On April 11, 2018, President Trump signed into law two anti-trafficking bills which will not only censor consensual sex workers, but will also profoundly affect freedom of expression on-line.
The Stop Enabling Sex Traffickers Act and the Allow States and Victims to Fight Online Sex Trafficking Act (known as the SESTA-FOSTA package) make it easier for private citizens and federal and state prosecutors to sue and to criminalize website operators who are “knowingly assisting, supporting, or facilitating” sex trafficking. The hybrid law is particularly concerning for sex workers given that, in addition to expanded powers granted to prosecutors, it conflates sex trafficking with consensual adult sex work thus expanding the speech and behavior made illegal.
Together, SESTA-FOSTA has created an exception to section 230 of the Communications Decency Act of 1996 (CDA), a “safe harbor” law which prevents online platforms from being legally responsible for the content of its users, and which many consider to be the basis of freedom of expression and innovation on the Internet. (Ironically, the CDA was originally intended to regulate pornographic material, obscenity, and indecency online, but the US Supreme Court largely found that it violated the First Amendment’s free speech guarantee).
Soon after SESTA-FOSTA came into force, Craigslist shut down its entire “personals” section in fear of repercussions, and Backpage.com was shut down by the FBI, its CEO charged with a range of criminal offences. The shutdown of Backpage is particularly alarming given that the Department of Justice is already empowered to stop platforms that “facilitate” on-line prostitution via the Travel Act which was used to prosecute the male escort site rentboy.com in yet another disturbing example of the silencing of sexual speech online.
Given the size of user-generated websites like Facebook, YouTube, and Backpage, many argue that it is not feasible for Internet Service Providers and most online services that publish third-party materials to prevent specific types of content from being posted to their site. Given that SESTA-FOSTA will render them liable for this speech, ISPs and on-line hosts will likely censor large swaths of communication -- as demonstrated by Craigslist removal of its “personals” -- or refuse to host any user content, rather than spend money to monitor their on-line content.
The threat that SESTA-FOSTA poses to sex workers, to sexual speech, and to the sex trafficked, is potentially much greater than its benefits. Sex workers are safer now than they ever have been as a result of the Internet. SESTA-FOSTA has already changed this. FOSTA, in particular, is broad enough to apply to content sex workers share online to ensure safer working conditions as well as client screening tools such as the “bad” or “undesirable” client lists used by advocacy groups. VerifyHim, a screening site for online dating that sex workers use to verify clients has already shut down its advertising “newsreel.” Sex Professionals of Canada (SPOC) recently updated its website and described the shutdown of Backpage as “a crisis for sex workers who rely on the site to safely connect with and screen clients.” SPOC adds, “Because of the advertising restrictions which were implemented in the Protection of Communities and Exploited Persons Act in 2014, Canadian sex workers heavily relied on Backpage. Without BP, and until we can figure out new ways of working, many sex workers will be put in serious financial hardship and our safety will be severely compromised because we will all be taking risks we should not have to.”
The negative implications of SESTA-FOSTA extend to the trafficked persons that the acts aim to “save.” Given that “knowledge” of facilitating trafficking is grounds for liability, website operators will avoid content moderation entirely, thus allowing sex trafficking ads to continue being posted. If SESTA-FOSTA actually results in companies moderating their platforms aggressively, this could force sex traffickers and their victims underground thus potentially preventing the detection and assistance of those who are trafficking victims. As is well known in anti-censorship circles, the people who are most likely to be censored via protectionist laws are those who are marginalized in other aspects of society. Elliot Harmon, an activist with the Electronic Frontier Foundation, explains that anyone who runs a web platform or general interest discussion board and who wants to prevent advertisements for sex trafficking would probably program automated filters to restrict certain phrases and key words that these ads would use. Yet, without costly and necessary human review, these filters would also silence the very people trying to use the internet to get help or to tell their story. According to some anti-trafficking activists the websites where sex work takes place are often the best hope that trafficking victims ever have of being found by law enforcement, NGOs, or their families. In at least one recent report on the Backpage takedown, London police detective Michael Hay of the human trafficking unit, states: “We were looking for a possible sex trade worker who’s missing in Quebec, and we noticed that suddenly the website was no longer functioning.”
Whether SESTA-FOSTA will have an even broader chilling effect on on-line speech is yet to be seen. The fact that Reddit has since banned multiple subreddits and Microsoft, which owns Skype and Xbox, has banned “offensive language”, does not bode well for those concerned with the future of free speech on-line.