Killing the Messenger: The Campaign Against Online Escort Advertising Sites Part II – Operational Policies & Legal Issues

December 5, 2011

In Part I of the Killing the Messenger blog post, we addressed the latest headlines highlighting the plight of online escort directories, specifically including the story of Craigslist.org, Backpage.com, and Escorts.com.   We now turn to an overview of the legal issues associated with such attention-grabbing stories and attempt to identify preventative measures to be considered by those associated with the online escort directory business model.

One of the unanswered questions resulting from the epidemic of law enforcement activity against online escort directories is whether the mere acceptance of advertising revenue from escort-related activity is against the law?  Does some state or federal statute prohibit this business model, or is this a large ‘bluff’ by those seeking to censor disfavored speech?  Indisputably, prostitution is against the law throughout the United States except for small portions of Nevada, where legal brothels are allowed to exist.  Virtually all states prohibit not only the act of sex for hire, but many related offenses such as deriving proceeds from prostitution, renting a space for purposes of prostitution, and facilitating (or aiding and abetting) the act of prostitution.[1]  At the federal level, earning money from prostitution that involves some element of interstate commerce (such as website operation) can allegedly violate the Travel Act and money laundering laws[2], as seen in the Escorts.com case.  However, not all escort directory websites are equally vulnerable to prosecution under these laws, as discussed below.  Paying close attention to certain relatively common business practices and developing reasonable advertising review policies can make a significant difference in the degree of risk associated with operation of an online escort site.

Escorts, although engaging in presumptively lawful companionship activity, awkwardly fall within what has become known as the “sex worker” occupation.  While those in the adult industry recognize that these companionship providers do not equate their services with sex, their business is erotic and adult-themed entertainment.  Nudity may or may not be involved, although stripping in the privacy of a home or hotel room is typically not against the law,[3] and does not constitute prostitution.  However, the association with the ‘sex worker’ category is often perceived by mainstream society as having some type of involvement with actual sexual intercourse, or some other form of sexual activity.  Until this perception is corrected, escorts will continue to fight being unfairly, and automatically branded as prostitutes by those not familiar with the nuances of the profession.[4]

Federal conspiracy, solicitation and money laundering statutes certainly don’t help an escort site’s plight.  The epitome of broad and vague statutory language; these laws expose even the most tangentially involved individual/entity to potential legal liability.

Under classic criminal conspiracy, the government need only prove (1) an agreement to engage in criminal activity, (2) one or more overt acts to execute the agreement, and (3) intent to commit the substantive crime.  The language of the conspiracy statute cited as grounds for Count I against Escorts.com defined the alleged conspiracy as two or more persons conspiring to commit an offense “in any manner or for any purpose” – you can’t get much more general than that.

As seen in the Escorts.com case, the breadth of the solicitation and money laundering laws may be even more alarming.  Looking at the plea agreement, the only admissions of fact were that:

1)      the website allowed escorts to post advertisements pertaining to their services,

2)      the company owning/operating the website received revenue from the escort’s ads and subscriptions from users paying to view such ads,

3)      the site’s users were allowed to post reviews, and,

4)      “some” of the escorts advertising on the site engaged in prostitution at some point during the advertiser’s association with the site.

A significant factor in the Escorts.com case appears to be the ability of users to post reviews directly on the site.  While the significance of this feature may not be readily apparent to those outside this particular niche, the existence of ‘free form’ user reviews, where customers of the advertisers can post comments and feedback pertaining to their ‘experiences’ with the escorts, can significantly impact the level of knowledge imputed to the escort directory operators.  For example, if a user posts that he or she engaged in illegal sexual activity with a provider (whether true or not) this is something that the government might use to demonstrate actual or constructive knowledge of illegal activity by the website operators.  The element of “knowledge” would be key in any criminal prosecution brought against an online escort site.  Absent some level of knowledge that escorts were ‘crossing the line’ into prohibited conduct, an escort directory should be treated the same as any other online advertising venue for a presumptively legal service.  Only when the site operators learn that their advertisers are engaging in such illegal activity, should the concept of criminal liability even be considered.[5]

With the foregoing in mind, what are the danger zones when it comes to “knowledge” that can be associated with criminal culpability?  The answer to that question can only truly be provided by an experienced attorney that is familiar with the specifics of any particular escort site’s business model and operating policies.  But the following issues should be considered when evaluating potential legal exposure associated with an online escort directory:

1.  User Reviews: As noted above, any sort of free form reviews incorporated into an escort’s advertising space can be dangerous.  Initially, the potential for bogus or fraudulent reviews exists, which could confuse readers and provide prosecutors with plenty of evidentiary fodder, even if the information is not truthful.  Moreover, if a user submits an accurate review that includes references to an escort engaging in sex for money, the government would argue that such a review should impute some degree of guilty knowledge on the escort site operator.  Counter-arguments exist, of course, but allowing user reviews to be placed directly on an online escort’s ad is a practice that should be carefully evaluated, if it is permitted at all.

2.  Age Verification: Escort activities are for adults only.  Law enforcement is particularly concerned about exploitation of minors by online escort directories.  Therefore, use of some age verification device for advertisers is essential.  While all escorts may not be willing to provide government-issued ID’s prior to placing an ad, criteria can be developed so that young (or young-looking) advertisers are required to engage in a higher level of age verification than older advertisers.  A wise mixture of online age verification devices,[6] database searches,[7] and ID checks can be important to reduce the legal risks associated with online escort directories,

3.  Ad Approval:

3.a.  To Review, or Not to Review?  Should escort ads be reviewed and approved by the site operator before publication, after publication, or not at all?  That is a difficult decision that will need to be made after consideration of the interplay of three federal statutes; 47 U.S.C. §230 (“Section 230”), 17 U.S.C. §512 (“the DMCA”), and 18 U.S.C. §2257 (Section 2257).  We call it; the “Trifecta.” These statutes provide potential immunity, safe harbor and records-keeping compliance exemptions (respectively), for certain online service providers, assuming the business operation is set up properly.  While advance review of images and text might be the natural inclination for the diligent webmaster trying to prevent the publication of improper (or illegal) material, such actions could adversely impact the protections afforded to online service providers by federal law.  For example, selecting which images are acceptable for publication in an ad could make the site a ‘producer’ under Section 2257, and thus responsible for keeping records associated with any sexually explicit depictions.  However, failure to review material before publication could result in underage images or other inappropriate material appearing on the site for at least some period of time, thus triggering other legal concerns. Similar concerns apply to the text of the proposed ads. Reviewing ad text is important to identify any advertisers who intend to offer illegal services.  Different policies can be developed for review of images as compared to text, so all options should be explored with counsel.

3.b.  Approval Criteria.  Assuming that some level of pre-publication review occurs, what criteria should be used?  This is where the ‘rubber meets the road’ for escort directories and their lawyers. Development of a viable set of publication standards is critical for risk mitigation purposes.  Obviously, any ad that states or suggests willingness to trade sex for money should automatically be rejected.  But numerous questions arise concerning where to draw the line in such circumstances.  What if the suggestion is made using little-known slang terms, or is the subject of a subtle hint as opposed to an outright proposal?  The vernacular of the escort industry is constantly changing, so keeping up with a list of ‘banned terms’ can be a full time job.  If the ad is rejected, should the advertiser be permanently banned, as someone willing to engage in illegal activity, or should the advertiser be offered another opportunity to submit a legally-compliant ad?  If the advertiser is banned, what precautions should be implemented to ensure that he or she does not sign up using different contact information, or a different name?  Should the law of the location where the proposed services will be rendered be taken into consideration, or only the law where the escort directory operates?  The answers to all these questions are by no means clear, and much depends on the risk tolerance of the website operator.  But generally, the more efforts that are used to weed out escorts who demonstrate a desire to violate the law, the safer the site will be.

3.c.  Vouching.  What about user or advertiser ‘verification’ or ‘vouching’ services?  The Internet has allowed individuals to obtain feedback about potential customers and service providers in all industries, and escorts are no exception.  Customers can make sure that the thin blonde in the ad is really a thin blonde, while escorts can make sure a potential customer is not violent, deceptive or incompatible.  These are all positive developments for both parties, but implementing a verification procedure increases certain risks for the site providing such services.  Any failure of the system might be blamed on the site operator.   This is where online terms of service and disclaimers are essential. Again, one’s risk tolerance must be considered when verification or vouching services are offered.

As referenced above, it is imperative for escort sites to realize the subtle “red flags” when it comes to escort advertisements.  This is a more difficult job than identifying prohibited images.  A visual image that crosses the line, so to speak, is relatively easy to notice even in a stack of digital ads.  Finding one little word that might violate a site’s publishing standards, on the other hand, is completely different and can be extremely arduous.  Detection of unlawful terminology is often considered so important to the legal health of an escort site, some operators have taken to publicizing “banned terms” list as a guideline for their advertisers and have gone so far to generate an even more comprehensive internal list of flagged terms as an added precaution.  Decisions as to what terms to include in public and/or internal lists are difficult, but reasonable policies can be developed and implemented.

Although ignorance is bliss, the law often doesn’t see it that way.  Defending prostitution or money laundering charges with an “I didn’t know” argument may, in fact, be the truth, but it’s not likely to get you very far with an aggressive prosecutor.  Even though escort services are presumptively legal, escort directory sites should implement reasonable precautions to identify those escorts with a proclivity to violate the law; preferably before an ad is published.

The preventative measures discussed above are far from comprehensive and have only scratched the surface of online escort directory safeguards.  If nothing else is taken away from this post, understand that operating an escort website is not to be undertaken lightly.  Even if you are able to distinguish your current business model from that of sites like Escorts.com or the former adult services category of Craigslist.org, the law in this area remains murky, and concepts of conspiracy, intent, and facilitation are inherently vague.  Nonetheless, these legal concepts are routinely applied to prosecute individuals having only tangential association with criminal activity.  Given the focus on escort classified sites by state and federal authorities in recent years, a comprehensive risk mitigation strategy should be developed for any existing or new operations in this field.

All statements made in the above article are matters of opinion only, and should not be considered legal advice. Please consult your own attorney on specific legal matters. You can reach Lawrence Walters at [email protected] or www.FirstAmendment.com.