The Legislation That Would Harm Sex Workers—In The Name Of Their Own Protection

‘FOSTA will make our lives exponentially more dangerous under the pretense of protecting us.’

In n 2011, New York City law enforcement officials were able to lure a serial rapist to a hotel room and successfully arrest him—all as a result of sex worker efforts. His phone number had circulated through a community of sex workers and escort agencies as part of a “Bad Date List”—jargon for the network sex workers use to pass along information, flag dangerous clients, and share the phone numbers that should never be answered.

Whether they utilize Facebook groups, other online forums, or even text group chats, sex workers’ ability to communicate with one another and screen potential clients is one of the only security mechanisms available to them — and one that will be further compromised, with assuredly fatal consequences, if the supposed anti-trafficking bill, FOSTA, passes the Senate this week.

The Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA)—a companion bill to SESTA, the Stop Enabling Sex Traffickers Act introduced by Ohio senator Rob Portman last April—passed 388–25 by the House of Representatives on February 28th. The bill, introduced by Republican representative Ann Wagner—in theory at least—seeks to fight sex trafficking by targeting online websites and platforms “that unlawfully promote and facilitate prostitution and contribute to sex trafficking.”

The reality, however, according to the bill’s critics, is that the proposed legislation will only hurt consensual sex workers and encourage internet censorship—rather than prevent sex trafficking or support its survivors. Many pro-free speech and sex worker advocacy groups, such as the Center for Democracy and Technology, Electronic Frontier Foundation, and the Sex Workers Outreach Project, all oppose the bill.

Per FOSTA, those who run platforms determined by authorities to be promoting sex trafficking would not only face up to 10 years in prison, but would be liable for lawsuits—both repercussions that effectively encourage platforms to delete any user content that could in any way be construed as promoting sex work.

According to the sources I spoke with for this piece, the main issue with FOSTA is that it conflates all consensual adult sex work with sex trafficking — and many believe that this conflation is not accidental. “They want to get rid of all prostitution and sex work, but this is the oldest profession in the world and it’s not going away,” Allison Bass, the author of Getting Screwed: Sex Workers and the Law and assistant professor of journalism at West Virginia University told me over the phone. “Opposing sex trafficking is as American as apple pie, but this law goes after sex workers who go into the field by choice, and it will make their work more dangerous.”

“I know I’ve only avoided dangerous clients throughout my career because I was able to advertise to my clients online and screen them,” says Savannah Sly, a sex worker and volunteer for the Sex Worker Outreach Project (SWOP).

If platforms and sites, under the threat of legal ramifications, began to police and delete the ads for and posts by sex workers, then research suggests these workers will be forced to move onto the streets, where they will face much greater rates of violence. One 2017 study found that the female homicide rate dropped 17% in various U.S. cities after Craigslist launched an erotic service platform. According to the same study, after myRedbook.com was shut down in 2014, sex workers who relied on the site to find jobs were forced to move to the streets—where they faced much higher incidences of rape and assault.

This law goes after sex workers who go into the field by choice, and it will make their work more dangerous.

As a volunteer for SWOP-Seattle, Sly remembers the chaos that ensued after RedBook was shut down. “Everyone was panicked and scared,” she says:

“They would say things like, ‘I was supposed to post online tonight and I have to pay my rent and now what can I do? Will I have to go to a bar or a hotel or the street?’ When people are pushed into corners, they are going to take higher risks. I’ve been there. When I’ve been financially insecure, I started going back to clients who made me very uncomfortable. FOSTA will make our lives exponentially more dangerous under the pretense of protecting us.”

On the street sex workers are far more likely to encounter violent clients or be exploited by pimps. By cracking down on any and all sex worker ads, then, the platforms targeted by FOSTA would effectively be excising low-risk clients from the client pool — that is, the type of person who wouldn’t mind chatting with a sex worker online, but who wouldn’t be willing or interested in trolling the streets. Online platforms, such as Backpage, enable sex workers to have greater control over their bodies and their safety, allowing them to screen clients, negotiate condom usage, and plan safe meeting locations.

“This is literally life and death,” sex worker Arabelle Raphael tells me.

“I like my job and this how I make a living and survive, and my survival and safety is dependent on online tools. Without these tools, people will force themselves into dangerous situations and be murdered. Sex trafficking is extremely complex [but politicians] do not care about sex trafficking victims—just about eradicating sex workers. If someone gives me a ride to a job or advice on a job, they can be charged with sex trafficking. Even sex trafficking victims themselves are often prosecuted.”

According to Bass, the link between consensual adult sex work and sex trafficking is tenuous at best. When countries such as the Netherlands and New Zealand decriminalized sex work, they reported no increase in the sex trafficking of minors and undocumented immigrants. In fact, not only were sex workers better protected from violence and sexually transmitted diseases, but they were also more likely to cooperate with police to target traffickers—all because they no longer feared legal ramifications or police harassment.

Such a dynamic highlights yet another problematic aspect of FOSTA—that it, and similar laws, can, far from reducing sex trafficking, actually exacerbate it. Platforms like Backpage.com have been known to cooperate with law enforcement by flagging users who appear underage or to be involved with sex trafficking. But if such sites are shut down, sex traffickers will simply move to offshore options: “The bill won’t get rid of sex trafficking, but instead drive it further into the shadows,” Bass confirms. “It will be more difficult for law enforcement to work with these sites and more difficult for these platforms to be subpoenaed.”

In short, the law has entirely failed to examine how trafficking operates—or what type of services could help individuals who are experiencing or at risk for violence. According to Liz Afton, a counselor and advocate at the Sex Workers Project (SWP), there need to be bills that target the root causes of trafficking, such as isolation and marginalization:

“This law is clearly not in the service of actual trafficking survivors. There is no funding for survivor services, or for improving victim screening. People have their whole lives shattered by arrests. Many victims who are trafficked are arrested while they were being trafficked and yet were not recognized as needing assistance, leading to criminal histories that keep them from accessing different labor opportunities in the future and increased vulnerability to predators who could traffick them again.”
This is literally life and death.

Afton worries about how the law will affect organizations like SWP, which could be construed to be promoting sex work—merely for giving sex workers advice on how to stay safe. The people the organization helps are already strained by the impact of a number of intersectional vulnerabilities, including barriers to a legal immigration status, transphobia, mental health struggles, and exposure to trauma. One of the most important resources the organization can offer, then, is harm reduction.

“This has a huge chilling effect on us,” says Afton:

“This law aims to shut down basic information sharing. If our ability to provide safety advice were to be hampered and online forums where peers share survival strategies were shut down with the passage of this law, I can’t imagine how urgent safety needs could be met otherwise. It is a recipe for increased exploitation of those most vulnerable.”

“The public needs to be weary of any anti-trafficking campaign,” Sly adds. “It’s an excuse to launch an egregious attack on our civil liberties and rights. They are trying to silence us. Sex workers need a place where they can meet in order to address sex trafficking, as it impacts us the most.”

Even without FOSTA, there a number of laws in place to prevent platforms from promoting sex workers—and, as a result, such platforms are continuously shut down. In 2015, for instance, federal and state law enforcement officials in New York City shut down Rentboy.com, a gay sex work site, and charged its employees with promoting prostitution. Similarly, in 2016, law enforcement in the Seattle area seized Thereviewboard.net—a site where sex workers posted ads—and charged those who ran the site with promoting prostitution. On top of that, the operator of myRedBook.com was sent to federal prison. And Backpage.com—one of the sites that the bill claims to target specifically—shut down its adult section due to public pressure, its CEO arrested for pimping a minor and conspiracy.

The difference between FOSTA and our current laws is that FOSTA allows platforms to be responsible for their users’ content, a singularity that free speech activists believe will be “disastrous for online speech and communities.”

“Perversely, some of the discussions most likely to be censored could be those by and about victims of sex trafficking,” writes Joe Mullen for the EFF. “Overzealous moderators, or automated filters, won’t distinguish nuanced conversations, and are likely to pursue the safest, censorial route.” Many big names in tech, such as Facebook, IBM, Oracle, and Hewlett Packard Enterprise support FOSTA. But while these mega-companies have the money and manpower to monitor traffic and fight lawsuits, FOSTA is likely to harm, if not totally decimate, the nonprofits and small community organizations that don’t have such resources.

“We consider the unbalanced policing of online adult-oriented websites as a direct assault against the sex worker community,” writes The Desiree Alliance, a national coalition of current and former sex workers, in a Sex Workers Rights Joint statement, signed by over 150 various organizations and individuals.

According to the Desiree Alliance, sex trafficking has never been an epidemic in the modern United States, and there are no statistics put forth by the U.S. Justice Department, FBI, or any academic institution that suggest such an epidemic. By contrast, statistics do show that hyper-criminalization and arrests disproportionately affect poor communities and communities of color.

Free speech activists hope that the Senate will reject FOSTA and uphold Section 230 of the CDA, which for the past two decades has ensured a free and open internet by protecting online platforms from liability for the speech of their users.

While FOSTA is unlikely to reduce sex trafficking, it is likely to lead to a greater number of lawsuits. The bill would allow civil plaintiffs to sue sites that “knowingly facilitate” trafficking, but critics believe that this language is too ambiguous, creating serious liabilities for websites that aren’t even aware that users are engaged in sex trafficking on their sites. “SESTA’s ambiguous language will create a new path for trial lawyers to bring expensive lawsuits against websites and social media platforms for quick settlements, fishing expeditions, and more,” writes Evan Engstrom, the executive director of Engine, for The Hill.

Put bluntly: the law will only help trial lawyers and those with the power to hire attorneys—while simultaneously harming sex workers and human trafficking survivors, and censoring marginalized voices along the way. According to Afton, advocates are bracing themselves for how to mitigate the harm of lawsuits already prepared and ready to launch as soon as FOSTA passes, all of which serves to divert much-needed resources from the trafficking survivors her program helps serve.

More disturbingly, FOSTA passed the House even after the Department of Justice sent a last-minute letter noting that the poor language of the bill would actually make it more difficult to prosecute sex traffickers, calling into question the constitutionality of passing such legislation. Despite this, the vote did not surprise Bass: “They don’t have the right information,” she says.

According to Politico, Senate Majority Leader Mitch McConnell told the Republican caucus that the bill would be voted on this week, but did not specify exact timing.

As her future safety and security hang in the balance, Sly remains adamant that FOSTA will only serve to hide sex work and sex trafficking.

“They are sending a clear message that they want us eradicated, but we are one of the oldest and most resilient communities in history and we are not going anywhere,” she tells me.

“Sex workers have always been on the cutting edge of technology. We were some of the first to use video, DVDs, cell phones, and make our own websites, and we will continue to use new platforms and new modalities. If they begin to censor our language, then we will use different language. If they begin to close our sites, we will use other sites like Sugar Baby sites, and regular dating sites. They are just playing whack-a-mole—and making our lives more dangerous in the process.”
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