How SESTA/FOSTA Is Going To Affect Us All

May 9, 2018 in inQueery

Illustration by D. Thomas Magee

On April 11th, 2018 Donald Trump signed a dual bill called SESTA/FOSTA into law. This piece of legislation started as an effort to curb online sex-trafficking and had initially received little media attention. However, it has recently come to light that, on top of posing a threat to free speech online, these bills will also hurt an already marginalized community: sex workers. Here’s a quick rundown of SESTA/FOSTA’s goals and possible effects.

 

  • What is SESTA/FOSTA?

The acronyms SESTA and FOSTA stand, respectively, for the Senate’s Stop Enabling Sex-Traffickers Act and the House of Representatives’ Allow States and Victims to Fight Online Sex Trafficking Act.

The latter targets section 230 of the Communications Decency Act of 1996, which protects websites from being held responsible for content published by their users (“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.”) According to FOSTA, this text was “not intended to provide legal protection to websites that unlawfully promote and facilitate prostitution.” Therefore, websites that encourage prostitution should be held accountable, which calls for the implementation of “enhanced penalties” for people found guilty of “promot[ing] or facilitat[ing] the prostitution of five or more persons.”

SESTA backs that view by stating that the protection offered to websites regarding the potentially offensive nature of the content users publish on them “shall not be construed to impair or limit civil action or criminal prosecution under state or federal criminal or civil laws relating to sex trafficking of children or sex trafficking by force, fraud, or coercion.”

 

  • Why those bills?

The arguments put forth by SESTA/FOSTA supporters fixate on the issue of sex-trafficking and on the supposed lack of protection its victims have received so far.

Take this statement by California Senator Kamala Harris (D): “I am proud to support the Stop Enabling Sex Traffickers Act, which will make it possible for victims and state prosecutors to hold online sex traffickers accountable.” Across the aisle, Arizona Senator John McCain (R), claimed: ”Now for the first time, victims of these heinous crimes will have the ability to seek the justice they deserve.”

So, it looks like supporters of SESTA/FOSTA are primarily animated by the belief that not enough has been done so far to stop sex-trafficking and that websites have failed to stop people from posting ads that involve minors.

One website that gets mentioned over and over in the debate around SESTA/FOSTA is Backpage.com, a “controversial classifieds website,” and a sex-trafficking enabler to many. Take this sentence out of John McCain’s statement on SESTA: “This legislation delivers long-overdue changes to the law that for too long has protected websites like Backpage.com from being held accountable for enabling human trafficking.”

Art by Pinguino Kolb, The Parallax

Now, it is true that Backpage, which was shutdown on the heels of the passage of SESTA/FOSTA, has been found to feature minors in its adult services ads. It doesn’t stand alone in its category though: Craigslist’s adult services section (which was discontinued back in 2010) has been painted as the “Walmart of child sex trafficking.” However, Backpage has received an impressive amount of attention from anti sex-trafficking advocates. It was notably heavily featured in the 2017 documentary I Am Jane Doe, which recounts the ordeal of three young girls who fell victim to sex-trafficking and essentially works as a 90-minutes-long attack ad against Backpage. Watch the movie and you’ll essentially get the reasoning of SESTA/FOSTA supporters: personal ad websites allow people to sell children for sex, Section 230 stops people from suing websites for carrying those ads, so Section 230 needs to go.

 

  • What have the effects of SESTA/FOSTA been on online platforms so far?

As we saw, Section 230 of the 1996 Communications Decency Act makes it so that you cannot sue a website because of something a user published on it. For instance, if a Twitter troll spews hateful anti-semitic rhetoric, you can’t claim that Twitter is the publisher of anti-semitic propaganda and sue them as such (that is why, instead, we  have to pressure such online platforms to curb hateful content put out by their users). Section 230 is hence considered to be a pillar of the internet as we know it. To internet law expert David Post “It is impossible to imagine what the Internet ecosystem would look like today without it.”

Well, in the days that followed the adoption of SESTA/FOSTA, we got a glimpse of what that reality would be like.

One of the most perceptible and immediate repercussions of the passage of those bills  was the shutdown of Craigslist’s personal ads section. That decision, on Craigslist’s part, was particularly striking as it affected a touchstone of the internet and explicitly mentioned FOSTA as its impetus.

 

Craigslist’s message to it users regarding the deletion of its personal ads section. Source: www.vox.com

Another major platform that decided to purge itself of SESTA/FOSTA upsetting content is  Reddit, which marked as private several subreddits revolving around escorting services and “sugar daddies.”

But that’s not all. Some particularly ominous moves have been made by one company: Microsoft. Indeed, shortly after SESTA/FOSTA was made into law, users noticed that the new Microsoft Terms of Services Agreement, which covers several Microsoft  products such as XBox and Skype included a provision on “offensive language” and “fraudulent activity.”

“In the Code of Conduct section, we’ve clarified that use of offensive language and fraudulent activity is prohibited. We’ve also clarified that violation of the Code of Conduct through Xbox Services may result in suspensions or bans from participation in Xbox Services, including forfeiture of content licenses, Xbox Gold Membership time, and Microsoft account balances associated with the account.”

Of course it is entirely up to Microsoft to determine what constitutes offensive language.

The same text bans users from sharing  “inappropriate content or material” including “nudity” and “pornography.” So, one could technically break those terms of services and be punished simply for getting naked during a Skype conversation or for storing “pronographic” pictures on one’s OneDrive.

All this is quite worrisome. And there’s no saying how far this erosion of the free internet might go, especially considering that SESTA/FOSTA’s attack on Section 230 could constitute a precedent for more bills to do the same.

We might as well brace for an uphill battle since it turns out that major film studios – among other large media companies – are quite excited about SESTA/FOSTA’s policing of the internet as it gives them more control over their content and will likely continue to lobby for more restrictions.

 

  • What have the effects of SESTA/FOSTA been on sex workers so far?

Because sex workers use online platforms to carry out their business,  they have been very heavily impacted by SESTA/FOSTA.

What is probably the biggest shake-up that sex workers have experienced in that context is the shut down of Backpage. The website was used as a primary advertising tool by independent sex workers. Now that it is gone, they have to find new ways to reach out to their clientele.

The loss of Backpage is not without precedent. Other sites accused of facilitating prostitution, such as Rentboy.com, have been shut down in the past. In an article for Rolling Stone, sex worker Siouxsie Q relates how she felt a few years ago when a website she was using, Myredbook.com, was seized by law enforcement: “My stomach dropped and I panicked, wondering if the job that allowed me to pay off my student loans and support my family during my mother’s brain surgery – the job that I loved – might finally land me in jail.”

She explains that, rather than exploiting sex workers: “These online tools have been a lifeline for myself and so many in my community.”

Indeed, although it is clearly upsetting to see people use such websites to facilitate sex-trafficking, it appears that they have also allowed countless sex workers to do their job more safely.

In fact, a  2017 paper written by three professors from Baylor University and the University of West Virginia entitled “Craigslist’s Effect on Violence Against Women“ found that “Craigslist erotic services reduced the female homicide rate by 17.4 percent … Our analysis suggests that this reduction in female violence was the result of street prostitutes moving indoors and matching more efficiently with safer clients.”

On Instagram, porn performer Lorelei Lee brought up several ways in which SESTA will negatively affect sex workers: “This bill claims to target human trafficking, but does so by creating new penalties for online platforms that are overwhelmingly used by consensual, adult sex workers to screen clients, to share “bad date lists,” to work indoors, and to otherwise communicate with each other about ways to stay alive.”

Per contra, in the absence of such online tools, sex workers are pushed out of the public eye, they will still work, but they will do so in the shadows and incur more risks. People who were able to stop working outdoors thanks to websites like Backpage might get back out on the streets at the peril of their lives.

On Twitter, sex workers have been vocal about their increased vulnerability.

 

And people have been noticing a comeback of street prostitution.

 

  • What can sex workers do in response?

 

Activists and members of the sex worker community have been quick to respond to the passages of SESTA/FOSTA. They have notably been raising public awareness on the matter by penning articles to explain how the bills affected them. Their testimonies have been featured on websites such as Vice, Buzzfeed or The Huffington Post.

They are also sharing resources to help each other and attempt to mitigate the effects of the bills.

Some of the most pressing questions members of the industry have to deal with are Where to advertise? and How to screen clients? Indeed, one of sex workers’ biggest fears in the SESTA/FOSTA era is to have blacklisted clients slip through the cracks.

Another challenge is staying in touch with one’s clients (also called “companions”) and finding new ones.

Sex workers have to now deal with more financial pressure, which increases class divides. People who were already struggling, as well as those who are not very tech-savvy are especially vulnerable. Sex workers who are aware of this have been trying to make precious resources available to others.

One of the most notable initiatives made to counter SESTA/FOSTA’s fallout is a sex-worker run website that goes to great lengths to protect its users (it has its servers based in Iceland and is very careful about handling users’ data).

Sex workers have been incredibly resilient and very vocal about the predicament SESTA/FOSTA put them in. We can expect that they will find different avenues to carry their business through. However, the way in which those new bills limit online free speech, especially on matters related to sexuality, might permanently impair independent sex workers’ business model and put lives in jeopardy.

 

Conclusion

At this point, we cannot be absolutely certain of all of SESTA/FOSTA’s repercussions. The DOJ itself warned us that FOSTA’s wording was just too broad to prevent a destructive chain reaction.

What SESTA/FOSTA doesn’t do though is increase law enforcement’s ability to target sex traffickers. (One might note that nobody from Backpage has been charged with sex trafficking.) One could even argue that shutting down sites like Backpage and hindering conversations revolving around sex services from happening online will only make it more difficult to stop sex traffickers.

Furthermore, the fact that SESTA/FOSTA conflates consensual sex work with non consensual sex work lays bare the severe stigma that still exists around sex work. And, as one sex worker puts it: “Marginalized groups often act as Patient Zero for regressive new laws.”  

This is just one more piece of legislation that labels all sex work as morally reprehensible. FOSTA/SESTA has been shaped by a conservative worldview in which sex work is inherently bad as much as by a desire to combat sex trafficking, perhaps even more so. What we could use instead would be a humane set of laws that have sex workers’ safety in mind and doesn’t force them out of the public eye, into the shadows, where they incur great risks.  It is noteworthy that organizations like Amnesty International are pushing for the decriminalization of consensual sex work.

But as long as our public servants shudder at the idea of consensual sex work, we can expect the law of the land to continue ignoring sex workers’ needs in a way that will perpetually expose them to danger.

And if we can’t quite get to the point where sex work is accepted as just work, maybe we can at least try and avoid harmful prejudices to pave the way for restrictions on free speech and innovation.

 

 

Anne Errelis is a Staff Contributor at InQueery.