Law Times

Law Times • November 24, 2008 Craigslist files 14 lawsuits to stop illegal activity NEWS BY JULIUS MELNITZER For Law Times t isn't all apples and blossoms for Craigslist, the king of on- line classified ads. Although the site has more than 40 million users monthly in the U.S. alone and is valued at $5 billion, its sheer accessibility and popularity have given it a reputation as a magnet for fraud artists, child pornogra- phers, pimps, rapists, hit men, and other assorted undesirables. By way of example, Craigslist was the locus of a slew of apartment sale scams in Hamilton and Calgary this past spring, whereby enterpris- ing fraudsters sought to sell condo- miniums they didn' I Ian Kyer is skeptical about the merits of Craigslist's suits. The RCMP followed with an invitation to Craigslist to collab- orate on a joint site to monitor fraud, but the effort doesn't seem to have gone anywhere. "We've talked to various ISP clients about collaborative efforts with the RCMP, but they haven't heard anything about it," says Ian Kyer of Fasken Martineau Dumoulin LLP's Toronto office. "If anything's going on, it's be- low the radar at this point." What's decidedly not below the radar is the joint statement issued by Craigslist, 40 state at- torneys general, and the National Center for Missing and Exploited Children regarding a collaborative effort to protect Craigslist's online communities and classified ads from being used as vehicles for child exploitation, human traf- ficking, and other illegal activities. For some years, Craigslist it- self has been the subject of gov- ernmental lawsuits trying to get the monster site to take responsi- bility for stamping out illegality. "Law enforcement authorities, however, have been hampered by t own. U.S. appeal courts who have treat- ed Craigslist as an ISP that is a mere conduit for content and therefore shielded from liability under U.S. statutes," says Martin Kratz of Ben- nett Jones LLP's Calgary office. Still, enforcement authorities site's security measures, and their sole argument against these defen- dants is that they must be guilty of copyright infringement because that's the only way in which they could have devised the tools they sell," he says. "That's a pretty thin basis on which to hang these lawsuits." In any event, Craigslist has than telephone companies or cable companies or utilities. What most have done is say that they will dis- close user information in response to lawful authority, like a warrant." Still, affected ISPs and sites have continued to pressure Craig- slist. "The joint announcement is the result of negotiations in which the government has asked Craigslist at least help put a stop to the illegal activity if it wasn't going to accept responsibility for the content," Kyer says. The centrepiece of the an- nouncement is Craigslist's decision to file 14 lawsuits and issue nu- merous cease and desist demands against businesses which provide software and other services that un- dermine the site's terms of use and circumvent its technical defences. Craigslist will also provide informa- tion to law enforcement authorities for prosecuting those facilitating or engaging in criminal activity. But Kyer is skeptical about the merits of Craigslist's suits. "Craigslist isn't suing the peo- ple doing the postings," he says. "They're going after the people who provide the tools to circumvent the promised to continue refining its own tools for enforcing its terms of use. These include protocols for blocking inappropriate post- ing and advertisements, a flag- ging system that accompanies ads to allow for easy identification of such content, the creation of the industry standard "PICS" rating system for tagging sexual content, as well as a telephone verification and blacklisting system. Under the agreement, Craig- slist will soon require credit card verification and a small fee for erotic services posting, with net revenue going to charity. Craigslist will report persistent offenders to the police and participate in NC- MEC's CyberTipline program. Meanwhile, in Canada, the Canadian Radio-television and Telecommunications Commis- sion has exempted ISPs from regulation under the new media rules, and a recent Industry Can- ada survey concluded that self- regulation was the best option. "The Canadian Association of everywhere are tightening up their terms of use. Indeed, Craig- slist has gone so far as to include a right to "liquidated damages" in the event of transgressions. "What they're saying is that effectively agreed to become an enforcement authority acting in concert with the police," he says. "And I think we're going to see more and more of that." LT Marketplace they'll impose a fine on users or posters in response to transgres- sions," says David Young of Lang Michener LLP's Toronto office. "I don't know if that would work in Canada, where liquidated damages must be a genuine pre- estimate of damages before the courts will enforce them. Craig- slist's approach sounds more like a penalty or fine to me than a genuine calculation of loss." But, Young says, there's a larger point here. "Quite apart from Craig- slist's ability to collect damages, what's significant is that they've EMPLOYMENT WANTED SERVICES - Available law clerk. Proficient in estates, real estate, litigation, ADR, cor- porate/commercial and labour and employment. Part/full time. Messages (416) 621-2485. A+ IP, TAX, Labour & Other Opportunities at www.smart streetlegal.com. * Confidentiality is our trade-mark * To advertise call 905-841-6481 PAGE 3 Internet Providers has put together a list of best practices and a code of conduct, and most reputable ISPs will follow that," Kratz says. But there are difficulties for ISPs in terms of co-operating with law enforcement authorities. "ISPs are striving for a balance between users' interests and pri- vacy and the need to co-operate with the police," Kratz says. "In that way, ISPs are not different November Specials Practical Guide, The Commercial Lease: A Fourth Edition Harvey M. Haber, Q.C., LSM Assignment, Subletting and Change of Control in a Commercial Lease: A Practical Guide Editor: Harvey M. Haber Q.C. and contributing authors Tenant's Rights and Remedies in a Commercial Lease: A Practical Guide Editor: Harvey M. Haber, Q.C. and contributing authors Editor: Harvey M. Haber, Q.C. and contributing authors Distress: A Commercial Landlord's Remedy www.lawtimesnews.com LT 1-4x3•Web Discount.indd 1 11/19/08 1:42:44 PM ealogical 1-4_LT_Nov17_08.indd 1 11/11/08 2:59:45 PM

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