This week [3/21/18], the Senate will vote on legislation that would effectively force many Internet companies—including web hosts, classified sites, and social media platforms—to ban consenting adults from advertising or promoting any sex-related services whatsoever. The law would very likely lead to a ban on advertisements for perfectly-legal adult services such as stripping, adult modeling and performing, and BDSM services (which are legal insofar as they don’t not involve genital contact.) The ban would also extend to adults advertising illegal but victimless services, such as the non-coerced exchange of sex for money between fully-consenting adults. It may even lead to censorship of consenting adults talking about these practices with each other–including discussion of how to reduce harm associated with these practices–on the Internet. And among all this, to the degree that pimps and traffickers advertise trafficked victims online, it would prevent those ads as well.
This last category—which we can all agree is a truly vile phenomenon, which must be stopped one way or another—is the putative reason for the bill. Like the “USA PATRIOT Act,” it has one of those politically-charged names that makes it damn hard to oppose, or even question, without seeming evil. The act is entitled the “Stop Enabling Sex Traffickers Act” (SESTA, which is the Senate version of the House’s similar FOSTA bill.) Could anyone oppose the USA PATRIOT Act, and still be a considered a patriot of the USA? (The answer is “Yes.”) And could anyone oppose the Stop Enabling Sex Traffickers Act, while still being opposed to sex trafficking?
The answer to that question is also “Yes.” Not only could you be opposed to FOSTA-SESTA without being evil, but you should be opposed to it, as the law is breathtakingly destructive—including destructive of the very aims it purports to address. The remainder of this piece will be aimed at persuading you of why this is so, and why you should call both your senators today and leave them messages in opposition to the bill, urgently, before they vote tomorrow.
At its core, FOSTA-SESTA is an all-out attack on the free-speech protections provided by Section 230 of the 1996 Communications Decency Act. Section 230 protects owners and operators of Web platforms (such as web hosts, bulletin boards, and social media networks) from liability for the speech and actions of third-party users of those services. For one of the first times in Internet history, Internet operators would now be exposed to state and civil prosecution for even knowing about crime being facilitated through their platforms.
Elizabeth Nolan Brown, an editor at Reason magazine and a consistent critic of government overreach on sex policy, writes:
Without Section 230, any online media with a comments section could be prosecuted if one commenter makes a true threat against another. Twitter could get terrorism charges over ISIS-aligned accounts; Snapchat liable anytime anyone shared someone else’s photo without their consent; and services like Match.com or Tinder held responsible for violence committed during a hookup they brokered. It’s the law that keeps companies from being either bogged down by frivolous lawsuits and prosecutions or monitoring and limiting what users can post so stringently that the internet ecosystem as we know it ceases to function….
And these days, authorities at all levels speak of “human trafficking busts” and “sex trafficking stings” when what they are really talking about it old-fashioned vice-squad work targeting independent adult sex workers and their would-be customers. Much of this is done under the umbrella of federally-funded Human Trafficking Task Forces and DOJ-approved grants to “end demand” for prostitution.
Politicians and prosecutors have consistently conflated adult, non-coerced, consensual sex work–including legal forms of sex work such as porn performing and BDSM–with forcible, coerced sex trafficking (in order to score easy political points with sex-negative constituents opposed to any and all sex work.) This leads to the fear among adult sex workers that, in response to FOSTA-SESTA, Internet platforms will essentially shut down all speech related to adult, consenting, non-coerced sex work on the Internet, even if it has absolutely nothing to do with sex trafficking–as the vast majority of sex work does not. And even if it is speech and peer support among sex workers about how to reduce risks and harms associated with their trade. It will be one of the biggest blows to free speech and civil liberties on the Internet in history.
Even if you have no sympathy for the civil liberties of consenting adult sex workers–and I hope you do have this sympathy–you should still be opposed to FOSTA-SESTA, just on the grounds that it will ruin the Internet as we know it.
Eric Goldman, a professor of law at Santa Clara University School of Law, and an outspoken critic of FOSTA-SESTA, writes that “Section 230 has been described as ‘the law that gave us the modern Internet,’ the ‘most important law in tech,’ and ‘the law that makes the Internet go.’ All of the top 10 most-trafficked websites (as ranked by Alexa) republish third party content, and nine of those sites depend on Section 230 to do so. In effect, Section 230 provides the legal foundation for the Internet we know and love the most.”
To hack away at a legal cornerstone of the Internet, which is itself a cornerstone of the entire global economy, would require a very pressing reason. Admittedly, it seems that sex trafficking—truly one of the most evil crimes in existence—could be a candidate for such a reason, to the extent it is facilitated online.
However, if you listen to organizations on the frontlines of advocacy for victims of trafficking, as well scholars who have devoted their lives to studying this topic, or if you listen to many victims of trafficking themselves, or to consenting (non-coerced) adult sex workers who have witnessed trafficking in their industry, these people paint a different story. Many of them are saying, as loudly as anyone will listen, that FOSTA-SESTA is truly shitty policy–policy that doesn’t take their front-line knowledge of the issues into any consideration–and will make the situation far worse for trafficking victims.
(By the way, grandstanding politicians looking to score easy demagogic points with their constituency on hot-button sex-work related issues rarely actually listen to or consult consenting adult sex workers, nor do they consult victims of trafficking themselves. These are two very different populations—a point rarely grasped by moralizing politicians–but their voices are equally crucial on this issue. These people’s voices are almost always marginalized in discussions of efforts on how to “help” them. And thus, they consistently tell anyone who will listen—and I’m providing links here so you can listen to what they’re saying too—that laws such as FOSTA-SESTA, purporting to protect them without their input, almost always have the opposite effect.)
People close to the issue consistently say that the free and open Internet is the friend of trafficking victims, and of their efforts to escape their traffickers, not the enemy, and thus, to help such people, Internet freedoms should be strengthened, not destroyed. If you want to see just how true that is, I encourage you to spend some time reading through the moving dialogue on Twitter among other survivors of trafficking, ahead of the FOSTA-SESTA vote, under the hashtag #SurvivorsAgainstSESTA and #SurvivorsAgainstFOSTA
Here’s one of the largest advocacy and outreach groups for victims of sex trafficking, which resoundingly opposes FOSTA-SESTA: “The Freedom Network USA is the largest network of anti-trafficking service providers and advocates in the United States. Our 51 members from over 30 different cities include attorneys, social workers, case managers, researchers, and advocates all with direct experience serving over 1,000 human trafficking survivors per year. With this wealth of experience, we understand the best practices of anti-trafficking work.”
According to their statement on the topic, “When websites are shut down, the sex trade is pushed underground and sex trafficking victims are forced into even more dangerous circumstances. Street-based sex workers report significantly higher levels of victimization, including physical and sexual violence. This means that trafficking victims face even more violence, are less likely to be identified, with less evidence of their victimization.”
Alexandra Levy developed the Human Trafficking curriculum at Notre Dame Law School, and has taught multiple courses on the issue. In a post opposing FOSTA-SESTA, she writes (with links in the original): “Due to its wide accessibility, Backpage [an advertising site targeted by FOSTA-SESTA] has enabled people to find and recover family members (including with the help of journalists); nonprofits point to it as a resource for identifying and reaching out to victims; and scores of criminal indictments reveal its value as a point of connection between police and victims….
“None of this should be surprising: after all, it stands to reason that victims whose services are advertised in more visible places, like Backpage, are more visible to everyone — and thus easier to recover. In this way, Backpage sets a trap for traffickers: lured by the prospect of reaching a large, centralized repository of customers, traffickers end up revealing themselves to law enforcement and victim advocates. There’s nothing to suggest that Backpage causes them to be victimized, but plenty of reason to believe that, without it, they would be much harder to find.”
(Think about it. Have you ever seen a crime movie in which the detective wishes the criminals would communicate face-to-face–on street corners–rather than by easily-traceable cell phones and emails?)
Kristen DiAngelo is the cofounder and executive director of the Sex Worker Outreach Project (SWOP) Sacramento, a “social justice network dedicated to reducing harm, improving healthcare, and upholding both civil and human rights of sex workers and their communities” focused on “ending violence and stigma through education and advocacy, while addressing the health and well being of both trafficking victims and those who engage in survival sex.”
In moving testimony opposing FOSTA-SESTA, addressed to a senate subcommittee, DiAngelo states:
For eight and a half years, I was a victim of sex trafficking…. Lawmakers must listen to the needs and concerns of sex trafficking victims before passing legislation affecting them. After all, nobody wants to stop sex trafficking more than those who have been victims of this heinous crime. The unintended consequences of bad policy decisions are deadly. It deeply disheartens me to see lobbyists saying they want to help fight trafficking but proposing policies that will do the exact opposite. The Stop Enabling Sex Traffickers Act (S. 1693) (“SESTA”) is one such proposal….
When trafficking victims are pushed off of online platforms and onto the streets, we become invisible to the outside world as well as to law enforcement, thus putting us in more danger of violence.
I was a victim of similar policy choices to SESTA, when law enforcement increased its targeting of print advertisements for sexual services. As publications stopped running adult ads, we were forced to work on street corners. Those who were trafficked were thus no longer in plain view and were pushed deeper into the shadows, making us more marginalized. Once on the streets, workers are forced into making split-second decisions about the safety of every interaction. In my organization’s 2015 publication Needs Analysis of Sex Workers in the Sacramento Valley—which has been cited by sex trafficking researchers and law enforcement agencies across the country—18% of the workers interviewed had migrated to the streets after crackdowns on Internet advertising and 59% reported being raped at least once. We heard stories about those women being held captive in closets and being raped and drugged. All of that happened after they had moved from the Internet to the streets….
Online posting forums and advertising platforms do not create trafficking and they will not end it. Publications provide safer venues for us whether we’re being trafficked or not. When online options decrease, we must then move to our next best option, and for many, that means taking to the streets. On the streets, the violence increases, as do our arrests. Taking away options for online posting only migrates the problem; it does nothing to end it.
Let me be clear: I have never met a sex trafficking victim that was set free because an online venue disappeared, but have met victims who were made less safe when those venues were shut down. I’ve met victims who were put on a street corner and moved from city to city, making it harder for them to get help or get away. It makes no difference to a trafficker where his victim works—where it’s a street corner, a bar, or an online forum—but it makes a world of difference to the victim herself. Traffickers only care that they get their money, not where they get it from.
Placing more liability on publications or publishers is irresponsible. It demonstrates a deep misunderstanding of the realities of sex trafficking. SESTA is simply lazy lawmaking: passing it would allow politicians to say they are doing something about sex trafficking without having to do the actual work needed to effect change in this area.
If Congress is interested in stopping sex trafficking, then the stakeholders who have worked most closely with trafficking victims must be consulted. There are needs for funding for research into trafficking as well as medical care and programs to allow victims to reintegrate into society. We need to pass Good Samaritan laws allowing trafficking victims to report their traffickers and pimps without being prosecuted themselves. We need to educate our children in how trafficking happens so that they can avoid becoming victims, especially among the marginalized populations that are at the highest risk for being trafficked. SESTA would do none of that. The bill would not help trafficking victims; it would put them in more danger.
In an article in Allure magazine entitled “If You Care About Sex Trafficking, Trust People in the Sex Trades — Not Celebrities,” author and former sex worker Alana Massey writes: “the new legislation would threaten to criminalize peer-to-peer resource sharing that makes people in sex work safer and more connected. The very websites that these bills enable law enforcement to criminalize are precisely where I found the generous communities and actionable advice I needed to get out of and avoid exploitative sex work situations going forward. Though the bill is meant to target sites hosting sex work advertisements, it covers online forums where sex workers can tip each other off about dangerous clients, find emergency housing, get recommendations for service providers who are sex worker-friendly, and even enjoy an occasional meme. These are often on the same websites where advertisements are hosted.”
SESTA Will Destroy Free Speech on the Internet
It’s not just trafficking survivors and and their advocates who are terrified of SESTA. And it’s not just adult, consenting sex workers. It’s also free speech advocates. And also defenders of a free and open Internet.
Here’s what the ACLU says about FOSTA-SESTA: “We are concerned that the bill would significantly chill the explosion of online political, artistic, and commercial speech without improving the plight of sex trafficking victims…. [W]e are concerned that online providers will overreact out of fear of liability, resulting in the takedown of materials that have nothing whatsoever to do with sex trafficking.” [emphasis added.]
Elsewhere, the ACLU has written: “There is no question that stopping sex trafficking, the subject of the bill, is an important goal. But the relevant questions are whether this bill will achieve its goal, whether there is a more effective way to achieve the goal, and the scope of the bill’s collateral impacts on the Internet ecosystem, the economy, and the modern marketplace of ideas. In our view, protecting section 230 is paramount due to its importance to the U. S. and the world. This is especially so because there are questions about the effectiveness of the proposed law at stopping sex trafficking and there are effective tools that could be used to better effect, all without harming the utility of the Internet.”
Leading the fight against FOSTA-SESTA has been the Electronic Frontier Foundation. Here’s what they say about FOSTA-SESTA:
How would one bill do so much damage to communities online? Simple: it would scare online platforms into censoring their users.
Online platforms are enabled by a law referred to as Section 230. Section 230 protects online platforms from liability for some types of speech by their users. Without Section 230, social media would not exist in its current form, and neither would the plethora of nonprofit and community-based online groups that serve as crucial outlets for free expression and knowledge sharing. [Note: FOSTA-SESTA would likely end the ability of sex workers to support each other online, including sharing “bad date lists” of violent and dangerous clients, as platforms kick of their forums for doing so.]
If Congress undermined these important protections by passing SESTA/FOSTA, many online platforms would be forced to place strong restrictions on their users’ speech, censoring a lot of people in the process. And as we’ve discussed before, when platforms clamp down on their users’ speech, marginalized voices are disproportionately silenced.
Censorship is not the solution to sex trafficking.
In fact, even the US Department of Justice as stated that FOSTA-SESTA will make it more difficult to catch traffickers. The DOJ has also expressed grave concern that the law is unconstitutional, as it imposes liability on Internet providers retroactively (“Ex Post Facto,”) a flat-out violation of the 10th Amendment. “The Department objects to this provision because it is unconstitutional.”
When you have trafficking victims and their advocates, consenting sex-workers, free speech advocates, Internet freedom advocates, and the Department of Justice agreeing that a bill is highly problematic for a long list of different reasons, you know the bill really is a piece of shit.
Please join these groups in voicing your opposition to SESTA. Please leave messages for your senators TODAY, as the Senate votes Monday, 3/12.
Here is a handy tool provided by the Electronic Frontier Foundation that will locate and dial your senators’ offices for you, so you can leave messages in just minutes.
