It was expected: President Donald J. Trump signed the “Allow States and Victims to Fight Online Sex Trafficking Act” on Wednesday with his usual flair. He assured the mother of a sex trafficking victim, “We’re with you 1,000 percent.”
In reality, the legislation Trump signed will do nothing to eliminate sex trafficking. But it will do a great deal to imperil everything from sex workers’ health and safety to internet freedom, not to mention the First Amendment.
An amalgam of the Fight Online Sex Trafficking Act (FOSTA) and the Stop Enabling Sex Traffickers Act (SESTA), the bill’s purpose is to make it easier to hold websites—everything from Craigslist to Amazon—accountable for what users share.
Proponents came up with the Act to “fix” the portion of the Communications Decency Act that previously thwarted an attempt at prosecuting Backpage.com heavies.
FOSTA/SESTA was birthed thanks to a case against Backpage.com, a classifieds website. In 2016, executives of Backpage were arrested on charges of pimping a minor, pimping, and conspiracy to commit pimping. Prosecutors claimed that Backpage was primarily developed to facilitate illegal sex work, but the court dismissed the case citing Section 230 of the Communications Decency Act.
What’s Section 230, you ask?
Section 230 says that ISPs and websites publishing third party content would be protected against laws that would otherwise hold them responsible for the speech of their users. It’s because of Section 230 that we have the freedom to post reviews on Amazon or complain about politics on a Wordpress site. Wikipedia and the Internet Archive exist in part because of Section 230. Granted, that mostly hands-off stance is also claimed as the reason sites like Twitter and Facebook have been loath to do anything about violent threats from white supremacists or the misogynists of Gamergate.
So, now this hybrid FOSTA-SESTA bill makes publishers responsible for third-party content posted on their sites. That’s going to have outsized consequences.
Yes, criminal prosecution of sites that can be used to facilitate sex trafficking will be easier. Presumably in anticipation of Trump’s signature, the Department of Justice indicted Backpage.com on charges of conspiracy to facilitate prostitution, facilitating prostitution, conspiracy to commit money laundering, and money laundering.
The indictment against Backpage does not look good. It summarizes 17 experiences where alleged victims of trafficking passed through the site, and details email correspondences between Backpage staff about how to discuss escort services on the platform. Cosme Lopez, a spokesman for the U.S. Attorney's Office in Phoenix, told AZ Central that several of the victims were as young as 14 years old. But while Backpage was imperfect and had many flaws, sex workers say that it became critical to their businesses and their safety. Backpage wasn’t good, but it was what they had to work with.
The problem is that in the big picture, the bill doesn’t actually fight sex trafficking. In fact, it does quite the opposite.
FOSTA/SESTA makes it easier for traffickers and other exploitative actors to force sex workers into more dangerous situations, even as it makes it harder for law enforcement to gather information that will allow them to take action against sex traffickers.
Sex workers have been some of the most vocal about the negative impact this will have on their lives. And their fears are not hyperbolic — when Rentboy and myRedbook were raided by federal authorities for promoting prostitution, many sex workers who were screening clients and getting names of dangerous bookings were forced instead to go onto the street. Many worry about law enforcement and their historical failure to protect vulnerable sex workers, and these raids additionally appear to have a negative impact on exactly what they’re meant to help — getting sex trafficking victims the help they need. One New York Times piece from 2017 quotes a sergeant in the San Jose human trafficking unit as saying that with the removal of Backpage, street-based sex workers were more common, and that the department got far fewer tips, making his job even more difficult.
Driving sex work offline and underground destroys community and reduces the resources available to sex workers, as well as those who may be victims of trafficking.
Multiple websites that functioned as forums for sex workers to give each other support and advice have also disappeared almost overnight after FOSTA/SESTA passed.
Not only does this bill do more harm than good, but it is a distraction from the factors contributing to sex trafficking—and the actions needed to end it.
A serious problem calls for serious solutions, and SESTA is not a serious solution. At the heart of the sex trafficking problem lies a complex set of economic, social, and legal issues. A broken immigration system and a torn safety net. A law enforcement regime that puts trafficking victims at risk for reporting their traffickers. Officers who aren’t adequately trained to use the online tools at their disposal, or use them against victims. And yes, if there are cases where online platforms themselves directly contribute to unlawful activity, it’s a problem that the Department of Justice won’t use the powers Congress has already given it. These are the factors that deserve intense deliberation and debate by lawmakers, not a hamfisted attempt to punish online communities.
As platforms struggle to screen content, they’re likely to cast a too-wide net. There will be repercussions for all content about sex, with particularly profound consequences for members of the LGBTQ community. As the Electronic Frontier Foundation puts it, consider “the LGBTQ teenager in South Dakota who depends every day on the safety of his online community.”
Examining the difficulty of filtering is also how we arrive at the inevitable special interest aspect of this nightmare bill.
By making it easier to prosecute sites, the bill’s imposing a tremendous burden on companies. That’s why sites like Facebook, Amazon, and Microsoft—via the Internet Association—opposed the bill originally. It’s also why they changed their minds after some tweaks that lessened their culpability, i.e., specifying that a site had to “knowingly” permit sex trafficking-related content.
Only the tech giants have the resources to monitor their sites effectively enough to ensure compliance. Even for them, of course, it’s a dubious proposition. But, again, only they can afford whatever legal consequences may come—a small price to pay in exchange for the competitive edge they gain. Start-ups will be crippled.
This bill’s a boon for big business and a blight for the rest of us, especially the members of some of our most vulnerable communities.