FOSTA-SESTA Isn’t Just an Attack on Sex Workers. It’s Also an Attack on Free Speech.
Despite the partisan paralysis of the U.S. Congress on most issues, “think of the children” is always a reliable standby to bring lawmakers together. And so it was that FOSTA, the Allow States and Victims to Fight Online Sex Trafficking Act (H.R. 1865) passed the House of Representatives last week. The law would hold Internet platforms criminally liable for the content of their users that promotes or facilitates prostitution, and allow any person injured by a violation to bring a civil lawsuit against such platforms.
FOSTA’s companion Bill in the Senate, SESTA or the Stop Enabling Sex Traffickers Act (S. 1693), is expected to come up for a floor vote on March 12, and is drawn a little more narrowly, although we can expect the two bills to converge. So while SESTA is limited to “sex trafficking of children; or sex trafficking by force, threats of force, fraud, or coercion,” and FOSTA makes similar references to “sexual exploitation of children” and “trafficking of children”, its operative provisions cover sex work conducted between consenting adults. This is a morals law, not a child protection law.
Backpage.com was the focus of attention of those who lobbied for the introduction of FOSTA-SESTA (as the companion bills can be called), but other large online platforms such as Tumblr, Twitter, and SnapChat, and smaller ones like Fetlife, are also used by sex workers and also face criminal liability. Many of these sex workers are not trafficked in any meaningful sense, due to the ability of these platforms to flatten out the intermediary layer that a pimp may otherwise occupy. But it’s the value added by the platforms that flattens away that layer — and if they allow sex workers to continue to use their platforms, that could make them liable under FOSTA-SESTA for promoting or facilitating prostitution.
The intended and likely outcome of FOSTA-SESTA of course is that the platforms won’t continue to allow that. They will censor the accounts of sex workers, and this will then become the new normal in the United States; our nation will have decided that street pimps can be trusted to take better care of sex workers than they can be trusted to take care of themselves. Some of the sex workers who remain in business will be those who successfully move their services to websites based in other countries. Then the next big platform for sexworkers will become like the Pirate Bay of sex, subject to continual U.S. diplomatic pressure, and pretty soon we will be talking about blocking websites again.
But it’s not just sex workers who’ll suffer from FOSTA-SESTA. Anyone who uses online dating will see American dating apps and websites either shutting down and moving overseas, or at least looking a lot more carefully at what their members are doing. Kinky people are especially likely to be come under additional scrutiny. Mention of any kinks or fetishes such as BDSM that may be seen as indicative of prostitution or sex trafficking could be banned, possibly through automated keyword filtering.
Even before FOSTA-SESTA arrived, private censorship of this sort of sexual speech was already a problem. Through the informal power of the payment services industry, the kink community website Fetlife.com was forced to censor discussions of edgy kinks and fetishes last year. Facebook’s aggressive censorship of sexual speech has also disproportionately targeted women, LGBT communities and even sexual health groups.
What’s will be different after FOSTA-SESTA is that the censorship of sexual speech will be no longer so “voluntary” as it was before. Censorship made by private platforms under threat of secondary liability is effectively the same as censorship by the government. Speech that is illegal to host is speech that it is illegal to possess, and making it illegal to possess this speech is censoring it.
Certainly, there are limits to permissible sexual speech online; grooming for example is a kind of speech that is already illegal, but fiction and fantasy, for example currently are not. But the more sexual speech we censor, the harder it may become to hold this line. A ban on pornography of all kinds is being seriously discussed in the New York Times, while in the UK such a ban is about to come into effect for those under 18.
With FOSTA-SESTA’s censorship of speech about prostitution — including sex workers’ reviews of dangerous clients — the new line between lawful and unlawful speech about sex is beginning to shift, and in a direction that places sex workers at risk. The prospect that the borders of permissible speech about sex will continue to be rewritten over the next few years is closer than we might think.
The good news is that it’s not too late to stop FOSTA-SESTA, if enough citizens rise up against it. If you would like to stand up for sex workers, a free and open Internet, and freedom of expression, you can write to your representatives by visiting stopsesta.org, a coalition website supported by the Electronic Frontier Foundation and seventeen other civil liberties and sexual rights groups.