Legal Research

Re Censoring Craiglist

By John Gregory

A member of the ULC-ECOMM email list pointed us to a post on the blog Apophenia about Craigslist’s decision to censor its ‘erotic services’ category in the United States. (News stories here tell us that the RCMP and a zealous Toronto city councillor are also pressing Craigslist to do the same for its Canadian equivalent.)

See “How Censoring Craigslist Helps Pimps, Child Traffickers, and Other Abusive Scumbags,” by danah boyd, a fellow at the Berkman Center, a post the list member describes as “at the intersection of censorship, transparency, moral outrage, and harm reduction.” One line in the post particularly caught his attention and raised a concern in his mind about privacy:

Craigslist is not a pimp, but a public perch from which law enforcement can watch without being seen

I have two questions (and my usual number of answers, i.e. none) provoked by the blog entry he refers to:

1. Is there a risk, or is it demonstrable one way or the other, that increasing opportunities for advertising an activity will increase the level of the activity itself? Ms. Boyd’s argument is that prostitution and its concomitant abuse of women is going on in any event, and having it openly advertised makes it easier to recognize it, find and help its victims, and enforce the laws against it. The reason for banning it is that politicians (think they) can win votes by making distasteful things disappear, rather than that banning the advertising will affect the prevalence of the phenomenon. But if it were clear, or even probable, that reducing the advertising shrinks the market and thus the level of activity, then the ban has some positive impact and might be more defensible (subject to arguments about the responsibility of intermediaries).
2. In response to the list member’s concern about privacy, is it not true that whatever restrictions are appropriate for law enforcement agencies’ access to personal information online will remain in place, whether or not advertising of one particular kind of undesirable activity is banned? So having the ads out there, rather than suppressed, does not increase the vulnerability of our privacy interests. The police still need whatever authority they need in the absence of advertising (which may not be much, according to some Canadian cases… but all is not yet lost. And banning or not banning does not affect the risks). And let’s face it, we are talking about advertising. How reasonable an expectation of privacy can one have in information that one puts online as an advertisement? If one is advertising an illicit activity, should the law ever protect one’s privacy interests in doing so?

Full post as published by Slaw.ca on September 08, 2010 (boomark / email).