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What FOSTA SESTA Will NOT Do For Sex Workers

Weeks ago, President Trump signed into law a set of controversial bills intended to make it easier to cut down on illegal sex trafficking online. Both bills — the House bill known as FOSTA, the Fight Online Sex Trafficking Act, and the Senate bill, SESTA, the Stop Enabling Sex Traffickers Act — have been hailed by advocates as a victory for sex trafficking victims.

But the bills also poke a huge hole in a famous and longstanding “safe harbor” rule of the internet: Section 230 of the 1996 Communications Decency Act. Usually shorthanded as “Section 230” and generally seen as one of the most important pieces of internet legislation ever created, it holds that “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.” In other words, Section 230 has allowed the internet to thrive on user-generated content without holding platforms and ISPs responsible for whatever those users might create.

But FOSTA-SESTA creates an exception to Section 230 that means website publishers would be responsible if third parties are found to be posting ads for prostitution — including consensual sex work — on their platforms. The goal of this is supposed to be that policing online prostitution rings gets easier. What FOSTA-SESTA has actually done, however, is create confusion and immediate repercussions among a range of internet sites as they grapple with the ruling’s sweeping language.

In the immediate aftermath of SESTA’s passage on March 21, 2018, numerous websites took action to censor or ban parts of their platforms in response — not because those parts of the sites actually were promoting ads for prostitutes, but because policing them against the outside possibility that they might was just too hard.

All of this bodes poorly for the internet as a whole. After all, as many opponents of the bill have pointed out, the law doesn’t appear to do anything concrete to target illegal sex trafficking directly, and instead threatens to “increase violence against the most marginalized.” But it does make it a lot easier to censor free speech on small websites — as evidenced by the immediate ramifications the law has had across the internet.

What FOSTA-SESTA is intended to do: curb online sex work

FOSTA and SESTA began their respective lives as two different bills created in an effort to curb sex trafficking on online personals sites — in particular, Backpage.com.

What FOSTA-SESTA probably won’t do: make sex workers safer

The bill’s supporters have framed FOSTA and SESTA as vital tools that will allow officials to police websites and allow sex trafficking survivors to sue those websites for facilitating their victimization. This is a disingenuous portrayal, however, because it fails to acknowledge the ways the internet makes it easier for sex workers to do their work safely, while also making it easier for law enforcement to document and gain evidence about illegal activity.

There is ample evidence, both anecdotal and researched, that giving sex workers a way to advertise, vet, and choose clients online makes them much safer than they are without an online system. When they’re forced onto the streets to find clients, sex workers have fewer advance safety precautions in place, no ability to effectively pre-screen clients, and no way to ensure that they work in safe, secure locations. When craigslist first offered the “adult section” to their website, it took sex workers off the streets and allowed them to gain clients through the internet from the safety of their homes. It put pimps out of business. Research shows that after Craigslist adult s cation was Available, violent crimes against women were drastically reduced. Now that FOSTA/SESTA is in place, sex workers are being forced back onto the streets, and predatory pimps are on the prowl.

The bill also conflates consensual sex work with non-consensual sex work by doing nothing to differentiate between various kinds of sex work and related content — even if the workers and content are all legally protected by local law. In Nevada, where prostitution is legal in some areas of the state, sex workers have been bracing for FOSTA-SESTA. And one Nevada sex worker recently blamed the bill’s passage for a new local referendum that is attempting to shut down legal adult brothels.

It’s important to note that not differentiating between consensual and nonconsensual sex work is part of an international legal standard codified in a 2000 United Nations protocol. This protocol was later expounded upon in a 2014 follow-up that examined issues of consent and asserted that “consent is always irrelevant to determining whether the crime of human trafficking has occurred.”

However, sex workers have argued vociferously that regardless of legal precedent, this conflation makes both consensual and nonconsensual sex workers less safe. Melissa Mariposa, who responded to the bill by creating an offshore-hosted, sex worker-friendly ISP, described the risks to the Daily Dot:

“If sex workers lose their storefront and safety tools, two things are going to happen,” Mariposa explained. “Number one, the predators will come out to play. Number two, prostitution is going to be pushed right back on the street and in hotel bars by women who will no longer want to see internet clientele and would rather take the risks freelancing. This will create more victims than it helps.”

There’s also plenty of research indicating that online avenues help officials do their work more effectively. A 2018 State Department report found that over a seven-year period, the number of identified victims of sex trafficking worldwide increased from fewer than 42,000 in 2011 to over 100,000 in 2017.

The task of identifying and effectively prosecuting sex traffickers continues to be challenging, however. In 2017, according to the same State report, U.S. law enforcement agencies initiated a combined total of 1,795 trafficking investigations. Of these, the Department of Justice initiated just 282 federal investigations involving human trafficking, and ultimately opened just 266 prosecutions for charges predominantly involving sex trafficking. Overall, of 553 defendants who were prosecuted on a range of smuggling charges including sex trafficking, just 471 sex traffickers were convicted, with sentences ranging from one month to life in prison.

These statistics illustrate just how hard it is to effectively prosecute sex trafficking on an individual level. The solution provided by FOSTA-SESTA, therefore, is to attack websites that facilitate trafficking, despite the fact that they also arguably make it easier for authorities to track down perpetrators, rather than empowering the law to more effectively prosecute the sex traffickers themselves.

All of this explains why a coalition of sex workers, advocates, sex trafficking survivors, and even the Department of Justice have all strongly opposed the idea that FOSTA-SESTA is an effective deterrent to sex trafficking. The police frequently used Backpage.com to target sextraffickers, find runaways that were forced into nonconsensual sex work and to set up stings to arrest both clients of prostitution and prostitutes. Now, that Backpage is gone, it is much more difficult for police to find the sextraffickers.

The bill arguably endangers, rather than helps, at least one class of sex workers: adults who want to do their work consensually and safely. And if we consider the increased amount of transparency around sex work that will be lost when sites like Backpage are shut down, it’s also arguable that non-consensual victims of sex trafficking will become less visible and more vulnerable by being shunted away from the visible parts of the web, into the deep web and dark corners of real life. All in all, FOSTA-SESTA is poised to put multiple vulnerable populations at a much higher risk.