06/07/2018
Official Statement Written by The Red Umbrella Project's Board of Directors
In the current thrall, it’s a challenge to keep track of every erosion of our rights and protections being pursued, with mixed success, by the reactionary cabal holding our politics hostage. You may have missed that two bills were recently signed into law: the House bill called FOSTA (“Fight Online S*x Trafficking Act”) and the Senate bill SESTA (Stop Enabling S*x-Trafficking Act). While anti-s*x trafficking advocates have declared their passage as a victory for victims, s*x workers have already been impacted in ways that bode poorly for all adult consensual communication and online usage.
SESTA/FOSTA carve out overly broad exceptions to the longstanding “safe harbor” rule of the internet. From Section 230 of the 1996 Communications Decency Act, “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.” Countering this principle, SESTA/FOSTA makes online platforms responsible if third parties are found to be posting ads for (consensual, adult) prostitution. In the amended SESTA bill, Section 3 states, “This bill amends the Communications Act of 1934 to specify that communications decency provisions protecting providers from liability for the private blocking or screening of offensive material shall not be construed to impair or limit civil action or criminal prosecution under state or federal criminal or civil laws relating to s*x trafficking of children or s*x trafficking by force, fraud, or coercion.”
The goal is to provide law enforcement the ability to prosecute s*x trafficking rings. The bills penalize platforms that “promote or facilitate prostitution,” and allows authorities to pursue platforms for “knowingly assisting, facilitating, or supporting s*x trafficking.” This overly broad language could implicate s*x worker advocacy organizations (like us), legal s*x workers, and s*x-work adjacent content. It could even implicate partners, friends, and allies of individual s*x workers. If all s*x workers are trafficked, anyone who “facilitates” a s*x worker earning a living is potentially criminalized as a trafficker.
We’ve already seen various platforms (i.e. craigslist personals) and alternative sites like Cloudfare shut down because the providers are wary of overzealous SESTA/FOSTA enforcement. Craigslist has made the following statement in response to FOSTA,
US Congress just passed HR 1865, "FOSTA", seeking to subject websites to criminal and civil liability when third parties (users) misuse online personals unlawfully.
Any tool or service can be misused. We can't take such risk without jeopardizing all our other services, so we are regretfully taking craigslist personals offline. Hopefully we can bring them back some day.
To the millions of spouses, partners, and couples who met through craigslist, we wish you every happiness!
The law doesn’t appear to do anything concrete to target illegal s*x trafficking directly, and instead threatens to impact the safety and security of consensual s*x workers and their relationships while making it easier to censor free speech, especially on smaller platforms.
For many years, Backpage’s adult advertising section was a forum for s*x workers. Previous lawsuits–the most recent in 2016–aimed at Backpage have been dismissed on the basis of Section 230’s dictum that host sites aren’t liable for content posted by their users. That said, its adult section was shut down last year; the Senate’s investigating committee cited the provider’s willingness to “edit the text of adult ads to conceal the true nature of the underlying transaction.” This spring, ahead of the passage of SESTA/FOSTA, the FBI seized Backgage and arrested its founder.
In 2015, after 20 years of operation, Rentboy, the largest site for male s*x workers, with global reach, was shut down for enabling prostitution. Its founder, Jeffrey Hurant, and six employees were arrested during a raid of their offices. Charges against the employees were eventually dropped, but Hurant was convicted and sentenced to six months in federal prison.
FOSTA and SESTA were created last year specifically in response to Backpage’s citing Section 230 protections. The laws seek to ensure that lawsuits like the one dismissed in 2016 could move forward. “Since their invention, online forums for advertisements and community-building have been essential to s*x-worker survival,” says Liz Afton, our sister at the S*x Workers Project, an initiative of Urban Justice Center. “The bill strips away their access to online platforms that allow them to post advertisements for employment opportunities, build community with other s*x workers, and share safety materials such as Bad Date lists—a life-saving resource that alerts other s*x workers to predatory individuals so they can avoid dangerous interactions.”
The bill’s supporters (among them, Congresswoman Carolyn Maloney, representing NY-12) have claimed SESTA/FOSTA will allow police to prosecute traffickers and s*x trafficking survivors to sue web hosts for facilitating their victimization. This claim fails to acknowledge the documented reality that the internet has made it easier for consensual adult s*x workers to do their work safely and independently. It negates the progress made in having safer conditions from which to work and screen clients. There is no denying that there are cases of s*x trafficking; however, these new laws in place will do more harm than good. It will drive not just s*x workers who choose to work in the s*x industry underground, but it will further drive s*x traffickers underground and make it much harder to point out. These laws represent the most egregious conflation of s*x work and trafficking to date. It has the potential to criminalize friends, family members, and supporters of (consensual adult) s*x workers.
This is not the first time the conflation of consensual s*x work and trafficking has been codified within the language of the law. In 2014, the United Nations published an Issue Paper asserting, “The Trafficking in Persons Protocol statement is clear: consent is always irrelevant to determining whether the crime of human trafficking has occurred.” A coalition of s*x workers, advocates, and s*x trafficking survivors agree that SESTA/FOSTA is not effective in deterring s*x trafficking, and potentially criminalizes adult communications. The law raises the issue of invasion of privacy of all consenting adult s*xual communications. The freedom of anonymity and privacy that the Internet has provided for s*xual communication is now very much threatened. Even the US Department of Justice has issued a statement saying that the laws raise “serious constitutional concerns.”
SESTA/FOSTA initially sought to create enforceable loopholes to Section 230 for websites facilitating prostitution. By the time the bills were reconciled, those provisions were far broader and more punitive. The Electronic Frontier Foundation has called SESTA/FOSTA “a bad bill that turned into a worse bill and then was rushed through votes in both houses of Congress.” A coalition of internet freedom advocates including the nonprofit TechFreedom issued a statement calling the combined law unworkable. The organization concluded, “The best of intentions won’t stop SESTA from harming those it aims to protect.” Lacking Section 230 protections, online platforms have already curtailed speech and in some cases shut down, under the threat of costly lawsuits.
SESTA/FOSTA should be challenged on the basis of constitutional grounds, but real harm will come to vulnerable members of our community–particularly women, people of color, and LGBT people–in the meantime. This terrible legislation is a culmination of the long-standing conflation of s*x trafficking with consensual adult s*x work we have seen overwhelm our narratives in the last decade. Now that this conflation has been enacted into law, we must draw a clear distinction between s*x trafficking perpetrators and adult consensual s*x workers and their allies by decriminalizing adult consensual s*x work and focusing prosecution on actual s*x traffickers.
