(Upon the passage of the law, I was asked by the Red Umbrella Project to draft an organizational statement.)
In the current thrall, it’s a challenge to keep track of every erosion of our rights and protections being pursued, with mixed success, by the reactionaries holding our politics hostage. You may have missed that two bills were recently signed into law: the House bill called FOSTA (“Fight Online Sex Trafficking Act”) and the Senate bill SESTA (Stop Enabling Sex-Trafficking Act). While anti-sex trafficking advocates have declared their passage as a victory for victims, sex workers have already been impacted in ways that bode poorly for all adult consensual communication and online usage.
SESTA/FOSTA carve out overly broad exceptions to the longstanding “safe harbor” rule of the internet. From Section 230 of the 1996 Communications Decency Act:
“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
Countering this principle, SESTA/FOSTA makes online platforms responsible if third parties are found to be posting ads for (consensual, adult) prostitution. The goal is to provide law enforcement the ability to prosecute trafficking rings. We’ve already seen various platforms (i.e. craigslist personals) shut down because the providers are wary overzealous SESTA/FOSTA enforcement.
The law doesn’t appear to do anything concrete to target illegal sex trafficking directly, and instead threatens to impact the safety and security of consensual sex workers and their relationships while making it easier to censor free speech, especially on smaller platforms.
For many years, Backpage’s adult advertising section was a forum for sex workers. Previous lawsuits–the most recent in 2016–aimed at Backpage have been dismissed on the basis of Section 230’s dictum that host sites aren’t liable for content posted by their users. That said, its adult section was shut down last year; the Senate’s investigating committee cited the provider’s willingness to “edit the text of adult ads to conceal the true nature of the underlying transaction.” This spring, ahead of the passage of SESTA/FOSTA, the FBI seized Backpage and arrested its founder.
In 2015, after 20 years of operation, Rentboy, the largest site for male sex workers, with global reach, was shut down for enabling prostitution. Its founder, Jeffrey Hurant, and six employees were arrested during a raid of their offices. Charges against the employees were eventually dropped, but Hurant was convicted and sentenced to six months in federal prison.
FOSTA and SESTA were created last year specifically in response to Backpage’s citing Section 230 protections. The laws seek to ensure that lawsuits like the one dismissed in 2016 could move forward.
“Since their invention, online forums for advertisements and community-building have been essential to sex-worker survival,” says Liz Afton, our sister at the Sex Workers Project, an initiative of Urban Justice Center. “The bill strips away their access to online platforms that allow them to post advertisements for employment opportunities, build community with other sex workers, and share safety materials such as Bad Date lists—a life-saving resource that alerts other sex workers to predatory individuals so they can avoid dangerous interactions.”
The bill’s supporters (among them, Congresswoman Carolyn Maloney, representing NY-12 ) have claimed SESTA/FOSTA will allow police to prosecute traffickers and sex trafficking survivors to sue web hosts for facilitating their victimization. This claim fails to acknowledge the documented reality that the internet has madeit easier for consensual adult sex workers to do their work safely and independently. These laws represent the most egregious conflation of sex work and trafficking to date. It has the potential to criminalize friends, family members, and supporters of (consensual, adult) sex workers.
This new US law is not the first time the conflation of consensual sex work and trafficking has been codified. In 2014, the United Nations published an Issue Paper asserting:
“The Trafficking in Persons Protocol statement is clear: consent is always irrelevant to determining whether the crime of human trafficking has occurred.”
A coalition of sex workers, advocates, and sex trafficking survivors agree that SESTA/FOSTA is not effective in deterring sex trafficking, and potentially criminalizes adult communications. Even the US Department of Justice has issued a statement saying that the laws raise “serious constitutional concerns.”
The bills penalizes platforms that “promote or facilitate prostitution,” and allows authorities to pursue platforms for “knowingly assisting, facilitating, or supporting sex trafficking.” This overly broad language could implicate sex worker advocacy organizations (like us), legal sex workers, and sex-work adjacent content. It could even implicate partners, friends, and allies of individual sex workers. If all sex workers are trafficked, anyone who “facilitates” a sex worker earning a living is potentially criminalized as a trafficker.
SESTA/FOSTA initially sought to create enforceable loopholes to Section 230 for websites facilitating prostitution. By the time the bills were voted on, those provisions were far broader and more punitive. The Electronic Frontier Foundation has called SESTA/FOSTA “a bad bill that turned into a worse bill and then was rushed through votes in both houses of Congress.” A coalition of free including the nonprofit TechFreedom issued a statement calling the combined law “unworkable.” The organization concluded: “The best of intentions won’t stop SESTA from harming those it aims to protect.” Lacking Section 230 protections, online platforms have already curtailed speech and in some cases shut down, under the threat of costly lawsuits.
SESTA/FOSTA should be challenged on the basis constitutional grounds, but real harm will come to vulnerable members of our community–particularly women, people of color, and LGBT people–in the meantime. This terrible legislation is a culmination of the longstanding conflation of sex trafficking with consensual adult sex work we have seen overwhelm our narratives in the last decade. Now that this long-standing conflation has been enacted into law, we must draw a clear distinction between sex trafficking perpetrators and adult consensual sex workers and their allies by decriminalizing adult consensual sex work and focusing prosecution on actual sex traffickers.