Can a Website Be Prosecuted for Users' Crimes? Craigslist Targeted by South Carolina AG

In the wake of the disastrous press generated for Craigslist by alleged "Craigslist Killer" Philip Markoff, it probably should come as little surprise that Craigslist is now reported to be engaging in talks with the Attorney Generals of a number of states aimed at getting rid of ads on the site for prostitution and "other suspected illegal sexual activities".

However, for South Carolina Attorney General Henry McMaster, this might be too little, too late. According to the AP, McMaster sent a letter to Craigslist CEO Jim Buckmaster saying that, despite much of the "valuable service" provided the public by the site, "it appears that the management of Craigslist has knowingly allowed the site to be used for illegal and unlawful activity after warnings from law enforcement officials and after an agreement with 40 state attorneys general." The letter goes on to give Craigslist until May 15 to take down "sex-related postings from its South Carolina sites" or face prosecution.

Now that sounds pretty daunting, particularly coming from a state Attorney General, but does Craigslist really have anything to worry about here? The legal reality for web sites such as Craigslist is that federal law generally immunizes them for the postings of third-parties using the site (e.g., user-generated ads or posts). Specifically, Section 230 of the Communications Decency Act provides that: "No provider or user of an interactive computer service shall be treated as a publisher or speaker of any information provided by another information content provider." Craigslist, for its part, has faced pressure from states' attorney generals in the past, and actually agreed to implement certain safeguards such as user-flagging of improper postings.

So why would Craigslist even come to the table to discuss the matter with the state AG's, you might wonder? Well, the negative press plus the costs of a potential litigation blitz alone might make it a good business decision for Craigslist to sit down and at least discuss ways with which it can address some of the concerns being raised. CEO Jim Buckmaster seemed to say as much via a statement, saying he "anticipates making further progress toward the common goal of eliminating illegal activity from craigslist, while preserving its full utility and benefit for tens of millions of law-abiding Americans who value and depend on craigslist's free local community services in their everyday lives."

The degree of immunity and freedom with which websites operate online has been under increasing scrutiny in recent months in other ways too. One example would be that review sites such as Yelp have been sued by individuals who want to get at users who allegedly post defamatory reviews. Although there has always existed a degree of tension between online freedoms on the one hand, and abusive (or even illegal) behavior online on the other, at some point lawmakers may be forced to take another look at how the equation is currently balanced.