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Policing the Virtual Red Light District: A
Legislative Solution to the Problems of Internet
Prostitution and Sex Tra"cking
Abby R. Perer
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823
Policing the Virtual Red Light District
A LEGISLATIVE SOLUTION TO THE PROBLEMS OF
INTERNET PROSTITUTION AND SEX TRAFFICKING
INTRODUCTION
“IM [sic] READY TO SATISFY ALL YOUR SINFULL
[sic] NEEDS . . . 150 HHR, 200 1HR, 350 2HRS, 500 3HRS.”
1
A
quick search through the adult services section of an average
classified-ads website reveals hundreds of advertisements like
this. This advertisement from the “Erotic Services” section of
Classifiedads.com—among hundreds of others on the same
website and other classified-ads websites—is the reason why
some refer to the Internet as the “virtual red-light district.”
2
In
fact, Craigslist, the online classified-ads giant, recently came
under the microscope of local and national law enforcement
agencies and prosecutors because it hosted ads like this.
Known as the “Wal-Mart”
3
of online sex trafficking, Craigslist,
as well as those in charge of the site, began to face intense
scrutiny from the public in 2010 because some believed that the
website’s operators knowingly allowed users to offer sex for
money in the site’s “Adult Services” section.
4
Despite this belief, the legal options for deterring
websites from hosting such content were—and continue to be—
limited. Under the Communications Decency Act of 1996
1
Destiny, Sexy Mixed Bombshell Ready for You, CLASSIFIEDADS.COM,
http://adult.classifiedads.com/erotic_services-ad4516424.htm (last updated May 22,
2011) (on file with author).
2
David Wright et al., ‘Craigslist: Site for Sex Slaves’ Story Save’s Girl’s Life,
ABC
NEWS (Sept. 6, 2010), http://abcnews.go.com/WN/popular-website-craigslist-outlet-
sex-trafficking-child-exploitation/story?id=11367581.
3
Steve Turnam & Amber Lyon, Sold on Craigslist: Critics Say Sex Ad
Crackdown Inadequate, CNN (Aug. 3, 2010), http://articles.cnn.com/2010-08-03/justice/
craigslist.sex.ads_1_adult-ads-services-ads-craigslist?_s=PM:CRIME (quoting Andrea
Powell of FAIR).
4
In early August 2010, CNN reporter Amber Lyon approached Craigslist’s
founder, Craig Newmark, outside of a university where he was giving an unrelated talk.
Lyon showed Newmark several ads that she had found on the “Adult Services” section of
Craigslist in which it is clear that women are selling themselves for money. Amber Lyon,
Craigslist and the Sex Trade, CNN (Aug. 25, 2010, 6:31 PM), http://ac360.blogs.cnn.com/
2010/08/25/video-craigslist-and-the-sex-trade-2/?iref=allsearch.
824 BROOKLYN LAW REVIEW [Vol. 77:2
(CDA), websites essentially have immunity from liability—civil
and criminal
5
—for unlawful postings by third parties.
6
This
immunity comes from section 230 of the CDA, entitled
“Protection for private blocking and screening of offensive
material.”
7
Under this section, websites that merely provide an
interactive computer service
8
“shall [not] be treated as the
publisher or speaker” of any information posted by third-party
users, where the third-party users are considered the
“information content providers.”
9
Courts agree that they cannot make websites that act as
mere hosts of information, not creators, answer to plaintiffs
“under state law” for offensive or illegal information posted by
third-party users.
10
Specifically, section 230 protects interactive
computer services, including websites, from liability as
publishers or speakers of information created by third parties.
11
Therefore, classified-ads websites remain immune from
5
It should be noted that section 230 provides an explicit carve-out for
federal criminal liability. 47 U.S.C. § 230(e)(1) (2006). Prostitution, however, is
generally regulated by the states, and, as far as criminal liability goes, classifieds
websites like Craigslist have, thus far, “escap[ed] criminal prosecution.” John E.D.
Larkin, Criminal and Civil Liability for User Generated Content: Craigslist, a Case
Study, 15
J. TECH. L. & POL’Y 85, 87 (2010). It is true that prosecutors could bring
criminal charges against classifieds websites for violations of federal anti-prostitution
laws, but it is highly unlikely that those prosecutors could meet the burden of showing
that classifieds websites have “the requisite knowledge and mens rea to be prosecuted.”
Id. at 93.
6
47 U.S.C. § 230. Although there is a statutory carve-out for federal crimes, id.
§ 230(e)(1), criminal prosecution would be a stretch here, especially on the elements of intent
or mens rea. See Larkin, supra note 5, at 91-100 (discussing the shortcomings of potential
criminal prosecution strategies for Craigslist’s “Adult Services” section).
7
47 U.S.C. § 230.
8
“The definition of an ‘interactive computer service’ (ICS) is very broad
under the CDA, including: ‘any information service, system, or access software provider
that provides or enables computer access by multiple users to a computer server.’” Lori
E. Lesser, Social Network and Blogs, 1001 PLI/Pat 101, 117 (2010); 47 U.S.C.
§ 230(f)(2). Courts have interpreted interactive computer services to include websites
as well. Lesser, supra, at 117 (citing Universal Commc’n Sys., Inc. v. Lycos, Inc., 478
F.3d 413, 419 (1st Cir. 2007)). “The term ‘information content provider’ means any
person or entity that is responsible, in whole or in part, for the creation or development
of information provided through the Internet or any other interactive computer
service.” 47 U.S.C. § 230(f)(3).
9
47 U.S.C. § 230(c)(1).
10
Doe v. Friendfinder Network, Inc., 540 F. Supp. 2d 288, 294 (D.N.H. 2008).
“[O]ther courts that have addressed these issues have generally interpreted Section 230
immunity broadly, so as to effectuate Congress’s ‘policy choice . . . not to deter harmful
online speech through the . . . route of imposing tort liability on companies that serve as
intermediaries for other parties’ potentially injurious messages.’” Lycos, Inc., 478 F.3d at
418 (quoting Zeran v. Am. Online, Inc., 129 F.3d 327, 330-31 (4th Cir.1997)).
11
See 47 U.S.C. § 230(c). For the definition of an “interactive computer
service,” see supra note 8.
2012] POLICING THE VIRTUAL RED LIGHT DISTRICT 825
liability for hosting content created entirely by third parties,
which includes sex-sales advertisements.
12
As a society that condemns, and has outlawed, sex
trafficking and prostitution (collectively, “sex sales”), we should
not have to rely on societal pressures—from open letters to
media reports
13
—to hold classified-ads websites accountable for
the rampant criminal activity facilitated through the sites’
adult-services sections. Although many have tried, plaintiffs
have had little luck getting around section 230.
14
Despite the
development of creative litigation strategies, including (1) the
Estoppel Approach,
15
(2) the Grokster Approach,
16
(3) the
Roommates.com Approach,
17
and (4) the Default-Injunction
Approach,
18
each strategy has its own weaknesses, and thus,
none of them will effectively combat the problem of online sex
sales. Therefore, Congress should amend section 230 in order
to obtain a more effective, long-term solution to these problems.
The Commercial Sex Distribution Amendment (CSDA) would
preserve traditional distributor liability for classified-ads
websites. Under such an amendment, classified-ads websites
would be liable for unlawful sex postings by third parties if the
websites were notified about the postings but took no steps to
remove the postings, because they would then become
distributors that knowingly distribute illegal content. As a
“distributor,” the website would lose the shield of section 230
“publisher” immunity.
19
This note is divided into five parts. Part I contains a
brief history of prostitution and sex trafficking, including their
Internet evolution. Part II discusses the policy reasons for, and
the purpose of, section 230. Part III explores the four litigation
12
See, e.g., Dart v. Craigslist, Inc., 665 F. Supp. 2d 961 (N.D. Ill. 2009)
(where the court found Craigslist immune from civil liability for third-party sex-sales
advertisements under CDA section 230).
13
See infra notes 44-51 and accompanying text.
14
See, e.g., Chi. Lawyers’ Comm. for Civil Rights Under Law, Inc. v.
Craigslist, Inc., 519 F.3d 666, 672 (7th Cir. 2008); Zeran, 129 F.3d at 328; Dart, 665 F.
Supp. 2d at 966.
15
See infra Part III.A.
16
See infra Part III.B.
17
See infra Part III.C.
18
See infra Part III.D.
19
As the law stands now, courts have held that interactive computer services
that conduct no filtering are, at most, distributors. Cubby, Inc. v. Compuserve, Inc.,
776 F. Supp. 135, 139 (S.D.N.Y. 1991). More importantly, courts have also decided that
section 230 eliminates traditional distributor liability for websites, despite the fact that
the statute only mentions publisher liability. Zeran, 129 F.3d at 332; see infra notes
148-64 and accompanying text.
826 BROOKLYN LAW REVIEW [Vol. 77:2
strategies mentioned above and explains why each strategy
ultimately fails to provide plaintiffs with relief on the merits.
Part IV presents a legislative solution to online-prostitution
and sex-trafficking problems. This solution, the CSDA, finds its
foundation in common-law principles of distributor liability for
the distribution of tortious materials.
20
Finally, Part V
addresses the potential problems with the CSDA and explains
how those problems can be overcome.
I. P
UTTING PROSTITUTION AND SEX TRAFFICKING IN
CONTEXT
Prostitution, perhaps the “‘oldest profession’ in the
world,”
21
is defined as “[t]he act or practice of engaging in
sexual activity for money or its equivalent.”
22
In contrast, sex
trafficking is defined as using force, fraud, or coercion to cause
a person to “engage in a commercial sex act”—or in the case of
a person under eighteen years of age, simply causing that
person to engage in a commercial sex act.
23
In other words, sex
trafficking is forced prostitution, or alternatively, facilitating
prostitution with a minor.
Although it is often hard to distinguish between voluntary
prostitution and involuntary sex trafficking, the two have
coexisted in the United States since the eighteenth century.
24
20
Under tort law, a distributor “who intentionally and unreasonably fails to
remove defamatory matter that he knows to be exhibited on land or chattels in his
possession or under his control is subject to liability for its continued publication.”
R
ESTATEMENT (SECOND) OF TORTS § 577(2) (1977). As one author notes, these kinds of
defamation cases “typically involve a defendant who, though not the author of the
defamatory statement in question, has implicitly ratified that statement by his failure
to remove it from a place of prominence on his property.” Gregory M. Dickinson, Note,
An Interpretive Framework for Narrower Immunity Under Section 230 of the
Communications Decency Act, 33
HARV. J.L. & PUB. POL’Y 863, 877 (2010).
21
See, e.g., Rebecca L. Wharton, Note, A New Paradigm for Human
Trafficking: Shifting the Focus from Prostitution to Exploitation in the Trafficking
Victims Protection Act, 16 W
M. & MARY J. WOMEN & L. 753, 759 (2010) (citing NILS
JOHAN RINGDAL, LOVE FOR SALE: A WORLD HISTORY OF PROSTITUTION 4 (Richard Daly
trans., Grove Press 1st ed. 2004) (1997)); R.
BARRI FLOWERS, THE PROSTITUTION OF
WOMEN AND GIRLS 5 (1998).
22
BLACK’S LAW DICTIONARY 576 (3d Pocket ed. 2006). Additionally,
prostitution exists in several forms, such as street prostitution, escort services, and
brothels. Ronald Weitzer, The Politics of Prostitution in America, in S
EX FOR SALE 159,
163-65 (Ronald Weitzer ed., 2000).
23
Trafficking Victims Protection Act, 18 U.S.C.A § 1591 (West 2000 & Supp. 2011).
24
Prostitution and the Trafficking of Women, IOWA STATE UNIV.,
http://www.public.iastate.edu/~womenstu/ws201student/prostitution/homepage.html
(last visited Oct. 13, 2011).
2012] POLICING THE VIRTUAL RED LIGHT DISTRICT 827
During its earliest days, “the incidence of prostitution was low”
25
in America, partly because adultery was extremely common and
partly because men could often have sex with slaves or
indentured servants rather than prostitutes.
26
In the early
nineteenth century, as cities and industry expanded, so too did
the business of prostitution.
27
Until the end of World War I,
prostitution existed in plain view in many American cities.
28
But prostitution did not thrive for long. During World
War II, law enforcement and the general public began to see
prostitutes as a dangerous threat to soldiers and laborers, and
reformers made efforts to decrease the open business of
prostitution.
29
After that, in the 1950s and 1960s, police arrested
prostitutes more frequently, men did not hire prostitutes as
often, organized crime found more lucrative sources of revenue,
and the entire business was largely forced underground.
30
Over the past fifty years, however, the sexual culture in
America has changed dramatically—and so has prostitution. In
the 1960s, a “sexual revolution” began, and pornography
became available for mass consumption for the first time.
31
As
pornography became more pervasive in American society, so
too did prostitution, because, as one author writes,
“prostitution is the enacted version of pornography.”
32
As a
result, by the 1990s, prostitution was essentially “normalized”
in our society.
33
The prevalence of sex in the media, combined
with the increasingly regular entrance of women in the labor
force led to an increase in prostitution because “sex industries”
could offer women “higher wages than the labor force.”
34
Rather
than being a woman’s only work option, prostitution arguably
became a choice for some women;
35
and not only a choice for
women in lower socio-economic classes, but a choice for
educated, upper middle class women as well.
36
Accordingly,
25
T. C. Esselstyn, Prostitution in the United States, 376 ANNALS AM. ACAD.
POL. & SOC. SCI. 123, 126 (1968).
26
Id.
27
Id.
28
Id.
29
Id.
30
Id. at 127.
31
KATHLEEN BARRY, THE PROSTITUTION OF SEXUALITY 56 (1995).
32
Id. at 57.
33
Id. at 58-59.
34
Id. at 123.
35
Valerie Jenness, From Sex as Sin to Sex as Work: COYOTE and the
Reorganization of Prostitution as a Social Problem, 37 S
OC. PROBLEMS 403, 405-06 (1990).
36
Consider Ashley Dupré, a prostitute from an upper middle class suburb in
New Jersey, who arguably chose the profession of her own free will. See Kimberly
828 BROOKLYN LAW REVIEW [Vol. 77:2
“[s]ince 1970, the most dramatic changes in prostitution have
been its industrialization, normalization, and widespread
global diffusion.”
37
However, the rise in prostitution during the last thirty
years of the twentieth century pales in comparison to the rise
in prostitution over the last decade alone. Today, “[s]exual
freedom is now regarded by many as a basic liberty, and the
freedoms to buy and sell sexual services are arguably included
in sexual freedom.”
38
As one author correctly predicted in 1998,
“the number of girls and women entering the profession will
likely swell in the coming years as we enter the new century.”
39
A major reason for the swell in prostitution and sex
trafficking over the past decade is the advancement of the
Internet.
40
The Internet has made access to commercial sex
essentially effortless.
41
From the privacy of their own homes,
Internet users can sell and purchase sex instantly. The
“anonymity and community aspect to the Internet makes it a
powerful tool for traffickers, buyers, and facilitators.”
42
Although sex between consenting adults can be
harmless, the problem in the online sex-sales context lies in
that not all the sex-sales postings on classified-ads websites are
voluntary, and, based on the content of the postings alone, it is
nearly impossible to identify who is offering sex willingly
(voluntary prostitutes) and who is being forced to sell her body
against her will (victims of sex trafficking). Additionally, even
if many of the ads are posted by willing adult participants and
do not constitute sex trafficking, the sale of sex for money is
illegal in all fifty states.
43
An open letter to Craig Newmark—the founder of
Craigslist—sent by two victims of online sex trafficking shed
Launier & Katie Escherich, Ashley Dupré Exclusive: My Side of the Story, ABCNEWS
20/20 (Nov. 19, 2008), http://abcnews.go.com/2020/story?id=6280407&page=1.
37
BARRY, supra note 31, at 122.
38
PETER DE MARNEFFE, LIBERALISM AND PROSTITUTION 108 (2010).
39
FLOWERS, supra note 21, at 15.
40
LINDA A. SMITH ET AL., SHARED HOPE INT’L, THE NATIONAL REPORT ON DOMESTIC
MINOR SEX TRAFFICKING: AMERICA’S PROSTITUTED CHILDREN 19 (2009), available at
http://www.sharedhope.org/Portals/0/Documents/SHI_National_Report_on_DMST_2009.pdf.
41
Id.
42
Id.
43
See, e.g., N.Y. PENAL LAW § 230.00 (McKinney 2008). Prostitution is legal
only in some counties in Nevada in which state-regulated brothels exist. Weitzer, supra
note 22, at 159; N
EV. REV. STAT. ANN. § 244.345 (LexisNexis 2005).
2012] POLICING THE VIRTUAL RED LIGHT DISTRICT 829
light on the problems of involuntary prostitution.
44
In that letter,
the two teenage girls describe some of the horrors they suffered
while they were being sold for sex through the “Adult Services”
section of Craigslist. One of the girls explains that she was “sold
for sex by the hour at truck stops and cheap motels” and that
she was threatened, abused, and repeatedly raped.
45
Meanwhile,
the man who trafficked one of the girls online made an easy
$30,000 each month.
46
Undoubtedly other children and teenagers
have suffered the same fate. Thus, online classified-ads websites
facilitate violence and criminal activity that involves unwilling
children and teens by continually allowing third-party users to
advertise the sale of sex for money.
47
Moreover, even if those
third-party users are willing adults, the underlying conduct is
still unlawful, and often dangerous.
Seventeen attorneys general in 2010 recognized the
problems inherent in online sex sales, with the tension between
law enforcement and the classified-ads websites finally
reaching its breaking point on August 24, 2010. On that date,
the seventeen attorneys general sent a letter to Craig
Newmark and Jim Buckmaster, the founder and general
counsel of Craigslist, respectively, and requested the
immediate removal of the “Adult Services” section of
Craigslist.
48
In a move that surprised many, on September 4,
2010, Craigslist voluntarily replaced its “Adult Services”
section with a black text box that read “censored.”
49
Even more
surprisingly, several days later, the section was removed
entirely.
50
Although many people acknowledge the removal of
the adult-services section on Craigslist as a victory in the fight
against online prostitution and sex trafficking, others do not
44
Open letter from AK and MC to Craig Newmark, founder of Craigslist,
available at http://www.rebeccaproject.org/dearcraig/Dear_Craig.pdf (hereinafter “Craigslist
Open Letter”).
45
Id.
46
Id.
47
Id.
48
Letter from Attorneys General to Craig Newmark (Aug. 24, 2010), available at
http://www.ohioattorneygeneral.gov/CraigslistLetter. The attorneys general from Arkansas,
Connecticut, Idaho, Illinois, Iowa, Kansas, Maryland, Michigan, Mississippi, Missouri, New
Hampshire, Ohio, Rhode Island, South Carolina, Tennessee, Texas, and Virginia, cited
concern for “innocent women and children,” as well as Craigslist’s unique position as the
“only player in the sex industry who is in a position to stop these ads before they are
published,” as reasons for their request for removal. Id.
49
Adult Services Censored on Craigslist, CNN (Sept. 4, 2010),
http://articles.cnn.com/2010-09-04/justice/craigslist.censored_1_prostitution-ads-craigslist-
ceo-jim-buckmaster-founder-craig-newmark?_s=PM:CRIME.
50
Michael A. Lindenberger, Craigslist Comes Clean: No More ‘Adult Services,’ Ever,
TIME (Sept. 16, 2010), http://www.time.com/time/nation/article/0,8599,2019499,00.html.
830 BROOKLYN LAW REVIEW [Vol. 77:2
understand the problems surrounding such solicitation.
51
Craigslist removed its “Adult Services” section voluntarily, but
it is important to note that, under the CDA and relevant case
law, Craigslist was not legally required to do so.
52
Acknowledgment of Craigslist’s voluntary compliance as
a complete victory fails to adequately appreciate the problems
that surround sex solicitation in the first place. Additionally,
for victims of sex trafficking and law enforcement alike, the
voluntary removal of the Craigslist section does little to solve
the problem of online sex sales. Sex-sales postings are still
available on Craigslist—simply under other sections like
“Casual Encounters”
53
—and they are widely available on other
classified-ads websites that continue to host “Adult” or “Erotic”
services sections, such as Classifiedads.com, Webcosmo.com,
Backpage.com, and more.
54
As one commentator recognized,
when Craigslist removed its “Adult Services” section, other
classified-ads websites began “actively soliciting traffic from
the former “Adult Services” section of Craigslist.”
55
II. H
ISTORY AND PURPOSE OF SECTION 230
In 1996, with the enactment of the CDA, Congress made
its first attempt to substantially regulate Internet activity.
56
In
response to the ever-increasing presence of online sex sales, as
51
Some people argue that adult or erotic services sections on classifieds sites
actually make it easier to combat online sex crimes because the listings are all consolidated
in one place, making them easily identifiable for law enforcement agencies. See danah boyd,
How Censoring Craigslist Helps Pimps, Child Traffickers and Other Abusive Scumbags,
H
UFFINGTON POST (Sept. 6, 2010), http://www.huffingtonpost.com/danah-boyd/how-
censoring-craigslist-_b_706789.html.
52
47 U.S.C. § 230(c)(1) (2006); see, e.g., Dart v. Craigslist, Inc., 665 F. Supp.
2d 961, 967-69 (N.D. Ill. 2009) (holding that Craigslist was immune from civil liability
for commercial sex postings created by third parties); Chi. Lawyers’ Comm. for Civil
Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 672 (7th Cir. 2008) (holding
that Craigslist was immune from liability under section 230 for discriminatory housing
postings created by third parties); Zeran v. Am. Online, Inc., 129 F.3d 327, 333 (4th
Cir. 1997) (holding that plaintiff barred by section 230 from bringing suit against
defendant for third-party defamatory postings).
53
Casual Encounters, CRAIGSLIST.ORG, http://newyork.craigslist.org/cas/ (last
visited Oct. 13, 2011).
54
Erotic Services, CLASSIFIEDADS.COM, http://www.classifiedads.com/erotic_
services-99.html (last visited Oct. 13, 2011); Erotic Services, W
EBCOSMO,
http://www.webcosmo.com/listing/search.aspx?countryId=1&gId=5&dId=95 (last visited
Oct. 19, 2011); Adult Jobs, B
ACKPAGE.COM, http://newyork.backpage.com/AdultJobs/
(last visited Oct. 19, 2011).
55
Laura Sydell, Beyond Craigslist, Many Markets for Sex Traffickers, NPR
(Sept. 14, 2010), http://www.npr.org/templates/story/story.php?storyId=129863089.
56
The CDA was added as Title V of the Telecommunications Act of 1996,
Pub. L. No. 104-104, 110 Stat. 56.
2012] POLICING THE VIRTUAL RED LIGHT DISTRICT 831
well as other unlawful activity, Congress enacted section 223
57
and section 230 of the CDA.
58
Specifically, Congress enacted
section 223 to protect minors from indecent and obscene
materials found on the Internet.
59
Under subsections (a) and (d)
of section 223, it became a crime for someone to knowingly
transmit “obscene, indecent, or patently offensive material to
minors below the age of eighteen.”
60
The American Civil
Liberties Union (ACLU) found these provisions at odds with
the First Amendment’s guarantee of free speech and brought
suit to challenge the constitutionality of the statute.
61
In a 1997
decision, the Supreme Court sided with the ACLU and declared
subsections (a) and (d) of section 223 unconstitutional.
62
The
Court cited concerns about the “vague contours” of the statute,
including the fact that Congress did not define the terms
“indecent” or “patently offensive” and held that the indecency
and obscenity provisions of the CDA placed an overly broad
content-based restriction on free speech in violation of the First
Amendment.
63
As a result of this decision, the only enforceable
provision of the CDA that remains is section 230.
Congress originally enacted section 230 to limit liability
of interactive computer services for defamatory postings
created by third parties. More specifically, section 230 is “often
cast as a legislative response to the Stratton Oakmont, Inc.
[New York State Supreme Court] case.”
64
In that case, the court
held that a website and its operators were liable for libelous
statements made by third parties on a bulletin-board portion of
the site. Since the website’s administrators screened—and
either approved or rejected—all potential posts, the court found
that the website had acted as the publisher of the statements
57
47 U.S.C. § 223 (1996).
58
See 47 U.S.C. § 230 (2006); see also AARON SCHWABACH, INTERNET AND THE
LAW: TECHNOLOGY, SOCIETY, AND COMPROMISES 45 (2006) (“The Communications
Decency Act of 1996 (CDA) was the first law passed by Congress attempting to address
the availability of pornography and obscene materials to minors over the Internet.”).
59
Vasiliki Pagidas, Case Note, First Amendment—Freedom of Speech—Provisions
of the Communications Decency Act of 1996 Intended to Protect Minors from Exposure to
Indecent and Patently Offensive Material on the Internet Violate the First Amendment—Reno
v. ACLU, 117 S. Ct. 2329 (1997), 8 S
ETON HALL CONST. L.J. 975, 980 (1998).
60
Pagidas, supra note 59, at 980-81.
61
ACLU v. Reno, 929 F. Supp. 824, 827 (E.D. Pa. 1996).
62
Reno v. ACLU, 521 U.S. 844, 849 (1997).
63
Id. at 870-79. The Court further notes that the interest in protecting
children from harmful materials on the Internet “does not justify an unnecessarily
broad suppression of speech addressed to adults.” Id. at 875.
64
Brian J. McBrearty, Who’s Responsible? Website Immunity Under the
Communications Decency Act and the Partial Creation or Development of Online
Content, 82 T
EMP. L. REV. 827, 831 (2009).
832 BROOKLYN LAW REVIEW [Vol. 77:2
at issue.
65
Under this line of reasoning, a website’s liability
increased the more it monitored posts by third parties because
such monitoring effectively made a website a publisher, rather
than a distributor, of information created and submitted by
third parties. Therefore, Congress enacted section 230 to
“remove the disincentives to selfregulation [sic] created by the
Stratton Oakmont decision”
66
and to shield websites from
traditional publisher liability. Recall that the pertinent parts of
section 230 immunize interactive computer services, which
include classified-ads websites, from being “treated as the
publisher or speaker of any information provided by another
information content provider.”
67
Unfortunately, many courts have read section 230 so
broadly that they have granted immunity even to those
interactive computer services that do next to nothing to
monitor offensive or unlawful third-party content.
68
As the
Ninth Circuit Court of Appeals opined in 2003, “[S]o long as a
third party willingly provides the essential published content,
the interactive service provider [or website] receives full
immunity regardless of the specific editing or selection
process.”
69
The justification for such a broad reading of section
230 stems from the fact that “billions of users continually
transmit enormous quantities of information” through the
Internet, and although some of the information transmitted
may be illegal, “[t]here is no way for the [interactive service
providers] to police all of the content stored on and passing
through their systems.”
70
Therefore, in the commercial sex
context, so long as third-party users create the sex-sales
listings on classified-ads websites, the websites—as interactive
computer services, and not information content providers—
have immunity from civil and criminal liability, whether they
monitor the ads posted or not.
The 2009 case Dart v. Craigslist, Inc.,
71
illustrates this
immunity. In Dart, a county sheriff filed suit against Craigslist
65
Stratton Oakmont, Inc. v. Prodigy Servs. Co., No. 031063/94, 1995 WL
323710, at *5 (N.Y. Sup. Ct. May 24, 1995).
66
Zeran v. Am. Online, Inc., 129 F.3d 327, 331 (4th Cir. 1997).
67
47 U.S.C. § 230(c) (2006).
68
See, e.g., Zeran, 129 F.3d at 328 (holding that interactive service providers
are immune from tort liability for information created by third parties); Gentry v.
eBay, Inc., 121 Cal. Rptr. 2d 703, 712-16 (Ct. App. 2002); see also McBrearty, supra
note 64, at 834-36.
69
Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1124 (9th Cir. 2003).
70
SCHWABACH, supra note 58, at 190-91.
71
665 F. Supp. 2d 961 (N.D. Ill. 2009).
2012] POLICING THE VIRTUAL RED LIGHT DISTRICT 833
and claimed that the “Adult Services” section of the site
constituted a public nuisance because the content contained in
the section violated federal, state, and local prostitution laws.
72
The court dismissed the suit on the ground that the complaint
plainly treated “Craigslist as the publisher or speaker of the
information created by its users,” and that under section 230(c),
the provider of an interactive computer service, such as
Craigslist, had immunity and could not be treated as the
developer of information created by third parties.
73
Although the
Dart Court noted that the majority of courts take this broad
view of immunity for websites,
74
not all courts subscribe to such a
view, especially when faced with more innovative strategies
employed by plaintiffs.
III. L
ITIGATION STRATEGIES FOR CIRCUMVENTING SECTION
230
Admittedly, plaintiffs have developed creative litigation
strategies in attempts to circumvent section 230. The following
four approaches—Estoppel, Grokster, Roommates.com, and
Default-Injunction—all have significant weaknesses inherent
in relevant case law that impede their effectiveness in
combating online sex sales.
A. The Estoppel Approach
After severing ties with her boyfriend in 2004, Cecilia
Barnes began receiving phone calls, e-mails, and personal
visits from male strangers who wanted sex.
75
Unbeknownst to
Barnes, her ex-boyfriend was posting false profiles in her name
through Yahoo!, in which he listed all of Barnes’s contact
information, nude photographs of Barnes, and an open
invitation for sex.
76
Once Barnes figured out what was
happening, she contacted Yahoo! Inc. and requested removal of
the false profiles.
77
Barnes contacted Yahoo four separate times
before anyone from the company got back to her.
78
When
Yahoo’s director of communications finally contacted Barnes,
72
Id. at 963.
73
Id. at 969.
74
Id. at 965.
75
Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1098 (9th Cir. 2009).
76
Id.
77
Id.
78
Id.
834 BROOKLYN LAW REVIEW [Vol. 77:2
the director told Barnes that the profiles would be removed.
79
The profiles remained online for two months after that
conversation, and, as a result, Barnes brought suit against
Yahoo. Barnes claimed that she relied on Yahoo’s promise to
remove the profiles to her detriment, which constituted a
promissory estoppel claim under Oregon law.
80
The court held that section 230 did not bar Barnes’s
promissory estoppel claim because the duty allegedly violated by
Yahoo did not derive from its “status or conduct as a publisher
or speaker,” but rather “the duty [Yahoo] allegedly violated
[sprung] from a contract—an enforceable promise.”
81
The court
continued, “Contract liability here would come not from Yahoo’s
publishing conduct, but from Yahoo’s manifest intention to be
legally obligated to do something, which happens to be removal
of material from publication.”
82
Although Barnes asked Yahoo to
edit information, a role that traditionally belongs to publishers,
this editorial function had no effect on the website’s liability,
because the underlying claim was one based in contract law, not
publisher liability and tort law.
83
Although this approach worked for Barnes, the
promissory estoppel approach does not easily transfer to the
online classifieds context. A classified-ads website would only
face liability under the estoppel approach if a person, such as a
law enforcement official or an individual featured in one of the
ads without her consent, contacted the website to request
removal of a particular commercial-sex ad and the website
agreed to do so but then failed to follow through with the
removal. Websites could avoid exposure to contractual liability
by ignoring removal requests and thereby avoid forming a
contract with anyone who requests removal. As the Barnes
Court articulated, a website can avoid contract liability by
simply “disclaim[ing] any intention to be bound.”
84
Alternatively, websites could simply refuse to remove any ads
79
Id. at 1099.
80
Id. Promissory estoppel is a contract law principle under which “a promise
made without consideration may nonetheless be enforced to prevent injustice if the
promisor should have reasonably expected the promisee to rely on the promise and if
the promisee did actually rely on the promise to his or her detriment.” B
LACK’S LAW
DICTIONARY, supra note 22, at 253; RESTATEMENT (SECOND) OF CONTRACTS § 90 (1981).
81
Barnes, 570 F.3d at 1107.
82
Id.
83
Id. at 1107-09.
84
Id. at 1108. The court points out that a “general monitoring policy,” or
“attempt to help a particular person, on the part of an interactive computer service”
does not give rise to contract liability under a promissory estoppel approach. Id.
2012] POLICING THE VIRTUAL RED LIGHT DISTRICT 835
that do not contain clearly illegal content, and the First
Amendment will protect the websites.
85
Therefore, the
promissory estoppel approach actually creates an incentive for
websites to refuse to cooperate with removal requests.
Finally, even if a plaintiff can establish contractual
liability against a classifieds website, the remedy will be
limited to a reliance interest, or to what “justice requires,”
86
and
thus it is not a sufficient deterrent in the long run for
classified-ads websites that host sex-sales advertisements.
Classified-ads websites generate millions of dollars in revenue
from their adult-services sections,
87
and the payment of limited
contract damages would have little impact on those earnings.
Thus, the promissory estoppel approach does little to solve the
problem of website liability for online sex sales, and in fact may
create perverse incentives for websites to make no promises
regarding the monitoring or removal of postings.
B. The Grokster Approach
In Metro-Goldwyn-Mayer Studios Inc. v. Grokster, the
Supreme Court held Grokster, a software manufacturer, liable for
the illegal acts of third-party users of its software because the
Court found that Grokster had induced the users to commit the
unlawful acts in question.
88
Grokster developed and distributed
digital file-sharing software. The software allowed users to share
digital files, such as music and movies, directly between end-user
computers without going through a central server.
89
The Grokster
software allowed users to share many kinds of files with one
another, but the majority of files being shared were copyrighted
music and video files that users were sharing without
authorization.
90
As a result of this activity, various music
companies, motion picture studios, and publishers who owned the
relevant copyrights brought suit against Grokster and alleged
that Grokster “knowingly and intentionally distributed [its]
software to enable users to reproduce and distribute the
85
For a discussion of relevant First Amendment issues see infra Part V.
86
RESTATEMENT (SECOND) OF CONTRACTS § 90 (1981).
87
Before Craigslist shutdown its “Adult Services” section, it was estimated
that they would make more than $36 million from that section alone due to fees they
charged users to post in that section. Brad Stone, Sex Ads Seen Adding Revenue to
Craigslist, N.Y.
TIMES, Apr. 25, 2010, at B1, available at http://www.nytimes.com/
2010/04/26/technology/26craigslist.html.
88
545 U.S. 913, 919 (2005).
89
Id.
90
Id. at 920.
836 BROOKLYN LAW REVIEW [Vol. 77:2
copyrighted works in violation” of federal copyright law.
91
The
copyright holders wanted to hold Grokster liable simply for
manufacturing and distributing its software.
92
Grokster relied on the Supreme Court’s 1984 decision in
Sony Corp. of America v. Universal
93
for the proposition that
Grokster’s software was capable of noninfringing uses, and
therefore Grokster should escape liability.
94
In Sony, the Court
held that a VCR manufacturer and distributor was not liable for
secondary copyright infringement where the third-party users of
the VCR recorded copyrighted materials without authorization
because the VCR was developed and distributed primarily for
“commercially significant noninfringing uses.”
95
The Grokster
Court, however, refused to extend Sony-like immunity to
Grokster on the ground that, unlike the uses of the VCR,
Grokster’s software had the primary and intentional purpose to
share copyrighted works without permission.
96
The Court
ultimately held that “one who distributes a device with the object
of promoting its use to infringe copyright, as shown by clear
expression or other affirmative steps taken to foster infringement,
is liable for the resulting acts of infringement by third parties.”
97
Therefore, the Court held Grokster was secondarily liable for
copyright infringement committed by third-party users.
98
By applying the Grokster approach to online sex sales,
courts could hold interactive computer services, such as
Classifiedads.com and Webcosmo.com, secondarily liable for
third-party postings if those websites “actually [did] something
91
Id. at 920-21.
92
This kind of liability is known as secondary liability. See generally Shapiro,
Bernstein & Co. v. H. L. Green Co., 316 F.2d 304 (2d Cir. 1963). There are two kinds of
secondary liability: contributory and vicarious. A person may be liable for contributory
infringement where he has knowledge of direct infringement, and induces, causes, or
otherwise aids in that activity. Gershwin Pub. Corp. v. Columbia Artists Mgmt., Inc.,
443 F.2d 1159, 1162 (2d Cir. 1971). A person may be liable for vicarious infringement
where he has the ability to control infringing activity, but does not do so, and gains a
direct financial benefit from the infringing activity. Shapiro, 316 F.2d at 307-08.
93
Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984).
94
See Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 259 F. Supp. 2d
1029, 1035 (C.D. Cal. 2003).
95
Sony Corp., 464 U.S. at 442, 456.
96
Grokster, 545 U.S. at 941.
97
Id. at 936-37.
98
“Although Grokster and StreamCast do not therefore know when
particular files are copied, a few searches using their software would show what is
available on the networks the software reaches.” Id. at 922. Regardless of their
knowledge, or lack thereof, of the infringement being committed by its users, Grokster
was held liable on a vicarious liability theory, which is defined as “[a] person’s liability
for an infringing act of someone else, even though the person has not directly
committed an act of infringement.” B
LACK’S LAW DICTIONARY, supra note 22, at 427.
2012] POLICING THE VIRTUAL RED LIGHT DISTRICT 837
to encourage the illegal speech”
99
(i.e., induced third parties to
post ads for commercial sex). Classified-ads websites that
create specific forums for commercial sex ads under sections
titled “Adult Services” or “Erotic Services”—and then largely
turn a blind eye to the content of those sections—allow online
sex sales to thrive, and thus their operators have induced users
to violate the law.
100
Many classified-ads websites generate
significant revenue from their adult services sections,
101
and
third-party posters know that they have a place where they can
post ads for commercial sex without fear of repercussions.
However, plaintiffs in the online sex-sales context have a
heavy burden when it comes to presenting evidence to show that
a classified-ads website actually took steps to induce third
parties to create illegal postings on the site.
102
Most classified-ads
websites simply set up a forum for third parties to post
information created entirely by the third-party users.
103
As one
author argues, a website that “simply allows anyone and
everyone to post content on its service, but does not solicit or
purposely benefit from any illegal third-party content . . . passes
the Grokster test, whether the [site] knew about the illegal
material or not.”
104
Therefore, unless classified-ads websites
solicit illegal sex sales postings, and then benefit from those
postings, they fall outside of Grokster.
105
Moreover, the Court
held Grokster secondarily liable for acts of third parties in large
part because Grokster’s software had the primary purpose of
unlawfully sharing copyrighted works.
106
In contrast, most
classified-ads websites are created for the primary purpose of
providing a virtual marketplace where people can buy and sell
legal goods and services—not sex.
99
Zac Locke, Comment, Asking for It: A Grokster-Based Approach to Internet Sites
that Distribute Offensive Content, 18 S
ETON HALL J. SPORTS & ENT. L. 151, 155-56 (2008).
100
Inducement is defined as the “process of enticing or persuading another person
to take a certain course of action.” B
LACK’S LAW DICTIONARY, supra note 22, at 355.
101
See supra note 87.
102
See infra notes 111-14 and accompanying text.
103
See, e.g., Create Your Free Ad, CLASSIFIEDADS.COM, http://www.classifiedads.com/
post.php (last visited Oct. 5, 2011); Post Ads Free, W
EBCOSMO, https://www.webcosmo.com/
Post/Post.aspx (last visited Oct. 5, 2011).
104
Locke, supra note 99, at 170.
105
Some classified-ads websites do in fact generate revenue from their erotic
services sections by making users pay a fee to create listings in those sections, which
constitutes a benefit to the site. Most classified-ads websites will pass the Grokster test
anyway because they arguably do not solicit or encourage the creation of commercial-
sex advertisements. See supra notes 88-100 and accompanying text; see also infra notes
111-14 and accompanying text.
106
See Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 932
(2005).
838 BROOKLYN LAW REVIEW [Vol. 77:2
Rare exceptions do exist, however, with websites such as
AdultSearch.com.
107
Unlike more general classified-ads websites,
Adultsearch.com is a forum primarily for sex sales. Users of
Adultsearch.com have access to thousands of commercial sex
listings under categories such as “Erotic Services,” “Sex
Tourism,” “Erotic Massage,” and more.
108
Under the Grokster
test, classified-ads websites established primarily for
commercial sex postings could face liability for third-party sex
sales postings because the websites’ creators have the intent to
encourage online sex sales. However, a judgment against such
websites would likely have little or no impact in the fight against
online sex sales because most classified-ads sites devoted purely
to adult services are established to allow users to find lawful
casual sexual encounters, that is, sexual encounters that are
consensual and noncommercial, such as listings for strip clubs.
109
Therefore, only a small number of websites could arguably be
held liable under a Grokster approach.
Because most classified-ads websites are created for the
primary purpose of buying and selling goods and services that
are legal, and because section 230 provides broad immunity to
such interactive computer services, the Grokster approach will
likely fail in allowing plaintiffs to circumvent section 230, just
as it did in one 2007 defamation lawsuit in Massachusetts.
110
In Universal Communications Systems, Inc. v. Lycos, Inc.,
plaintiffs sued an interactive computer service for defamatory
postings created and posted by third parties on the defendant’s
website.
111
Plaintiffs specifically argued that section 230 did not
shield the defendant-website from liability because “it actively
induce[d] its subscribers to post unlawful content,” and, under a
Grokster analogy, the website should be held liable for that
inducement.
112
The court ruled in favor of the defendant-website
and noted, “It is not at all clear that there is a culpable assistance
exception to Section 230 immunity,” and even if “active
inducement could negate Section 230 immunity, it is clear that
107
ADULTSEARCH, http://www.adultsearch.com (last visited Oct. 13, 2011).
108
Id.
109
Even websites like Adultsearch.com include some lawful advertisements
for adult services such as strip clubs, adult stores, and noncommercial sexual
encounters. Id.
110
See Universal Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 414-15 (1st
Cir. 2007).
111
Id. at 415.
112
Id. at 421 (quoting Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.,
545 U.S. 913, 919 (2005)).
2012] POLICING THE VIRTUAL RED LIGHT DISTRICT 839
[Universal] has not alleged any acts by [the defendant-website]
that come even close to constituting . . . active inducement.”
113
The Universal Court rejected the Grokster approach in
the defamation context, and it is likely that plaintiffs in the
online sex sales context would face similar difficulties in trying
to show that classified-ads websites took affirmative steps to
induce third parties to post unlawful commercial sex ads.
Classified-ads websites function largely as blank forums for
third-party content, and even with websites such as
Adultsearch.com, plaintiffs will likely fall short of satisfying the
Grokster standard. A website that is founded purely for adult
services does not necessarily indicate that the interactive
computer service actively induces users to post ads for unlawful
adult services. In fact, even websites like LocalEscortPages.com
have policies against users posting such content.
114
Of course, an argument can be made that the mere
existence of adult services websites, coupled with the websites’
allowance of anonymous postings, encourages third parties to
create commercial sex advertisements when they may not have
done so prior to the existence of such forums. However, it is
unlikely that these facts rise to the level of active inducement
as laid out in the Grokster and Universal cases. Plaintiffs
would have a nearly impossible time showing that classified-
ads websites have actual intent to encourage users to create
unlawful adult services advertisements—the websites could
simply defend themselves by pointing to their “Terms of Use”
agreements in which they explicitly discourage the creation of
such ads. Therefore, the Grokster approach is unsatisfactory.
C. The Roommates.com Approach
By moving away from an inducement-liability theory,
and employing an information-creation argument, plaintiffs
saw some success in a 2008 suit against Roommates.com.
115
In
that case, the Fair Housing Councils of San Fernando Valley
and San Diego (Councils) successfully brought suit against
113
Id. Active inducement liability is “predicated on [a defendant] actively
encouraging (or inducing) infringement through specific acts.” Grokster, 545 U.S. at 942.
114
LocalEscortPages.com’s “Terms of Use” explicitly says that users are
“entirely responsible” for the content they create, and that users may not post illegal
content. Terms of Use, L
OCALESCORTPAGES.COM, http://www.localescortpages.com/
page/terms/0/ (last visited Oct. 5, 2011).
115
See generally Fair Hous. Council of San Fernando Valley v.
Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008).
840 BROOKLYN LAW REVIEW [Vol. 77:2
Roommates.com—a roommate matchmaking website—for
violations of the federal Fair Housing Act (FHA).
116
On the
Roommates.com website, users created personal profiles by
answering a series of required questions. In answering these
questions, users were required to disclose information about—
among other things—their “sex, family status and sexual
orientation.”
117
Answers to the required questions had to be
selected from a prepopulated menu of various options, known as a
drop-down menu, created by Roommates.com.
118
These questions
had to be answered in order to gain access to the available
roommate listings on the website.
119
Roommates.com also provided
a comments section for users to add preferences not adequately
detailed by the pre-selected menus for the required questions.
From the information disclosed through a user’s answers to the
required questions, as well as the user’s additional comments,
Roommates.com would then “steer users” to one another as
potential roommates based on “the preferences and personal
characteristics that [the website] itself force[d] subscribers to
disclose.”
120
The Councils claimed that Roommates.com matched
roommates based on discriminatory criteria and functioned as
a “housing broker doing online what it may not lawfully do off-
line” by asking discriminatory questions with respect to
housing sales or rentals, and then using that information to run
discriminatory roommate searches, in violation of the FHA.
121
The Councils argued that section 230 immunity did not apply to
Roommates.com and alleged that the website qualified as an
information content provider, not just an interactive computer
service, because it required users to answer discriminatory
questions, provided a pre-set list of answers to those questions,
and then used the discriminatory preferences gathered from
those answers to direct users to like-minded, potential
roommates.
122
The court agreed with the Councils, and held that
section 230 immunity did not apply to the discriminatory
questions posed by Roommates.com because the website served
as “more than a passive transmitter of information provided by
others; it [was] the developer, at least in part, of that
116
Id. at 1164.
117
Id.
118
Id. at 1165.
119
Id. at 1166.
120
Id. at 1167.
121
Id. at 1162.
122
Id. at 1164-65.
2012] POLICING THE VIRTUAL RED LIGHT DISTRICT 841
information.”
123
However, the court limited its holding to the
questions actually created by Roommates.com. With respect to
the additional comments section, the site was immune under
section 230 “because [Roommates.com] published the comments
as written, [and it] did not provide guidance or urge subscribers
to input discriminatory preferences.”
124
Local or national law enforcement agencies could apply
a similar approach to the online sex-sales context and bring suit
against classified-ads websites that host commercial sex
postings in violation of state and federal laws by arguing that
section 230 does not apply to such websites because the sites are
partial content creators—not just interactive computer
services—of the postings. However, this argument is weak when
applied to classified-ads websites because plaintiffs would have
an incredibly difficult task in showing that classified-ads
websites, which are mostly blank forums for information created
entirely by third parties, qualify as developers of sex-sales
advertisements in even the broadest sense of the word.
125
Classified-ads websites are designed and function more like the
additional comments section of Roommates.com, rather than the
required-questions section, because classified-ads websites
merely publish advertisements created freely by third parties,
and do not aid in the creation of the posts.
The weakness of the Roommates.com approach has been
exposed in several recent cases in which plaintiffs have tried to
argue that various websites were partial creators or developers of
the information posted by third parties on the sites, and thus not
immune from liability under section 230.
126
In response to these
123
Id. at 1166 (noting that “section 230 provides immunity only if the
interactive computer service does not ‘creat[e] or develop[]’ the information ‘in whole or
in part’” (citation omitted)).
124
Doe II v. Myspace Inc., 96 Cal. Rptr. 3d 148, 158 (Ct. App. 2009)
(discussing Roommates.com, 521 F.3d at 1174).
125
While plaintiffs in Chicago Lawyers’ did not make a Roommates.com
argument when they sued Craigslist for discriminatory housing postings on the site, the
Seventh Circuit Court of Appeals made it clear that Craigslist did not cause unlawful
postings on its site, and thus Craigslist was not a developer or partial developer of the
information, but rather just the publisher, and immune under section 230. See generally
Chi. Lawyers’ Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666
(7th Cir. 2008). Therefore, classified-ads websites designed and operated like Craigslist,
i.e., as largely blank forums for content created by third parties, likely won’t be found to
be developers, and the Roommates.com approach will fail.
126
See, e.g., Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250,
254 (4th Cir. 2009) (holding that a consumer review website could not be considered an
information content provider because the site was designed in a neutral way, and
simply “enable[d] [the] content to be posted online,” unlike Roommates.com); Doe II, 96
Cal. Rptr. 3d at 158-59 (holding that social-networking site Myspace.com could not be
842 BROOKLYN LAW REVIEW [Vol. 77:2
arguments, the courts simply distinguish the websites sued from
Roommates.com, noting that “Roommate’s website [was] designed
to force subscribers to divulge . . . discriminatory preferences,”
while the websites at issue simply provide “neutral tools” that
enable users to independently create postings of their choosing.
127
Therefore, in order to defeat the Roommates.com approach,
defendants need only distinguish classified-ads websites from the
questions section of Roommates.com and analogize the sites to the
additional comments section of Roommates.com.
Further, plaintiffs would not likely have any more
success under a Roommates.com approach by arguing that
classified-ads websites are partial creators of commercial sex
postings on the ground that the classifieds sites create sections
titled “Adult Services” or “Erotic Services.” In fact, the Illinois
sheriff in Dart v. Craigslist, Inc. employed this argument when
he brought the public nuisance claim against Craigslist.
128
The
sheriff argued that Craigslist caused or induced its users to
post unlawful commercial sex ads “by having an ‘adult services’
category with subsections like ‘w4m’ [women for men] and by
permitting its users to search through the ads based on [the
users’] preferences.”
129
The court disagreed and noted that
Craigslist did not cause the creation of unlawful postings on its
site but rather took steps to warn users against posting such ads
in the site’s “Terms of Use” agreement.
130
The court further stated
that “[t]he phrase ‘adult,’ even in conjunction with ‘services,’ is not
unlawful in itself nor does it necessarily call for unlawful content”
and reasoned that one might post an advertisement for erotic
dancing, which is a lawful adult service.
131
Accordingly, courts have viewed the Roommates.com
decision as fact-specific and only applicable to websites that
assist in the creation of unlawful content on the site. As long as
considered an information content provider for purposes of civil liability because,
unlike Roommates.com, Myspace.com employed “neutral tools” and lawful questions in
its profile-creation process for users).
127
Doe II, 96 Cal. Rptr. 3d at 158.
128
See Dart v. Craigslist, Inc., 665 F. Supp. 2d 961, 968 (N.D. Ill. 2009).
129
Id. (internal quotation marks omitted).
130
Id. at 962. Other classified-ads websites that continue to host adult
services sections similarly include prohibitions against unlawful commercial sex
postings in their terms of use. For example, Backpage.com includes a “User Conduct”
section in its terms of use, and subsection four of the User Conduct policy explicitly
prohibits the posting of illegal conduct, including “[p]osting any solicitation directly or
in ‘coded’ fashion for any illegal service exchanging sexual favors for money or other
valuable consideration.” Terms of Use, B
ACKPAGE.COM, http://newyork.backpage.com/
online/classifieds/Terms (last visited Oct. 5, 2011).
131
Dart, 665 F. Supp. 2d at 968.
2012] POLICING THE VIRTUAL RED LIGHT DISTRICT 843
a classified-ads website does not use pre-populated content to the
same extent as Roommates.com, where users were forced to
create illegal content, section 230 applies, and those sites will be
immune under a Roommates.com theory of liability. In order to
succeed on a Roommates.com approach, a classifieds site would
have to qualify as a partial developer of the unlawful sex-sales
advertisements by hosting adult services sections that force users
to choose whether they are seeking a woman or a man, a specific
kind of sexual encounter, and a price range for those services.
Because most sites do exactly the opposite of this and actually
warn users against posting such ads, the Roommates.com
approach will not aid plaintiffs in circumventing section 230.
D. The Default-Injunction Approach
The First Amendment to the United States Constitution
protects anonymous speech.
132
For this reason, Internet users
may post content on websites anonymously. However, such a
protection creates a problem when it comes to illegal speech.
For example, when an anonymous user posts defamatory
remarks about another person or entity on a website operated by
an independent interactive computer service, the target of the
defamatory speech will want to have the content removed from
the site. Unfortunately, it is difficult, and sometimes even
impossible to uncover the identity of the anonymous user who
posted the remarks at issue.
133
Moreover, even if the user’s
identity is known, he or she will rarely show up to court.
Therefore, victims of defamatory Internet posts have a difficult
time getting the content removed, especially if a website refuses
to do so voluntarily,
134
because the content creators cannot be
located, and section 230 shields websites from liability.
In response to the difficulties presented in removing
defamatory postings from websites, targets of such postings
132
See Talley v. California, 362 U.S. 60, 64 (1960) (holding that “an
identification requirement [for distributing pamphlets] would tend to restrict freedom
to distribute information and thereby freedom of expression”).
133
Courts have adopted various standards for granting motions to obtain
identifying information of anonymous posters in defamation cases. The most common
approach is outlined in Independent Newspapers, Inc. v. Brodie, 966 A.2d 432 (Md.
2009). According to the Brodie Court, plaintiffs must first try to notify the anonymous
posters about the lawsuit directly. Id. at 457. Next, if the anonymous defendants do not
respond, the plaintiffs must set out the exact statements at issue, as well as a prima
facie defamation claim. Id. The court will then conduct a balancing test between the
anonymous poster’s First Amendment rights against the necessity of disclosure for
purposes of the defamation claim. Id.
134
See supra notes 75-80 and accompanying text.
844 BROOKLYN LAW REVIEW [Vol. 77:2
have recently begun to use a litigation tactic that may be called
the Default-Injunction approach.
135
Under this approach,
victims of defamatory posts bring suit against the third-party
posters for defamation instead of wasting time by bringing a
claim directly against the website hosting the defamatory
content.
136
If plaintiffs cannot ascertain the identities of the
defendant-posters, plaintiffs simply list defendants as “Does.”
Predictably, defendants in these suits do not show up to defend
against the claims, and the court then enters a default against
them. Next, if proper under applicable law, the court will enter
a permanent injunction against the defaulting defendants,
which “requir[es] [the defendants] to . . . remove their
defamatory postings from the websites.”
137
Because the
defendants can be difficult to find, plaintiffs approach the
“third party providers of the websites to enlist their help in
deleting the postings.”
138
The plaintiffs will show the websites
the default injunction, and, generally, the websites will
voluntarily comply.
139
As Internet law scholar Eric Goldman
notes, in order to avoid the litigation costs associated with
challenging such action, most websites “would speedily comply
with a default injunction, no questions asked—especially if the
user is not around to protest the takedown.”
140
Under this approach, law enforcement officials could
bring suit against anonymous or identifiable users who post
unlawful sex ads on classified-ads websites in violation of state
or federal laws. It is unlikely that the defendants will appear in
135
See, e.g., Blockowicz v. Williams, 675 F. Supp. 2d 912, 913 (N.D. Ill. 2009).
See generally Bobolas v. Does, No. CV-10-2056-PHX-DGC, 2010 WL 3923880 (D. Ariz.
Oct. 1, 2010).
136
Websites, as service providers, not content creators, are immune from
liability for the presence of defamatory postings on their sites. See 47 U.S.C. § 230(c)
(2006); see, e.g., Zeran v. Am. Online, Inc., 129 F.3d 327, 328 (4th Cir. 1997). This
immunity under 47 U.S.C. § 230 gives websites little incentive to remove posts. See
Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1098 (9th Cir. 2009).
137
Blockowicz, 675 F. Supp. 2d at 913. As one commentator notes, “[w]ithout
any defendant there to argue otherwise, the courts seem willing to grant virtually any
relief requested by the plaintiff.” Eric Goldman, A New Way to Bypass 47 USC 230?
Default Injunctions and FRCP 65, T
ECH. & MARKETING L. BLOG (Nov. 10, 2009, 11:50
AM), http://blog.ericgoldman.org/archives/2009/11/a_new_way_to_by.htm.
138
Blockowicz, 675 F. Supp. 2d at 913.
139
Plaintiffs can serve an injunction on a non-party to a suit if the non-party
acted in “active concert or participation” with defendant. F
ED. R. CIV. P. 65(d)(2)(C).
The major problem here would be proving that websites acted in concert or
participation with third-party posters. Despite this problem, most websites would
rather remove the contested material than incur the cost of litigation. See Blockowicz,
675 F. Supp. 2d at 913 (two of three websites approached by plaintiff removed the
contested third-party posts).
140
Goldman, supra note 137.
2012] POLICING THE VIRTUAL RED LIGHT DISTRICT 845
court to defend against the claims, and the court will enter
default injunctions against them. From there, law enforcement
officials could approach the classified-ads websites with default
injunctions in hand. The sites would then be more likely to
remove the ads than to expend resources to contest compliance.
The problem with the Default-Injunction approach,
however, arises when a website refuses to remove postings
when approached. This happened in 2009 when a consumer-
review website, RipoffReport.com, refused to take down
allegedly defamatory content on its site when contacted by the
target of the content who had obtained a default injunction
against a third-party poster.
141
Under the shield of section 230,
RipoffReport.com has a strict “no-takedown policy—even if the
user requests the takedown, and even in the face of a court
order against the user.”
142
In an attempt to force compliance
with the takedown injunction over RipoffReport.com’s no-
takedown policy, the plaintiffs turned to the court and moved
for third-party enforcement of the injunction against
RipoffReport.com.
143
In its defense, RipoffReport.com argued
that section 230 “protects its publication decisions” with
respect to third-party content, and it need not comply with the
injunction, because it was not a party to the underlying
defamation suit and did not act in concert with the poster.
144
The court agreed with RipoffReport.com and found that the
site
145
had too “tenuous” a connection to the third-party users to
compel “compliance with the court’s permanent injunction.”
146
Despite its holding, the court sympathized with plaintiffs who
“find themselves the subject of defamatory attacks on the
[I]nternet yet seemingly have no recourse to have those
statements removed from the public view.”
147
141
Eric Goldman, Ripoff Report Not Bound by Takedown Injunction Against
User—Blockowicz v. Williams, T
ECH. & MARKETING L. BLOG (Dec. 22, 2009, 6:44 PM),
http://blog.ericgoldman.org/archives/2009/12/ripoff_report_n.htm.
142
Id.
143
See Blockowicz, 675 F. Supp. 2d at 913.
144
Goldman, supra note 141. “To enforce the injunction against a non-party
under Federal Rule of Civil Procedure 65(d), that party must be acting in concert or
legally identified (i.e. acting in the capacity of an agent, employee, officer, etc.) with the
enjoined party.” Blockowicz, 675 F. Supp. 2d at 915 (citing Sec. Exch. Comm’n. v.
Homa, 514 F.3d 661, 674 (7th Cir. 2008)).
145
Technically, the issue was with Xcentric, the operator of RipoffReport.com.
See Blockowicz, 675 F. Supp. 2d at 913.
146
Id. at 916. It is important to note that the “judge’s ruling turned solely on a
statutory interpretation of FRCP 65,” and not on section 230. Goldman, supra note 141.
147
Blockowicz, 675 F. Supp. 2d at 916.
846 BROOKLYN LAW REVIEW [Vol. 77:2
The decision by the court in the RipoffReport.com case
substantially weakened the Default-Injunction approach.
Under the holding of the district court, classified-ads websites
need not remove unlawful sex-sales ads created by third
parties, even if law enforcement obtains a takedown injunction
against the third-party posters. Law enforcement officials are
essentially left with no recourse to remove illegal commercial
sex ads from sites because the websites have immunity from
direct liability under section 230, and need not comply with
indirect, Rule-65 injunctions under emerging case law.
IV. A
LEGISLATIVE SOLUTION: THE COMMERCIAL SEX
DISTRIBUTION AMENDMENT
Thus far, courts have not provided adequate relief for
plaintiffs who seek removal of objectionable or unlawful
content from various websites.
148
Although some courts have
expressed concern about the overly broad reach of section 230,
149
courts generally continue to rule for defendant-websites,
because section 230 leaves courts’ hands tied. Even when
plaintiffs have employed litigation strategies such as the
Estoppel, Grokster, Roommates.com, and Default-Injunction
approaches, courts have consistently ruled in favor of the
defendant-websites as interactive computer services and
publishers, rather than content creators.
150
Given the current
dead-ends for plaintiffs, and the serious social harm that online
prostitution and sex-trafficking present,
151
the legislature
148
Since its enactment, section 230 has barred two-thirds of all claims against
websites “who facilitated the publication or distribution of content they believed had
caused harm.” David S. Ardia, Free Speech Savior or Shield for Scoundrels: An
Empirical Study of Intermediary Immunity Under Section 230 of the Communications
Decency Act, 43 L
OY. L.A. L. REV. 373, 492 (2010).
149
See, e.g., Blumenthal v. Drudge, 992 F. Supp. 44, 51-52 (D.D.C. 1998) (“If it
were writing on a clean slate, this Court would agree with plaintiffs. . . . But Congress
has made a different policy choice by providing immunity even where the interactive
service provider has an active, even aggressive role in making available content
prepared by others.”).
150
See supra Part III.
151
On one hand, the social harms associated with sex-trafficking are fairly
obvious, as the practice quite literally constitutes a form of child slavery. S
MITH ET AL.,
supra note 40, at 4. With sex-trafficking, children are commercially exploited for sex,
and, in the process, they are physically, psychologically, and sexually abused. See
id.
Congress recognized the social harms created by sex-trafficking, and enacted the
Trafficking Victims Protection Act of 2000, 22 U.S.C. §§ 7101-7112 (2006), “to prevent
victimization, protect victims, and prosecute perpetrators of human trafficking.” Id.
On the other hand, the social harms associated with prostitution are much
less obvious, because, by definition, prostitutes are individuals who have reached the
age of majority and can consent to sex in exchange for money or other goods. Feminist
2012] POLICING THE VIRTUAL RED LIGHT DISTRICT 847
should take action to amend section 230 in the form of the
Commercial Sex Distribution Amendment (CSDA) in order to
better aid law enforcement officials in the fight against online
prostitution and sex-trafficking.
The CSDA would carve out a narrow exception to
section 230 only in the online sex-sales context. Under the
CSDA, an interactive computer service, such as a classified-ads
website, would become a distributor once local or national law
enforcement officials alerted the provider to the presence of
illegal sex-sales ads
152
—those ads that advance prostitution or
sex trafficking
153
—on the relevant website. Once an interactive
computer service has actual knowledge of such content and
thereby becomes a distributor, common-law tort principles of
distributor liability would apply.
154
Under such principles,
distributors such as booksellers, libraries, and newsstands
would face liability for the dissemination of tortious materials
“if they either know or have reason to know of the [tortious]
nature of their publications,”
155
yet continue to distribute those
groups, however, argue that even if prostitution is sometimes consensual, the practice
nevertheless “represents women’s subordination and degradation in patriarchal
society.” D
EBORAH ROSE BROCK, MAKING WORK, MAKING TROUBLE: PROSTITUTION AS A
SOCIAL PROBLEM 4 (1998). Further, traditional religious groups argue that prostitution
“flies in the face of the ideals of monogamy, fidelity, and chastity.” Id. More tangibly,
social research suggests that there is widespread drug use among prostitutes, a high
risk of sexually transmitted diseases, malnourishment, and other health problems that
often go untreated. See Judith Porter & Louis Bonilla, Drug Use, HIV, and the Ecology
of Street Prostitution, in S
EX FOR SALE, supra note 22, at 103.
152
The burden of reporting the presence of sex-sales advertisements would
thus fall on a party with great interest in eliminating such content—law enforcement
agencies. This strategy is analogous to the takedown requirements under the Digital
Millennium Copyright Act (DMCA). 17 U.S.C.A. § 512 (West 2005 & Supp. 2011).
Under applicable copyright law, the burden lies with copyright owners to police the
Internet for instances of infringement, and then, under section 512(c) of the DMCA, the
copyright owner can report those instances to the relevant websites in order to obtain a
takedown of the allegedly infringing content. See id.
153
The New York Penal Law defines “advances prostitution” as follows:
A person “advances prostitution” when, acting other than as a prostitute or as a
patron thereof, he knowingly causes or aids a person to commit or engage in
prostitution, procures or solicits patrons for prostitution, provides persons or
premises for prostitution purposes, operates or assists in the operation of a house
of prostitution or a prostitution enterprise, or engages in any other conduct
designed to institute, aid or facilitate an act or enterprise of prostitution.
N.Y. P
ENAL LAW § 230.15 (McKinney’s 2008).
154
See RESTATEMENT (SECOND) TORTS § 581 (1977).
155
Susan Freiwald, Comparative Institutional Analysis in Cyberspace: The
Case of Intermediary Liability for Defamation, 14
HARV. J.L. & TECH. 569, 590 (2001)
(citing RESTATEMENT (SECOND) TORTS § 581 (1977)). Note that distributor liability
typically arises in the context of defamation, but it can also be extended to the
distribution of obscene materials. See, e.g., Smith v. California, 361 U.S. 147 (1959)
(holding that local ordinance must contain a knowledge requirement in local ordinance
848 BROOKLYN LAW REVIEW [Vol. 77:2
publications anyway. Therefore, a classified-ads website would
only be liable for commercial sex ads created by third parties if
they had actual knowledge
156
of such ads and took no steps to
remove the ads. As some commentators have suggested,
Congress “intended for section 230(c) to override only
publisher, not distributor, liability.”
157
Without the CSDA, websites may never have to take
responsibility for third-party commercial sex ads, and countless
women and children will continue to be exploited through a
medium that is both cheap and fast. As section 230 case law
has developed, courts have decided not to apply common-law
distributor liability principles to the Internet.
158
Every court
that has had an opportunity to distinguish between publisher
liability and distributor liability under section 230 has declined
to do so and instead has immunized websites from both
publisher liability and distributor liability, despite the fact that
section 230 uses only the word “publisher” and not
“distributor.”
159
For example, in Zeran v. America Online, Inc.,
160
plaintiff Kenneth Zeran sued America Online (“AOL”) for
defamation and argued that “[section] 230 immunity eliminates
only publisher liability, leaving distributor liability intact.”
161
The plaintiff claimed that because he gave AOL notice of the
defamatory postings, AOL had actual knowledge and was
therefore subject to distributor liability when it did not remove
the posts.
162
The court disagreed with the plaintiff, holding that
AOL was immune from both publisher liability and distributor
liability under section 230 because distributors are a “type of
that held booksellers liable for the distribution of obscene materials). In the online sex-
sales context, the ads are either unlawful on their face, or, if written more subtly,
constitute tortious content in the form of a public nuisance. See Dart v. Craigslist, Inc.,
665 F. Supp. 2d 961, 962-63 (N.D. Ill. 2009).
156
Actual knowledge is defined as “[d]irect and clear knowledge, as distinguished
from constructive knowledge.” B
LACK’S LAW DICTIONARY, supra note 22, at 403.
157
Batzel v. Smith, 333 F.3d 1018, 1027 n.10 (9th Cir. 2003) (citations omitted).
158
Ardia, supra note 148, at 411 (citing Jonathan Zittrain, A History of Online
Gatekeeping, 19
HARV. J.L. & TECH. 253, 258 (2006)).
159
Batzel, 333 F.3d at 1027 n.10 (citing Zeran v. Am. Online, Inc., 129 F.3d
327, 331-34 (4th Cir. 1997); Ben Ezra, Weinstein, & Co. v. Am. Online, Inc., 206 F.3d
980, 986 (10th Cir. 2000); Doe v. Am. Online, Inc., 783 So. 2d 1010, 1013-17 (Fla.
2001)). It is important to note, however, that courts have immunized websites from
distributor liability in defamation suits only, not online prostitution and/or sex-
trafficking. Under the CSDA, traditional publisher liability would be left intact in the
online sex-sales context only, and the relevant defamation suits would be unaffected.
160
Zeran, 129 F.3d 327.
161
Id. at 331.
162
Id.
2012] POLICING THE VIRTUAL RED LIGHT DISTRICT 849
publisher for purposes of defamation law.”
163
The court went on
to note that, “once a computer service provider receives notice of
a potentially defamatory posting, it is thrust into the role of a
traditional publisher,” and therefore immune from liability.
164
Perhaps the Zeran Court rightfully declined to recognize a
distinction between publisher liability and distributor liability in
the defamatory-speech context,
165
but such a denial makes little
sense in the world of online sex sales, and ought not to apply
there. This move has left law enforcement without recourse
against websites that have knowledge of their role as hosts of
unlawful sex-sales ads, and yet do nothing to remove those ads.
166
If forced to apply the Zeran theory to the online sex-
sales context, websites would be immune from liability, even if
they knowingly hosted commercial sex ads after law
enforcement officials notified the websites of the existence of
such unlawful content. Therefore, if faced with a case in which
law enforcement agents could show that they had notified a
website of the presence of commercial sex ads on the site, and
further, that the website had failed to remove the content, then
the website could be liable as a distributor under the CSDA.
Pursuant to liability as a distributor, classified-ads websites
that violate the CSDA would be subject to substantial
monetary penalties, which would serve as incentive to comply
with takedown requests by law enforcement.
The CSDA would preserve the underlying policy goals of
section 230
167
because it would still not treat interactive
computer services, such as classified-ads websites, as
163
Id. at 332.
164
Id.
165
It can be argued that Congress intended to preclude distributor liability
with section 230, even though not explicitly mentioned in the statute, because such
preclusion would be consistent with the underlying policy goals of the statute,
including those mentioned in note 167, infra. At the same time, Congress recognizes
the importance of combating prostitution and sex trafficking, as evidenced through
their enactment of federal laws like the Trafficking Victims Protection Act of 2000, 22
U.S.C. §§ 7101-7112 (2006). Therefore, while Congress may have intended to preclude
distributor liability in the defamatory-speech context, it is unlikely that Congress
intended to limit liability for websites that knowingly disseminate or distribute
commercial sex ads.
166
Essentially, law enforcement has no way to combat online sex sales. Going
after individual facilitators is nearly impossible for the reasons discussed above. See
supra note 133 and accompanying text.
167
Policy goals of section 230 include—among other things—preserving the
“vibrant and competitive free market that presently exists for the Internet and other
interactive computer services, unfettered by Federal or State regulation,” and
encouraging the “development of technologies which maximize user control over what
information is received.” 47 U.S.C. § 230(b)(2), (3) (2006).
850 BROOKLYN LAW REVIEW [Vol. 77:2
publishers of content created by third parties, but law
enforcement would have an effective tool for combating online
sex sales where websites have knowledge of the unlawful
content. By creating a distinction between publishers and
distributors in the online sex-sales context, it is possible to
impose liability on classified-ads websites that allow online sex
sales to thrive without undermining the policy goals
168
and
textual construction of section 230,
169
or imposing unreasonable
restrictions on Internet speech.
170
Not only is distributor
liability much more limited than publisher liability,
171
but the
CSDA would limit interactive computer service liability even
further by restricting its application to the online sex-sales
context only. Therefore, classified-ads websites could still host
a free-flow of third-party information without fear that they
need to monitor every detail of every ad that is posted—a task
that is likely impossible on the Internet. Instead, law
enforcement officials, who have the relevant knowledge and
expertise about unlawful sexual activities, as well as proper
resources to better assess the possible presence of commercial
sex ads, would conduct monitoring and investigations.
If law enforcement officials could meet a preponderance
of the evidence standard to show that certain ads were more
likely than not illegal commercial sex ads, then the classified-
ads website would have to remove the ads. In other words, law
enforcement would need to present the websites with a
reasonable amount of evidence to support a takedown order.
Moreover, if the officials could show that illegal sex ads had a
substantial and pervasive presence within an adult services
section of a classified-ads website, the website would have to
remove the section entirely, which would solve the systemic
problem at its root.
172
168
Id.
169
Id. § 230.
170
For a discussion of First Amendment issues see infra Part V.
171
Immunity for Online Publishers Under the Communications Decency Act,
C
ITIZEN MEDIA L. PROJECT (Apr. 30, 2009), http://www.citmedialaw.org/legal-guide/
immunity-online-publishers-under-communications-decency-act (“Distributor liability is
much more limited [than publisher liability]. . . . The concern is that it would be impossible
for distributors to read every publication before they sell or distribute it, and that as a
result, distributors would engage in excessive self-censorship.”).
172
In order to make a showing of the substantial and pervasive presence of
unlawful commercial sex advertisements on classified-ads websites, law enforcement
officials would indeed be required to conduct more in-depth investigations, including
contacting the creators of suspicious listings, conducting sting operations, and more. If
the evidence gathered from an investigation could support the proposition that a
majority of the online advertisements at the time of the investigation were advocating
2012] POLICING THE VIRTUAL RED LIGHT DISTRICT 851
Further, the CSDA would be a cost-effective way to
control online prostitution and sex trafficking for classified-ads
websites. The amendment would not require websites to screen
third-party content because law enforcement would be
responsible for that task. By putting the burden of the cost of
screening on law enforcement, the CSDA would allow websites
to continue to operate and host information created by third
parties without fear of being held liable for information that
the sites do not create.
Finally, in order to protect the free-flow of information on
the Internet by shielding websites from costly litigation and by
respecting the constitutional rights of third-party users, the
CSDA could contain a procedural takedown provision akin to the
takedown provision of the Digital Millennium Copyright Act.
173
This provision would require interactive computer
services to designate a takedown agent to whom parties could
direct all takedown requests of illegal sex-sales advertisements.
Further, the provision would outline the substantive
requirements for the takedown requests created by law
enforcement officials and mandate that the officials clearly
identify the content at issue, the content’s precise location on
the website, and a statement of good faith belief in the illegality
of the content. Law enforcement officials who ordered takedowns
in bad faith could face fines. Additionally, the officials would be
required to attempt to notify the author of the post about the
takedown request. Upon receipt of a takedown notification,
absent voluntary removal by the author, the website would then
be required to remove the material at issue after ten business
days but before fourteen business days. This would give the
content creator time to object. Content creators may object to
any takedown notification with a counter-notification containing
a statement of good faith in the legality of the content. Upon
receipt of a counter-notification, the website would be required
to restore the content within ten days. At that point, law
enforcement would have to file suit against the content creator
directly in order to get the content removed.
The notification provision of the CSDA would give law
enforcement officials and content creators a clear procedural
framework for remedies under the statute. If a user’s lawful
advertisement were accidentally removed, the user would have a
prostitution and/or sex trafficking, then the classified-ads website would have to
remove the section.
173
See 17 U.S.C.A. § 512(c) (West 2005 & Supp. 2011).
852 BROOKLYN LAW REVIEW [Vol. 77:2
forum in which he could challenge the takedown.
174
More
importantly, with this system, the classified-ads websites would
not be hampered with having to police their pages, nor liable for
good-faith removal of certain sex-sales advertisements.
Additionally, law enforcement agencies would have incentive to
do their due diligence before issuing takedown orders, or else
risk facing fines.
V. P
OTENTIAL PROBLEMS WITH THE CSDA
Of course, some potential problems exist with the
practical application of the CSDA. First, this solution remains
costly for law enforcement entities. As the Illinois sheriff in
Dart attested, his local law enforcement unit expended
approximately 3120 man-hours and $105,081 during an eleven-
month span in which they conducted “prostitution stings using
information culled from advertisements in Craigslist’s erotic-
services category,” and made 156 arrests from those
operations.
175
As a remedy, the sheriff not only sought to enjoin
Craigslist from continuing to host commercial sex ads, but he
also wanted “to recoup the money his department ha[d] spent
policing Craigslist-related prostitution, compensatory damages,
and punitive damages.”
176
Law enforcement officials like the plaintiff in Dart may
object to the CSDA on the ground that it still requires their
agencies to expend considerable time and resources to fight
online sex sales. Given this burden, law enforcement agencies
might question whether it even makes sense to approach the
classified-ads websites. After all, if the agencies confirm the
existence of unlawful commercial sex ads through exhaustive
investigation, they could just go after the third-party creators of
the ads directly (they may have to do so as part of their
investigation in the first place).
177
It is at precisely this point,
however, that the CSDA would benefit law enforcement. Under
the amendment, law enforcement agencies need only satisfy a
preponderance of the evidence standard—more likely than not—
174
Such a user could also make out a case under 42 U.S.C. § 1983 for
deprivation of his First Amendment rights.
175
Dart v. Craigslist, Inc., 665 F. Supp. 2d 961, 962-63 (N.D. Ill. 2009).
176
Id. at 963.
177
“[R]eflecting the problem of ambiguous posts, Sheriff Dart allege[d] that in
a typical sting[,] an arrest is made only after the person identified in the ad offers an
undercover officer sex for money.” Id. at 962 & n.3. In other words, law enforcement
has to go through the effort of setting up an undercover sting operation to confirm the
illegality of commercial sex advertisements on classified-ads websites in the first place.
2012] POLICING THE VIRTUAL RED LIGHT DISTRICT 853
when they challenge the legality of sex-based classified
advertisements. Such a standard does not require sting
operations or other evidence needed to meet the level of a
reasonable-doubt standard, but rather it only requires factual
information that tends to show that a given advertisement is one
for sex in exchange for money, not just a therapeutic massage.
For example, an advertisement such as the one quoted
at the beginning of this note
178
likely needs no further evidence
than the text of the ad itself. Admittedly, not all ads are quite
so obvious, and some may require more evidentiary support.
For instance, the sheriff in Dart, through investigation of and
expertise in online adult services advertisements, explained
that third-party users often post commercial sex ads using code
language, such as substituting the word “roses” for the word
“dollars.”
179
In that instance, a law enforcement official would
only need to attach an affidavit to a copy of the advertisement
in which he or she explains the use of code words that online
facilitators commonly use to advertise sex sales. Additionally,
many advertisements contain phone numbers, names or
nicknames, and photographs, and can be traced to a specific IP
address. Where law enforcement has evidence of an
advertisement for sex sales, and the officials gather
information associated with that ad, they could raise red flags
where the same information is subsequently listed in new ads
that appear to advertise commercial sex.
Obviously, many advertisements are so ambiguous that
the evidentiary task would prove more difficult. More
importantly, third-party users could just get more creative with
their use of code words or protective language. One such user on
Classifiedads.com went so far as to post the following disclaimer:
Donation exchanged for legal adult personal services such as
modeling, escorting or massages are simply for time, companionship,
and related stated service. Anything else that may or may not occur is
a matter of personal preference between two or more consenting
adults of legal age and is not contracted for nor is it requested for in
any matter. This is NOT an offer of or for prostitution. Fees charged
are for time spent only. I do reserve the right to decline appointments
and individuals as I deem necessary. By contacting me either through
phone or email you agree to this contract and these terms and hereby
178
See supra note 1 and accompanying text.
179
Dart, 665 F. Supp. 2d at 962 (referring to plaintiff’s complaint).
854 BROOKLYN LAW REVIEW [Vol. 77:2
acknowledge that you are not a part of any law enforcement agency
using this advertisement for entrapment or arrest.
180
Despite the fact that this user lists a price and includes
nearly nude photographs in her advertisement,
181
the possibility
exists that the ad is truly for a lawful escort service. This
precise problem makes the fight against online sex sales so
difficult. If the woman in the disclaimer-laden advertisement is
advertising a lawful service, then the First Amendment
protects her post.
182
Unfortunately, some constitutionally protected speech
will inevitably be swallowed up by the CSDA, especially in
cases like that of Craigslist in which entire adult services
sections are removed from classified-ads websites. However,
“there comes a point where that effect—at best a prediction—
cannot, with confidence, justify invalidating a statute on its
face and so prohibiting” the government “from enforcing the
statute against conduct that is admittedly within its power to
proscribe.”
183
If it is indeed true that, before removing its “Adult
Services” section, Craigslist was “the single largest source for
prostitution, including child exploitation, in the country,”
184
then takedowns of entire adult services sections on classified-
ads websites will dramatically reduce the incidence of online
prostitution and sex trafficking. Such regulation would send a
message that classified-ads websites will no longer be free-for-
all forums in which illegal activity will be tolerated.
Finally, the CSDA faces a free-speech challenge from
the First Amendment of the United States Constitution. The
First Amendment dictates that Congress “shall make no
law . . . abridging the freedom of speech.”
185
The freedom
implicated by this amendment is one of the most important for
citizens of the United States.
186
The right of free speech, as
Justice Brandeis once said, is “fundamental.”
187
Statutes that
attempt to limit such fundamental rights are therefore subject
180
Post by PaRiiS, CLASSIFIEDADS.COM, http://adult.classifiedads.com/erotic_
services-ad4136067.htm (last visited Oct. 11, 2011).
181
Id.
182
See infra notes 185-92 and accompanying text.
183
People v. Foley, 731 N.E.2d 123, 128 (N.Y. 2000).
184
Dart, 665 F. Supp. at 962.
185
U.S. CONST. amend. I
186
See, e.g., Ashcroft v. Free Speech Coal., 535 U.S. 234, 253 (2002) (“The
right to think is the beginning of freedom, and speech must be protected from the
government because speech is the beginning of thought.”).
187
Whitney v. California, 274 U.S. 357, 373 (1927) (Brandeis, J., concurring)
(citations omitted).
2012] POLICING THE VIRTUAL RED LIGHT DISTRICT 855
to the highest standard of judicial scrutiny.
188
More specifically,
“statutes attempting to restrict or burden the exercise of First
Amendment rights must be narrowly drawn and represent a
considered legislative judgment that a particular mode of
expression has to give way to other compelling needs of
society.”
189
As discussed above, section 223 of the CDA was
struck down in Reno for not meeting this standard.
190
Although
the Court in Reno conceded that the government had a
compelling goal of “protecting minors from potentially harmful
materials” on the Internet, it ultimately held that section 223
was not “carefully tailored” to that goal because it was too
vague, and its effect was to ultimately suppress “a large
amount of speech that adults have a constitutional right to
send and receive.”
191
Statutes that attempt to limit free-speech
rights may not be overly broad.
Here, the CSDA has a potentially harmful effect on free
speech. Just as critics of section 223 of the CDA pointed out, the
statute would presumably affect legally acceptable speech in some
instances, and by extension, would “chill discourse
unacceptably.”
192
Similarly, it can be argued that the CSDA would
inevitably lead to the removal not just of illegal sex
advertisements, but also constitutionally-protected, adult services
advertisements. As a limit on speech, courts would subject the
CSDA to a high level of scrutiny.
In order for the CSDA to stand,
Congress must specifically tailor its means to a compelling end.
The reduction of instances of online sex sales that lead to
exploitation, and sometimes violence, is a compelling justification
for the CSDA.
193
Adult prostitutes post advertisements, and third
188
See United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938)
(“There may be narrower scope for operation of the presumption of constitutionality
when legislation appears on its face to be within a specific prohibition of the
Constitution, such as those of the first ten Amendments.”).
189
Broadrick v. Oklahoma, 413 U.S. 601, 611-12 (1973).
190
See supra notes 56-63 and accompanying text; see also Reno v. ACLU, 521
U.S. 844 (1997). In Reno v. ACLU, the Supreme Court declined to articulate the exact
standard that should apply to the Internet, with Justice Stevens remarking, “our cases
provide no basis for qualifying the level of First Amendment scrutiny that should be
applied to this medium.” Id. at 870. The Court did, however, discuss whether the CDA
was “carefully tailored” to its “goal,” which suggests a level of scrutiny akin to strict
scrutiny. Id. at 871.
191
Reno, 521 U.S. at 846, 871.
192
HAL ABELSON, KEN LEDEEN, & HARRY LEWIS, BLOWN TO BITS: YOUR LIFE,
LIBERTY, AND HAPPINESS AFTER THE DIGITAL EXPLOSION 241 (2008).
193
The adult services sections of classified-ads websites are thorns “in the side
of law enforcement agencies across the United States.” Larkin, supra note 5, at 111.
Most importantly, online commercial sex advertisements “have recently spawned a
string of robberies, sexual assaults, and murders.” Id. The adult services sections of
856 BROOKLYN LAW REVIEW [Vol. 77:2
parties who seek to exploit minors through sex-trafficking
arrangements also post advertisements.
194
Both types of
advertisements are illegal, and arguably unsafe. The CSDA would
aid in reducing the instances of prostitution, and in protecting
minors from this kind of abuse, because the posters or facilitators
would no longer reach such a wide, readily available audience.
195
Further, the CSDA is narrowly tailored to its ultimate objective of
combating online prostitution and sex trafficking because law
enforcement would employ their expertise in screening adult or
erotic services ads on classified-ads websites and would only
encourage removal of ads that appear unlawful. The CSDA
would not force website operators to become conservative
screeners who would sacrifice “wide swaths of First Amendment-
protected speech”
196
simply to avoid liability; the burden would be
on law enforcement agencies to properly investigate and screen
potential commercial sex ads. The CSDA does not target so-
called obscene materials on the Internet—an ambiguous
category
197
—but rather is aimed specifically at online sex sales
ads, which are illegal even for adults.
198
In this way, the CSDA
“describes a category of material[,] the production and
distribution of which is not entitled to First Amendment
protection,”
199
and so the amendment is not overly broad.
Additionally, even if the CSDA had a negative effect on
some constitutionally protected speech, and could not stand up
to the highest level of judicial scrutiny, the Supreme Court, in
its First Amendment cases, draws “vital distinctions between
classified-ads websites further this violence, thereby endangering the safety of
countless women and men.
194
See Craigslist Open Letter, supra note 44.
195
People v. Foley, 731 N.E.2d 123, 132 (N.Y. 2000) (stating that the
protection of children is a compelling state justification for N.Y.
PENAL LAW § 235.22).
196
Matt Zimmerman, Beyond “Censored”: What Craigslist’s “Adult Services”
Decision Means for Free Speech, E
LECTRONIC FRONTIER FOUND. (Sept. 8, 2010),
http://www.eff.org/deeplinks/2010/09/craigslist-beyond-censored.
197
Obscene speech is not protected by the First Amendment. See generally
Miller v. California, 413 U.S. 15 (1973). However, the standard for obscenity, laid out
in Miller, is fairly ambiguous, and community-specific. Id. at 24. When Congress tried
to regulate “obscene or indecent” materials on the Internet through section 223 of the
CDA, the Court struck the statute down on the ground of its ambiguity and vagueness.
Reno v. ACLU, 521 U.S. 844, 844 (1997). The adult advertisements on classified-ads
websites likely do not rise to the level of obscene speech.
198
It is true that “[t]he Government cannot ban speech fit for adults simply
because it may fall into the hands of children.” Ashcroft v. Free Speech Coal., 535 U.S.
234, 252 (2002). The CSDA, however, is aimed at speech that is illegal for children and
adults alike. See supra notes 193-94 and accompanying text.
199
New York v. Ferber, 458 U.S. 747, 765 (1982) (holding that New York
Penal Law section 263.15, “Promoting a sexual performance by a child,” passes First
Amendment scrutiny).
2012] POLICING THE VIRTUAL RED LIGHT DISTRICT 857
words and deeds, between ideas and conduct.”
200
On this
foundation, the government enjoys greater latitude in regulating
conduct, rather than “pure speech.”
201
The government may
“proscribe advocacy of . . . law violation . . . where such advocacy
is directed to inciting or producing imminent lawless action and
is likely to incite or produce such action.”
202
The CSDA proscribes the advocacy of prostitution and
sex trafficking—forms of conduct, not pure speech. Many of the
commercial sex advertisements on classified-ads websites lead
to immediate lawless action and thus are not entitled to
constitutional protection. As one law enforcement official noted,
prostitutes and facilitators alike are using the “Internet ‘in real
time’ to drum up customers,” telling potential customers that
“‘[t]he girls are here right now, come quick.’”
203
During one CNN
investigation in which a reporter posted a suggestive
advertisement on the Craigslist “Adult Services” section, the
reporter subsequently received fifteen calls from interested men
within three hours of posting the ad.
204
In a significant number of
advertisements in the adult or erotic services sections on
classified-ads websites, the third-party posters extend an
immediate invitation to engage in unlawful sexual activity,
205
and
“[a]n invitation or enticement is distinguishable from pure
speech.”
206
For this reason, the CSDA should be subject to a lesser
200
Ashcroft, 535 U.S. at 253.
201
Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973). Thus, a “statute is
subjected to less scrutiny where the behavior sought to be prohibited moves from ‘pure
speech’ toward conduct.” People v. Foley, 731 N.E.2d 123, 128 (N.Y. 2000) (citing
Broadrick, 413 U.S. at 615).
202
Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). As two legal scholars
recently suggested, “the balance that the Court struck in Brandenburg between
protecting speech and protecting society against the commission of unlawful acts is
appropriate for internet communication.” Lynn Adelman & Jon Deitrich, Extremist
Speech and the Internet: The Continuing Importance of Brandenburg, 4 H
ARV. L. &
POL’Y REV. 361, 363 (2010).
203
Trish Crawford, Recession Means Tough Times for Sex Workers,
THESTAR.COM (June 7, 2009), http://www.thestar.com/living/article/646871--recession-
means-tough-times-for-sex-workers.
204
Lyon, supra note 4. Tellingly, all of the men who called identified
themselves as “John,” a common name for a consumer of prostitution. Id.
205
See, e.g., Post 4919418Maxine, CLASSIFIEDADS.COM, http://adult.classifiedads.com/
erotic_services-ad4919418.htm (last visited Oct. 14, 2011); Post by BRANDY,
C
LASSIFIEDADS.COM, http://adult.classifiedads.com/erotic_services-ad6169506.htm (last
visited Oct. 5, 2011); Post by Smiltholady, C
LASSIFIEDADS.COM, http://adult.classifiedads.com/
erotic_services-ad6097327.htm (last visited Oct. 5, 2011).
206
Foley, 731 N.E.2d at 129 (“[T]erms such as ‘procure’ or ‘solicit’ used to
define the advancement of prostitution ([N.Y.] Penal Law § 230.15) . . . describe acts of
communication; they do not describe the content of one’s views.”); see also United
States v. Hornaday, 392 F.3d 1306, 1311 (11th Cir. 2004) (“Speech attempting to
arrange the sexual abuse of children is no more constitutionally protected than speech
858 BROOKLYN LAW REVIEW [Vol. 77:2
standard of scrutiny than statutes aimed at limiting pure speech,
and thus, should withstand First Amendment challenges.
CONCLUSION
The Commercial Sex Distribution Amendment would be
an effective tool in the fight against online prostitution and sex
trafficking. Both forms of illegal sex sales have been enormously
transformed by the Internet, and are now more widely available
than ever before. Currently, facilitators and prostitutes are free
to create anonymous advertisements on classified-ads websites
in which sex is offered in exchange for money, and the classified-
ads websites enjoy complete legal immunity for such content
under section 230 of the Communications Decency Act.
207
With
such immunity, law enforcement agencies have been unable to
stem online sex sales at the point where it would be most
effective—the point of distribution.
208
Although courts have declined to distinguish between
publisher liability and distributor liability for websites that
knowingly distribute tortious content created by third parties,
209
section 230 only explicitly immunizes interactive computer services
from publisher liability, and stays silent on distributor liability.
210
Therefore, room remains for the imposition of distributor liability
on websites that knowingly host illegal commercial sex
advertisements and that is where the CSDA applies.
With the CSDA, plaintiffs would no longer have to use
increasingly weak litigation tactics to circumvent section 230.
211
Instead, plaintiffs, including law enforcement officials like Sheriff
Dart, will have recourse in the statute itself with the CSDA. Armed
with the proposed amendment, law enforcement agencies could
more effectively combat online prostitution and sex trafficking, by
attempting to arrange any other type of crime.”); Podracky v. Commonwealth, 662
S.E.2d 81, 84 (Va. 2008) (“[N]ot all words are entitled to the protection of the First
Amendment, and the weight of authorities in Virginia and elsewhere clearly permit the
state to prohibit the solicitation of a crime.”).
207
See supra Parts II, III.
208
Given the end-to-end design of the Internet, regulating individual users is
arguably an inefficient method of regulation. As various legal scholars have argued,
targeting Internet intermediaries, such as interactive computer services, is an
economically and socially efficient regulatory strategy. See, e.g., Doug Lichtman & Eric
Posner, Holding Internet Service Providers Accountable, 14 S
UP. CT. ECON. REV. 221
(2006).
209
See supra notes 158-59 and accompanying text.
210
47 U.S.C. § 230(c) (2006).
211
See supra Part III (discussing the Estoppel, Grokster, Roommates.com, and
Default-Injunction litigation tactics).
2012] POLICING THE VIRTUAL RED LIGHT DISTRICT 859
focusing on the mass distributors of illegal advertisements, rather
than the individual, anonymous posters. Law enforcement agencies
could police the virtual Red Light District.
Certainly, legitimate free-speech concerns have the
potential to exist with the CSDA.
212
However, the immediate
accessibility of sex for money removes online sex sales
advertisements from the realm of pure speech, into the area of
conduct.
213
For this reason, the CSDA should be subject to a
lesser standard of judicial scrutiny under which the amendment
would stand up to First Amendment challenges. Due to the
social harms produced by online prostitution and sex
trafficking,
214
as well as the fact that both are illegal, the
reduction of online sex sales constitutes a compelling
justification, and the CSDA is the tool that can aid in that
diminishment. With this tool, women and children will hopefully
avoid “experiences of victimization, poverty, and abuse” that
have become so prevalent through Internet sex sales.
215
Abby R. Perer
†
212
See supra Part V.
213
See supra notes 200-06 and accompanying text.
214
See supra note 151 and accompanying text.
215
Malika Saada Saar, Girl Slavery in America, HUFFINGTON POST (Apr. 20, 2010),
http://www.huffingtonpost.com/malika-saada-saar/girl-slavery-in-america_b_544978.html.
†
J.D. Candidate, Brooklyn Law School, 2012; B.A., Hamilton College, 2009.
I would like to thank the editors and the staff of the Brooklyn Law Review for their
dedication and hard work throughout this process. I would also like to thank Professor
Miriam Baer for her feedback and guidance. And thank you to my friends, especially
B.E.D., for always being my support network. Finally, to my family, you are my
motivation, my reason, and my heart—I love you.
