No Safe Harbors

Last year, two bills that aimed to reduce online sex trafficking passed the House and Senate and were signed into law. Fight Online Sex Trafficking Act (FOSTA) and Stop Enabling Sex Traffickers Act (SESTA) passed both the House and the Senate almost unchallenged, and even now, almost 6 months later, they are as controversial as they are well-meaning.

The latest laws amend the "safe harbor" rule of the internet, Section 230 of the 1996 Communications Decency Act, arguably one of the most important pieces of internet legislation. Section 230 states "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," meaning websites aren't responsible for the content of their users. Those who break federal and state sex trafficking laws are now excluded from immunity. FOSTA/SESTA also clarify the US sex trafficking law, making it illegal to facilitate, assist, or support sex trafficking knowingly. This new amendment effectively holds websites liable for the actions of their users where sexual content is concerned.

FOSTA and SESTA began as an effort to restrict sex trafficking on websites that offer online personal ads, specifically Backpage has long been known as a way for sex workers to find and filter clients by placing ads, though these advertisements were formally taken down in 2017. Backpage has been involved in several controversies regarding facilitation of illegal sex work and has drawn plenty of attention from law enforcement over the last few years. Previous lawsuits culminated in dismissal in late 2016, citing Section 230's safe harbor. Just a month later, a Senate investigation led by Rob Portman (R) found Backpage complicit in concealing ads for child trafficking.

One unfortunate pitfall of the bill is that it doesn’t differentiate between consensual and non-consensual sex work or illegal sex work with legal types. Sex work, while traditionally viewed as prostitution, is much broader and has grown to include any consenting, paid participant in the sex industry; from models and photographers that produce sexually explicit or implied photos, to cam girls, call girls, escorts, dancers, dominatrixes, and pornographers to name a few. In fact, the consensual sex industry has grown exponentially with the age of the world wide web, and many agree it has become safer as well. Unfortunately, just as practitioners and consumers of “the oldest profession” have found new and innovative ways to create and consume sexual material. This ultimately means, so have pimps and traffickers. The goal of both FOSTA and SESTA is to hold websites accountable for potential sex-trafficking operations but to do so; many fear they’ll further criminalize consensual sex work, and enhance risks for both sex workers and sex trafficking victims.

As many websites such as Backpage and Craigslist Personals shut down, sex workers and trafficking victims alike are forced to find other ways to gain clients. For many, this means turning to the streets, and the pimps that run them. Without a way to filter clientele online, create blacklists of dangerous clients, and circulate reviews, both sex workers and trafficking victims face dangers that in some cases, are life-threatening.

Sex work and trafficking disproportionately affect the most marginalized groups of society, including women, LGBTQ people, people of color, and those with disabilities. Many sex workers who relied on sites like find it challenging to secure other avenues of work. For those already-oppressed individuals, FOSTA/SESTA feels like a further stripping of protection and control. Numerous sex workers now fear for their safety and livelihood.

A November 2017 study conducted by West Virginia University and Baylor University economics and information systems experts titled 'Craigslist's Effect on Violence Against Women,' showed that cities which introduced a Craigslist Erotic Services site saw overall female homicide rate drop 17.4%. The study concludes the result could be due to fewer women resorting to street-based prostitution, a higher screening process resulting in repeat, low-risk clients, an increased digital fingerprint which leads to safer interactions. Another factor may include women turning to accessible sex work, empowering them to leave abusive relationships.

It is also worth noting that while Backpage executives face charges for obscuring child sex trafficking ads, no sex traffickers were indicted in the site's seizure. Law enforcement officials admit that without ads, it's more difficult to find sex traffickers and their victims. While combatting sex trafficking is undeniably a noble cause, critics of FOSTA/SESTA argue that criminalizing sex work does nothing to curb sex trafficking or illegal sex work, but instead drives it further underground.

While FOSTA/SESTA was enacted to protect trafficking victims, it’s had profound implications for the internet as a whole, while not doing much if anything to stifle sex trafficking. In the immediate aftermath of FOSTA/SESTA's passing, sites such as Craigslist and Reddit removed or censored large parts of their platforms, not because sex trafficking was necessarily taking place, but because they believed it would be too complicated to monitor for potential trafficking incidents. Many people have reported sexual photos and videos being removed from their Google Drive’s as the site systematically reviewed and deleted content in the wake of SESTA. Microsoft suddenly announced a change to terms and policies, including sifting through cloud storage and auto-detection filters which could ban Skype users for participating in consensual sexual activity using the platform — this could even include sexual encounters on Skype between couples in long distance relationships. Still, others have reported banks and payment sites like PayPal shutting down accounts that are used to collect payment for sexual services (whether or not the work is technically illegal). This imposed censorship and vague wording of the new laws lead many to question the future of the internet, and what kind of content censorship we'll see in the future.

Written by Tobi Newson

Image by Daniel Cicchelli