garner some headlines there's one easy route to news coverage: kick Craigslist.

Now it's South Carolina Attorney General Henry McMaster's turn (Techmeme, statement, letter to Craigslist). McMaster has informed Craigslist CEO Jim Buckmaster (see his reply) that he has to remove "the portions of the Internet site dedicated to South Carolina and its municipal regions which contain categories for and functions allowing for the solicitation of prostitution" in 10 days. If not, "criminal investigation and prosecution" are possible.

(Credit: Larry Dignan/ZDNet)

As most of you are aware, Craigslist has been cited in a few unfortunate incidents, most recently a Boston murder of woman. The alleged murderer, Philip Markoff, found his victim via Craigslist. These incidents attract politicians like flames attract moths. Pols can't resist.

Let's recap Craigslist's bad run:

• Boston murder.
• New York murder.
• New York Times story on how Craigslist ads facilitate hookups.

Sex services ads aren't hard to find on Craigslist, but the company has been working with law enforcement to cut them down. Craigslist and some 40 or so attorneys general entered a joint statement six months ago, as Buckmaster has repeatedly noted. Most of Craigslist is comprised of folks just trying to sell run-of-the-mill items, rent apartments and the commerce of daily life.

However, none of the good activity will matter when Craigslist gets bad press every few weeks or so. It's a national splash every time Craigslist and prostitution are mentioned in the same sentence, even though you can find ads for personal services in your phone book and local newspaper.

Enter the pol and the attorney-general-to-governor formula. Attorney general finds headline-making issue, gets tough on the perps, issues a few statements and later runs for higher office. Elliot Spitzer was the master of chasing Wall Streeters around and landed as governor (we know how that one turned out).

McMaster is also pondering a run to be South Carolina governor. Now comes McMaster with his statement. Coincidence?

Attorney General Henry McMaster today called on the CEO of the Internet classified site "craigslist" to remove "the portions of the Internet site dedicated to South Carolina and its municipal regions which contain categories for and functions allowing for the solicitation of prostitution and the dissemination and posting of graphic pornographic material" within ten (10) days.

"If those South Carolina portions of the site are not removed," McMaster said, "the management of craigslist may be subject to criminal investigation and prosecution."

The issues here--whether South Carolina has a legal basis, and free speech--are fairly obvious, but the most obvious item appears to be political calculation.

Can you imagine the attention a perp walk featuring Buckmaster would get? You simply can't buy that airtime.