Craigslist took down its “Adult Services” section at the end of August, replacing it with the word “Censored.” It did so without fanfare — and still no explanation. But the small change marked a big capitulation to a gaggle of state attorneys general and anti-child trafficking groups who have been hounding the free classifieds listing service for years, accusing Craigslist of being an online pimp.

Craigslist’s complete retreat was from a compromise position it agreed two years ago with same said attorneys general — a few with political ambitions. Despite — or perhaps because of — Craigslist’s unconditional surrender, this group is amping up its assault on the twelve-year old law that has allowed the net to flourish. And now Congress is getting into the righteousness with a hearing during which two representatives from Craigslist will face public flogging from politicians in the midst of an election season.

While we can expect this kind of showboating and moral grandstanding from politicians, the reason they’ve gotten this far has everything to do with companies like Google, Yahoo, Yelp and Facebook standing on the sidelines, silently allowing Craigslist to be pilloried out of fear they’ll be tainted as supporting prostitution and child sex-trafficking if they stood up for an open internet.

The hearing, which can be seen live here, is a set-up. There are two panels of witnesses — the first are five current and former members of Congress, who will undoubtedly use their time in front of cameras to make it clear how tough on prostitution and Craigslist they are. They’ll be followed by a panel with a range of witnesses, from law enforcement and anti-child trafficking groups, along with a representative from Craigslist and one of its lawyers.

It’s not hard to know what this show is going to be all about.

Oddly, no one argues that Craigslist hasn’t gone far beyond what the law requires of it. And by law, I mean the law that makes it possible for sites to have comment sections, that lets social networking sites exist and that lets you read reviews of restaurants and products.

And that law — Section 230 of the Communications Decency Act — is now in danger.

In late 2008 Craigslist required, at the behest of the attorneys general, that posters to the Adult Services section use a credit card, which would make it easier to track down illegal activity. They hired a full-time attorney to screen the ads for pornographic images and terms that seemed to indicate that minors were involved (700,000 were rejected last year), and it partnered with the National Center for Missing and Exploited Children.

That wasn’t enough, and even taking down the section isn’t enough to stop the assault on the open internet.

That’s not hyperbole. Here’s what the Center for Democracy and Technology, the most mainstream and well-respected digital rights group in the country, has to say about Wednesday’s hearing.

“Congress took strong action to insulate online intermediaries from liability for user-generated content in the Telecommunications Act of 1996. It is precisely these protections — known as Section 230 — that led to the dramatic growth of social networking and made the United States the engine of Internet innovation and free expression it is today,” the organization’s president Leslie Harris wrote. “We urge this Subcommittee to exercise great caution before it considers any action that would narrow this important legal framework.”

Harris is referring to Section 230 of the Communications Decency Act which indemnifies electronic service providers from responsibility for the actions of its users, a 10-year-old law that’s been vital to the internet’s growth, especially what we dub as Web 2.0.

For example, WordPress, Yelp, Google Groups, Blogger, Twitter, Facebook, Topix, Yahoo, The New York Times and Wired.com are all protected under this law. Blogger isn’t responsible for any libel posted on a blog it hosts; Twitter isn’t responsible for someone using it to sell drugs; Facebook isn’t responsible if a user posts an infringing photo; review sites like Yelp aren’t held liable if a user posts a libelous review, and no news site is legally responsible for what a commenter says. Instead, in each case, the person who wrote or posted is legally responsible and can be sued or charged criminally.

The logic is clear: if an electronic service bore responsibility for the postings of its users, there would be no online discussion forums, no reviews on Amazon.com, no feedback on eBay, no blog hosting services, no user comments on news stories, and no Wikipedia, Twitter or Facebook.

The most recent assault on Craigslist for allowing thinly veiled ads for prostitution and for legal “adult services” has been led by Connecticut Attorney General Richard Blumenthal, caught in a tight race for the U.S. Senate.

Wired.com asked his office what it is that he actually thinks Craigslist has done to violate the law and how he would re-work CDA 230.

“Websites that falsely promise to enforce their terms of service may violate Connecticut consumer protection laws,” Blumenthal said in a written statement to Wired.com, a far cry from being an online pimp.

As for the protections of the CDA, he thinks they ought to be undone.

“I support changes clarifying and strengthening the law to hold websites accountable when they knowingly enable or promote illegal activity,” Blumenthal said. “Present law is outdated and needs revision.”

What’s Blumenthal’s vision?

Well, after Craigslist took down the adult services section, his office discovered — as Craigslist had warned — that adult services ads were beginning to show up in sections of the site that are free, such as the personals.

Blumenthal told Craigslist it needed to start manually checking all ads in the personal section.

“Not only does technology enable Craigslist to easily screen for ads that promote prostitution but a simple manual review of ads in the personals section of Craigslist can readily detect illegal activity and other postings that violate its terms of service,” Blumenthal wrote, in a September 7 letter to Craigslist (Emphasis added).

And when people start posting those ads in the “bikes for sale” section, his office will undoubtedly say Craigslist needs to manually screen all ads, a requirement that would destroy Craigslist.

There’s an irony here, of course, since Blumenthal’s campaign pushes its supporters heavily to follow him on Facebook, Twitter and Flickr, all services that would be destroyed by his election-year pronouncements and his vision for an edited internet.

He’s not alone. Massachusetts’ Attorney General Martha Coakley, who ran for the U.S. Senate earlier this year, said at the time, she wants the law changed, says she’s got support from Sen. John Kerry, and if elected, she would hold hearings about changing the law.

How did it get this far?

Mostly it’s because Craigslist fought a lonely fight. South Carolina’s attorney general Henry McMaster threatened to bring criminal charges against the company, and Craigslist had to go to court to get a federal injunction against McMaster. The attorneys general have been ganging up on Craigslist for years, despite knowing they didn’t have a legal leg to stand on.

Meanwhile, the rest of the net largely remained quiet. The net’s giants did not get together and issue a press release or a media campaign telling the attorneys general to back off, that the CDA was on Craigslist’s side.

No company wanted to look like it was supporting prostitution or child-trafficking.

Instead, Craigslist was left to fight the attorneys general on its own, and two weeks ago, in an odd late night move on the brink of a holiday weekend, the company shut the “Adult Services” category down. Over the weekend, Craigslist’s PR persons promised Wired.com a statement or a blog post, and then fell silent — not responding to e-mails.

It seems Craigslist just got tired of fighting alone.

Craigslist bravely tried to weather the storm on its own. It pointed out that it had a full-time attorney approving every “Adult Services” ad and rejected more than 700,000 last year. Craigslist was accused of profiting from the ads, even though the site began requiring a credit card to place such ads at the behest of the same attorneys general that then accused the site of trying to make money from prostitution. That should have made it simpler to run stings.

As for Craigslist wanting to profit from these pages, they tried to give the money away, only to have it thrown back in their faces. Painting Craigslist as greedy is laughable to anyone in Silicon Valley. For years the Valley has slapped its forehead at all the money that the company leaves on the table, charging only for housing ads in a few big markets. (An early business partner even forked Craigslist in 1999, taking one of its old names “listfoundation.com” and trying to run a competing service complete with banner ads, only to fail miserably).

It’s not really clear what opponents want. Clearly, there are some adult services that are legal (say a stripper-gram or a bondage session, to name two), and if not given a section on Craigslist, they’ll show up somewhere else on the site, given the sheer volume of posts. And now that the attorneys general got Craigslist to remove the adult services section, Blumenthal is already complaining that the ads are now showing up in the personals section — exactly as critics of the attorneys general approach said they would.

That’s the vision of Blumenthal and those who will grandstand in Congress today — a net that is manually screened. Imagine what that would look like on Facebook or Twitter.

It’s a vision that also doesn’t comport with the real world.

The same ads that Craigslist was pilloried for dominate the back pages of alternative weeklies. The printed Yellow Pages carries ads for “Escort Services.” You can find them in the Village Voice-owned Backpages.com. And beyond the media world, it’s not very hard to find “Massage” parlors in any major U.S. city, where I’d venture to guess, you are more likely to find human-trafficking than you were anywhere on Craigslist.

Maybe even more to the point, driving these ads off Craigslist isn’t going to stop prostitution and is only going to give more power to those who exploit women and children.

That doesn’t matter. Craigslist was the enemy, a stand-in for the internet generally.

And the open internet let the grandstanding, law-ignoring attorneys general and the self-righteous win, even as they likely made the exploitation of women worse and put the innovation of the net at risk.

Simply put, the open internet owes Craigslist a thank-you for fighting as long as it did and an apology for not coming to its aid.

And it’s time for the net start fighting back.

UPDATE: This story was updated to reflect that Martha Coakley was a Senate candidate earlier this year, but is currently running for re-election as Massachusetts’ attorney general.

Follow us for disruptive tech news: Ryan Singel and Epicenter on Twitter.

See Also:

• Craigslist to Explain ‘Adult’ Takedown to Congress
• Censored! Craigslist Adult Services Blocked in U.S.
• Craigslist Adult Ads Under Scrutiny — Again
• Why Craigslist Is Such a Mess

Authors: Ryan Singel

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