How FOSTA/SESTA is Impacting Sex Work and Curbing Internet Privacy
Executive Summary
The Fight Online Sex Trafficking Act (FOSTA) and the Stop Enabling Sex Traffickers Act (SESTA) were passed in 2018 as part of an effort to allow law enforcement to better incriminate sex trafficking occurring on the internet. However, enactment of FOSTA SESTA has increased the dangers of sex work while not actually curbing sex trafficking, and it has also set a dangerous precedent for removing first amendment rights on the internet. FOSTA/SESTA’s structure has created a chilling effect around sex work, thereby forcing sex workers back to the streets where dangerous encounters with both clients and police are more likely. At the same time, ads potentially affiliated with sex trafficking were removed from the easily accessible internet as a result of FOSTA SESTA, thus making sex traffickers more difficult to find by law enforcement. FOSTA/SESTA has also created a new way by which the government can indirectly censor free speech on the internet. Solving the problems FOSTA/SESTA has created is by no means an easy task, but the solution should start with the repeal of FOSTA/SESTA. This, however, cannot be the only policy change as FOSTA/SESTA has already created problems that its repeal will not simply reverse. Government policy should also aim to support both sex trafficking victims as well as sex workers with the goal of decriminalizing prostitution. The easiest way to begin this process would be to establish research around sex work involving its demographics, dangers, and benefits. In this way, future policy change can be more focused.
Introduction:
In 2018, the Trump Administration passed the Fight Online Sex Trafficking Act (FOSTA) and Stop Enabling Sex Traffickers Act (SESTA) in an effort to curb sex trafficking occurring through the internet. FOSTA/SESTA removed protections for domain owners who gain revenue from ads that may facilitate sex trafficking. For all intents and purposes, FOSTA/SESTA is a law that should improve society as a whole by limiting the avenues by which sex trafficking occurs. However, FOSTA/SESTA not only fails to accomplish its goals, but also causes a host of other problems for legal sex workers, warranting its repeal.
There are three main consequences to the enactment of FOSTA/SESTA: the increase in violence against sex workers, the hindering of law enforcement in catching sex traffickers, and the promotion of censorship of the internet.
THE PROBLEMS OF FOSTA/SESTA:
Marginalization of Sex Workers
Sex workers are already an incredibly marginalized population of the US due to the illegal nature of their work. In 2016, around 38,000 arrests were made in relation to prostitution (Procon.org, 2020), meaning that individuals selling sex were incarcerated. This is contrasted with only 880 arrests attributed to sex trafficking related crimes (Smith, 2021). These numbers show a large part of the problem. Despite Congress’s goal to curb sex trafficking, current policy disproportionately favors arresting sex workers over seeking to arrest those exploiting them, and this completely ignores sex workers who are not forced or coerced into their line of work. Fear of law enforcement is also reflected in the sentiments of sex workers themselves who are ignored or even extorted by police officers. As a result, not only are sex workers not protected, there is also very little data about crimes against sex workers.
FOSTA/SESTA further marginalizes sex workers by creating a chilling effect around sex work in general (Mcknelly, 2021). Large domain holders like Facebook and Google have imposed censorship policies in relation to sexual content to protect themselves from FOSTA/SESTA (Romano, 2018). Other websites like Craigslist and Backpage, which previously offered spaces where sex workers could offer their services without engaging with the client directly or having the danger of a run in with the police (Musto, 2021), have either been removed from the internet or removed sections of their websites that implicated sex work as a whole.
The destruction of these spaces is dangerous because it forces sex workers back onto the streets. After the enactment of FOSTA/SESTA violence against sex workers from former pimps as well as harassment by police increased, and this increase in violence is a direct result of FOSTA/SESTA (Romano, 2018). When Craiglist first opened their erotic services (ERS) section, female homicides dropped by 17% (Blunt and Wolf, 2020), and while Craiglist’s ERS did not definitively cause this drop (Feifer, et al., 2019), the data calls for establishing more research on how FOSTA/SESTA affected sex workers. There is clearly an untold story due to the gap in statistics regarding sex work as a whole
Hindering of Anti-Sex Trafficking Law Enforcement
Some may argue, however, that stopping sex trafficking is more important than providing a safe environment for sex workers. This presents another problem of FOSTA/SESTA. FOSTA/SESTA doesn’t stop sex trafficking, it only makes it less visible to the public.
Since the enactment of FOSTA/SESTA in 2016, the number of arrests relating to sex trafficking have only gone down (Figure 1). This is because by pushing sex trafficking off of the more publicly visible web, FOSTA/SESTA made sex traffickers harder to find, and severely hindered the ability of police to provide evidence when charging potential sex traffickers (Jordan, 2018). Websites like Backpage and Craigslist provided police with clear evidence to subpoena and subsequently indict potential sex traffickers (Mcknelly, 2021).
When looking at FOSTA/SESTA’s direct track record with relation to arrests, it has only been used one time in the last 3 years since its inception in charges against cityxguide.com. While some may say that this is a sign of FOSTA/SESTA’s success, this is actually proof of its failure. USA vs Martono, the case that charged the creator of cityxguide.com resulted in the arrest of one man with no further arrests or investigation into sex traffickers who may have been using the site to advertise their services. According to the US GAO, prosecutors have not found success in utilizing violations of FOSTA/SESTA as grounds for conviction due to lack of evidence, and instead prefer to utilize anti money laundering laws, which they claim to be more successful in court (Robertson, 2021).
Promotion of Censorship
The third problem with FOSTA/SESTA relates to the censorship that FOSTA/SESTA promotes. FOSTA/SESTA is written in a way that makes it difficult for domain holders to protect themselves from accusations of facilitating sex trafficking (Mcknelly, 2021). The law does not specify what constitutes facilitation of sex trafficking, meaning that if a jury were to decide that advertising cheap STD tests for sex workers somehow aided sex trafficking, the domain holder would have very little ability to fight against the criminal charges. The case for FOSTA/SESTA being used in such a manner has already been brought to court in Woodhull Freedom Foundations v. United States, but this case has yet to be settled (Morgan, 2020). Because of this, FOSTA/SESTA has essentially censored language around sex work as well as content around sex work as a whole.
This censorship, however, has bled into topics that are completely unrelated to sex work and sex trafficking. In 2018, Tumblr issued blanket bans on all nudity and sexual content mostly in response to FOSTA/SESTA. This ban was moderated by a machine learning algorithm that would flag anything violating the new policy as sensitive. Unfortunately, this included many unrelated topics, like a spool of thread or drawings of a Louis Vuitton bag. While the moderation of this content may seem like a silly problem, on a wider scale, FOSTA/SESTA sets a precedent for blanket bans like the one set forth by Tumblr to occur in relation to other topics that may be deemed dangerous, such as terrorism. In this case, a machine learning algorithm may find that critique of the government is potentially harmful and related to terrorism, and thus censor said critique and block public access. Under current law, this language is protected by Section 230 of the US Law, but FOSTA/SESTA’s amendment of Section 230 has shown that internet speech is not as protected as it initially seemed, and in fact Congress is only one or two laws away from a totalitarian-esque control of internet content.
Why are there Supporters of FOSTA/SESTA?
FOSTA/SESTA, on paper, is a law that can only do good. One of the main supporters of FOSTA/SESTA is the ECPAT, which has supported FOSTA/SESTA since its inception. The ECPAT has not, however, addressed the concerns of opposition to FOSTA/SESTA, and this is largely due to a lack of data regarding the harm that FOSTA/SESTA has incurred. While there is a wealth of anecdotal evidence from sex workers as well as legal journals on the negative impacts of FOSTA/SESTA, there are no nationwide statistics on the increases in violent crime against sex workers, or the number of sex workers forced to work in the streets. Thus, the ECPAT’s support of FOSTA/SESTA is simply a result of not having any metric for its wider impact.
POLICY RECOMMENDATIONS:
Repeal of FOSTA/SESTA
Solving the problems of FOSTA/SESTA, however, is no easy task. One urgent solution is complete repeal of FOSTA/SESTA. Repealing FOSTA/SESTA would reopen the internet to all that was previously lost, but it would not provide any further solutions against sex trafficking. Repealing FOSTA/SESTA would, however, solve the problems of violence against sex workers, reducing incarceration rates for sex work, thus allowing the justice system to focus on more pressing issues like sex trafficking.
While repealing FOSTA/SESTA may solve issues of violence against sex workers, it would not guarantee repeal of content restrictions on larger domains, nor would it solve more stringent policing of the internet by individual domain holders. Sex work and sexual content as a whole is stigmatized, thus large domain holders may find that strict policing and censorship of any sexual content is more beneficial to the image of their domain than the health of sex workers. This has most recently been seen during the ban on sexually explicit content on OnlyFans (Nilsson, 2021), and while OnlyFans reversed the ban within the week, the situation served as an example of the fickle nature of online sex work, and the uncertainties that FOSTA/SESTA created. By allowing censorship of sex work and sexual content as a whole on large internet domains, this would also lead to less knowledge about sex trafficking due to sex trafficking being very closely linked to sex work.
Thus, repeal of FOSTA/SESTA should not be the only policy action taken in order to undo the problems that FOSTA/SESTA originally created.
Decriminalization of Prostitution
Part of the larger problem that FOSTA/SESTA bridges into is the criminalization of prostitution as a whole. History has shown that criminalization of “immoral goods’’ has only led to the establishment of underground ways to deliver said goods. The criminalization of alcohol led to the development of organized crime within the US. Criminalization of drugs such as cocaine has led to the growing power of drug cartels within the US. This points to a larger argument of how to consume immoral and potentially societally destructive goods which is not the focus of this brief, but it does beg the question of how decriminalizing prostitution would affect human trafficking. Research has shown that decriminalization of prostitution would actually increase chances of victims of sex trafficking going to the police (Stern, 2019). In light of this, current repeal of FOSTA/SESTA should be done with the goal of completely decriminalizing prostitution in the future. As research becomes more available from small changes in legislature and funding nonprofits like the Sex Workers Project, so can the attitudes of the general public towards sex work as a whole change for the better.
Decriminalizing prostitution is not only a matter of protecting sex workers, but can also create benefits for the US government. Government regulation of prostitution would help to reduce the spread of sexually transmitted diseases as well as provide more opportunities for tax revenue to be generated. Decriminalizing prostitution would also allow for a wealth of data and statistics on sex workers and sex trafficking to be generated as well as provide easier channels of support for former victims of sex trafficking.
Support for Sex Workers and Victims of Sex Trafficking
Decriminalization of prostitution in itself is support for sex workers and victims of sex trafficking as many victims of sex trafficking are often arrested as prostitutes, and thus are seen as perpetrators of crime by the general public rather than as victims of it. In doing so, trust between the government and sex workers as well as those who are victims of sex trafficking has been eroded, and thus sex trafficking victims are less likely to report their traffickers for fear of punishment by the US justice system (Albright and D’Adamo, 2017). Additionally, decriminalizing prostitution would allow the government to give better funding to organizations that support sex workers and victims of sex trafficking, as benefits for one group often result in benefits for the other. By establishing better rapport between the government and people involved in the sex trade either as workers or as victims, sex trafficking as a whole can be better stopped by law enforcement.
Establishing National Statistics on Sex Work
The other aspect of decriminalizing prostitution is data. Decriminalization of prostitution would allow for better collection of data. As was mentioned earlier, the effects of the internet on the safety of sex workers is difficult to discern due to the large lack of data on sex workers as a whole. Because sex workers have historically been a marginalized group, police reporting on violence against sex workers essentially does not exist since sex workers are much less likely to seek out police for assistance. Decriminalizing prostitution would, as was established earlier, rebuild the trust between law enforcement and sex workers, thus allowing for better reporting of violent crime as well as a better view of how sex workers are impacted by changes in legislature. This would allow for more accurate law making in the future to better protect both sex workers and victims of sex trafficking, instead of passing legislature like FOSTA/SESTA which only provides a false sense of morality to the general public.
Changes within the FBI and Law Enforcement
Additional internal investigation within the FBI on the nature of sex trafficking and prosecution of sex trafficking should also guide policy. Police have stated that the removal of Backpage and censorship of sex work related ads have placed additional difficulties on the prosecution of sex work, but further statistics as well as case studies on the difficulties of prosecuting sex traffickers after FOSTA/SESTA would help to highlight the scope of the problem. Reform of police should also be implemented as documentation of crimes related to violence against sex workers will mostly be gathered by local police forces. Thus, police documentation of such incidences would also be a part of the research and reporting that the legislature should currently strive to create.
Conclusion:
FOSTA/SESTA has brought a bout of problems to the forefront of political and legislative discourse, and the repeal of FOSTA/SESTA is a pressing concern for many political and human rights activists. FOSTA/SESTA has caused an increase in violence and incarceration of sex workers while failing to deliver on its only goal: aiding in the fight against sex trafficking. Outside of the world of sex work, FOSTA/SESTA also set a dangerous precedent for censorship of media due to threat of prosecution, and thus invokes a series of first amendment violations. FOSTA/SESTA’s repeal, however, is not the only policy action that should take place. Repeal of FOSTA/SESTA should be coupled with measures to fight violent crime against sex workers and reestablish support systems for sex workers and victims of sex trafficking.
Works Cited:
Albright, Erin, and Kate D’Adamo. “Decreasing Human Trafficking through Sex Work Decriminalization.” Journal of Ethics | American Medical Association, American Medical Association, 1 Jan. 2017, https://journalofethics.ama-assn.org/article/decreasing-human-trafficking-through-sex-work-decriminalization/2017-01.
Blunt, Danielle, and Ariel Wolf. “Erased: The Impact of Fosta-Sesta and the Removal of Backpage on Sex Workers.” Anti-Trafficking Review, no. 14, 2020, pp. 117–121., https://doi.org/10.14197/atr.201220148.
Feifer, Katie, et al. “Do Prostitution Advertisements Reduce Violence Against Women? A Methodological Examination of Cunningham, DeAngelo, and Tripp Findings.” Dignity (Kingston, R.I.), vol. 4, no. 3, 2019, https://doi.org/10.23860/dignity.2019.04.03.07.
Fischer, Jordan. “Running Blind: IMPD Arrests First Suspected Pimp in 7 Months.” WRTV, WRTV, 3 July 2018, https://www.wrtv.com/longform/running-blind-impd-arrests-first-suspected-pimp-in-7-months.
Megan McKnelly* . “ARTICLE: Untangling SESTA/FOSTA: How the Internet’s “Knowledge” Threatens Anti-Sex Trafficking Law.” Berkeley Technology Law Journal, 34, 1239 2019 . advance-lexis-com.libproxy2.usc.edu/api/document?collection=analytical-materials&id=urn:contentItem:600W-6XY1-F1P7-B2KG-00000–00&context=1516831. Accessed September 26, 2021.
Musto, Jennifer, et al. “Anti-Trafficking in the Time of Fosta/sesta: Networked Moral Gentrification and Sexual Humanitarian Creep.” Social Sciences (Basel), vol. 10, no. 2, MDPI AG, 2021, pp. 1–18, doi:10.3390/socsci10020058.
Procon.org. “US and State Prostitution Arrests — Prostitution — Procon.org.” US and State Prostitution Arrests, 6 Apr. 2020, https://prostitution.procon.org/us-and-state-prostitution-arrests/.
Robertson, Adi. “Internet Sex Trafficking Law Fosta-Sesta Is Almost Never Used, Says Government Report.” The Verge, The Verge, 24 June 2021, www.theverge.com/2021/6/24/22546984/fosta-sesta-section-230-carveout-gao-report-prosecutions.
Romano, Aja. “A New Law Intended to Curb Sex Trafficking Threatens the Future of the Internet as We Know It.” Vox, Vox, 13 Apr. 2018, https://www.vox.com/culture/2018/4/13/17172762/fosta-sesta-backpage-230-internet-freedom.
Smith, Erica. “Human Trafficking Data-Collection Activities, 2020.” Bureau of Justice Statistics, United States Department of Justice, Mar. 2021, https://bjs.ojp.gov/library/publications/human-trafficking-data-collection-activities-2020.
