The Anti Sex Bills

Disclaimer: This piece argues against a set of anti-sex trafficking laws, known as FOSTA and SESTA. This is not meant to be read as pro sex-trafficking but rather as an examination of the ways that these laws have not helped combat sex trafficking, the ways in which they have eroded internet freedoms, and how they put the consensual sex-work community at risk.

The Problem: Sex Trafficking

What is sex trafficking? Basically, sex trafficking is any forced sexual exploitation. There is a critical distinction between sex trafficking, and consensual sex work. There are many people, men and women, who are part of the sex work industry. Many of them chose to work in this industry in a variety of professions. These people are not trafficking victims. Some of them did not choose to do this work, but are being forced to do so under threat of violence, deportation, or starvation. These people are trafficking victims. It is very important that you understand this distinction before we continue. When I reference trafficking victims I mean only those people who are being exploited (other sources, as you will see, do not always observe the distinction).

Sex trafficking is an international issue, and the United States is not immune. In 2017, there were 661 sex trafficking cases open in the Unites States, according to the Global Slavery Index. The majority of sex trafficking victims are female, and of those 661 open cases, 65.8 percent involved the trafficking of children. Human trafficking of all kinds has been going on for all of history, and to this day there are tens of thousands of people performing forced labor of all kinds in our country. The invention of the internet has brought a new layer of complexity to combating trafficking, especially sex trafficking. As of 2017, 84.3 percent of traffickers used the internet to find buyers for the forced sexual services of their victims. Non consensual sex work is, at its core, continual sexual assault, which is horrific to think about. It makes sense that the government has been trying to crack down on sex trafficking, so let’s look at how they’re going about it (See link 1)

The Prologue: Legislative History

The laws I’m interested in today are a pair of bills referred to as FOSTA/SESTA, or the Allow States and Victims to Fight Online Sex Trafficking Act and the Stop Enabling Sex Traffickers Act. These bills were passed nearly unanimously in 2018 with a vote of 97-2, only Ron Wyden and Rand Paul voted against it. What the FOSTA/SESTA duo does is complicated, but it’s based around weakening protections for internet services that were passed in 1996 (See link 2). It took me a lot of research to figure this all out, so let’s walk through it:

It starts with Section 230 of the Communications Decency Act, which passed in 1996 and protected internet providers from civil liability with regards to the usage of their services. So basically, internet providers could not be held responsible for the actions of their users, though they were still liable for criminal and intellectual property violations (See link 3).

In 2014 the SAVE (Stop Advertising Victims of Exploitation) Act was passed, which made it illegal to knowingly “advertise commercial sex acts” involving a minor or non-consensual party, and to benefit financially from such advertisement (See link 4).

In 2017, efforts to combat online sex trafficking ramped up, especially attacks on the “personals” site Backpage. Don’t get me wrong, ending online sex-trafficking would be an amazing thing, and it is someting we should work towards. Therefore it makes sense that when Republican senator Rob Portman wrote a scathing Op-Ed condemning Backpage for “knowingly run[ing] ads selling underage girls” it seemed to be an obvious bipartisan issue, something we could all agree on (See link 5 for the whole article). Enter FOSTA and SESTA.

The Solution? FOSTA/SESTA

When FOSTA and SESTA were introduced to Congress, FOSTA in the House and SESTA in the Senate, they passed with bipartisan support and cosponsors from both sides of the aisle. So what do these bills do?

Basically, they hold online platforms responsible for the content of their users. They clarify that sex-trafficking counts as a criminal violation that internet providers are not protected from under Section 230. This means that individuals or states could sue or bring criminal charges against an internet provider for being complicit with or enabling sex-trafficking, even if it was not done “knowingly”. It also commits to “vigorous enforcement” of federal criminal and civil law regarding sex trafficking (See link 6).

Good In Theory: Initial Opposition

While they were supported by Congress and a wide range of advocacy groups there were a few key groups who opposed the bills from the beginning. The first, and arguably the most influential detractor was the Department of Justice. The DOJ brought up few specific concerns about the bill in a letter they wrote to the Chairman of the US House of Representatives Committee on the Judiciary on February 27, 2018 (See link 7 for the whole letter).

One) The DOJ believed that section 2421A of the bill, which refers to the “Promotion of Prostitution” is too broad, because it would also apply to situations of “minimal federal interest”. They give the example of an individual using a cell phone to facilitate “local commercial sex transactions for consenting adults”. They wanted Congress to specify that this bill targeted traffickers using “interactive computer services” specifically.

Two) They objected to the revision of 18 United States Code number 1591, which would define “participation in a venture” to ensure that allowing sex traffickers to use your site counted. The DOJ argued that it was already defined well enough, and that adding additional definition would only make it harder to prosecute people, because there would be more things to prove.

Three) The final major objection was a constitutional concern. Because the language in the bill states that the changes would apply whether the act occurred “before, on, or after such date of enactment,” the DOJ said it was in violation of the Constitutions Ex Post Facto clause. This rule says that you can’t be punished for something that was not illegal when you did it.

The DOJ was not the only opponent of this bill. It was also opposed by the Internet Frontier Foundation, who filed a lawsuit in June of 2018 on the grounds that this law restricted free speech (See link 8). The ACLU sent a letter with suggested improvements to the bill, but closed it with “notwithstanding these changes, the bill remains fundamentally flawed.” (See link 9). The Sex Worker Outreach Project also spoke against it, arguing it was a disguised censorship bill.

The Results: The Bad and The Ugly

Since the bill has been enacted, many websites affiliated with the sex industry have shut down, including Craigslist’s personals section and Backpage. It has also affected social media sites such as Tumblr and Reddit, both of which were historically sex positive, but have since tightened up their indecency policies, because they can now be held responsible for anything on their platform. Instagram, Facebook and Twitter have all cracked down as well, deleting accounts, hiding hashtags and adding stricter guidelines about what is and isn’t “appropriate”.

It is worth it to note that this policy does not affect everyone equally. While celebrities and conventionally attractive models can often get away with posting “artful” nude photos, many plus sized models, trans models, non-gender conforming users and less popular accounts will see photos with the same amount of nudity reported and/or removed. (I don’t have an official citation for this but I have watched it happen on Instagram with people I follow.)

This is bad for two reasons. The first is that it sets a precedent of government control over internet usage, which could easily become very scary (hello free speech and free press, lookin’ at you). Additionally, and as we are already seeing, censorship is a slippery slope. Banning sexual images and sexual language is an easy way to ban conversation about birth control, about consent and about how to have safe sex in general. This in turn helps to promote a pro abstinence agenda (you know, the one being pushed in schools), and increase the policing of women’s bodies.

Speaking of policing women’s bodies, the second main issue with online censorship is that it has stripped consensual sex workers of online resources that helped keep them safe. Remember the important distinction? There is a difference between sex trafficking and consensual sex work. This bill does not distinguish between the two, using “prostitution” and “trafficking” interchangeably. This is very wrong. Consensual sex workers are not trafficking victims, but they are being victimized by this bill.

By taking away the online resources that consensual sex workers were using to advertise and vet clients, many are being pushed back onto the streets to look for work. Under existing prostitution laws in the US, being seen talking to a potential client, carrying condoms or carrying too much money can be an arrestable offence, with charges ranging from “loitering with the intent of prostitution” to a felony trafficking charge. (Often, the deciding factor in which charge gets pressed is simply the race of the person arrested. Are you surprised? See link 10 for more information). Without the ability to advertise online, many sex workers report being approached by often-exploitative “managers” offering to help them find clients. This combination of pitfalls stood out to Tamika Spellman, a sex worker and policy and advocate associate at Helping Individual People Survive (HIPS), a DC based non profit that aims to serve and advocate for the sex worker community. When asked about FOSTA/SESTA in an interview with Blavity (See link 11) she said,

This law has made me two things I have never been in my life: a trafficking victim and a trafficker.
Tamika Spellman

The Conclusion: These Bills Suck

The number one reason I argue against these bills is that they have not done what they said they were going to do. They flew through Congress as anti-trafficking bills, but as the Department of Justice suggested, they have only made things harder. Sgt. John Daggy, an undercover vice officer in Indianapolis sums up the problem in an interview with The Indy Channel (See link 12):

We’ve been a little bit blinded lately because they shut Backpage down,” Daggy said. “I get the reasoning behind it, and the ethics behind it, however, it has blinded us. We used to look at Backpage as a trap for human traffickers and pimps.
Sgt. John Daggy

The second reason I argue against these bills is because of their anti-sex worker language and consequences. These bills fail to make a distinction between consensual and forced sex work, which is damaging because it fails to recognize the legitimacy of consensual sex workers’ profession, and increases stigma surrounding sex work. In addition the bills have stripped consensual sex workers of safety measures like screening clients and bad date lists, and forced many back onto the street, making their lives much more dangerous. These bills have left consensual sex workers vulnerable to increased stigma surrounding their work, violence from clients, and increased persecution by police, effectively victimizing one group in the name of saving another.

The final reason I argue against these bills is the increase in internet censorship they have allowed and encouraged. The censorship of “inappropriate” or “adult” content across the internet has increased dramatically since the passage of these laws. Just like the rest of the effects of FOSTA/SESTA, it’s a move that is meant to “protect women from exploitation” and has instead increased the policing of women’s bodies to an absurd degree (Please note, when I use the word “women” I mean all women cis, trans, or otherwise). The removal of sex-related conversations, images and comments from Instagram, Facebook, Twitter and Tumblr mirrors the removal of sex-education from our schools and sex-related healthcare from our communities.

The fact is, in practice these bills are not anti sex-trafficking, they are anti sex. The censorship resulting from FOSTA/SESTA has affected sex workers, sex positive bloggers and sex educators, while failing to combat sex-trafficking. This War on Sex ultimately becomes a War on Women, as women bear the brunt of the consequences of an anti-sex society. While the consequences of sex for men have always remained the same (an STI), the consequences of sex for women vary wildly depending on their knowledge and use of birth control, their access to prenatal care and/or abortion, and their community’s opinions on their decision (remember The Scarlet Letter?).

While sex trafficking is a real and dangerous problem in America, FOSTA/SESTA is not the solution. I worry that since FOSTA and SESTA passed with so much bipartisan support, that there is no longer any legislative urgency about this topic. And we need that urgency. But we need urgency that is backed by knowledge and an understanding of the situation. We need a solution that takes into account the distinction between consensual sex workers and trafficking victims, and can help one without victimizing the other. We need a solution that isn’t based around censorship and liability. As we enter into this election cycle, I urge you to keep this issue in mind. It isn’t one that politicians bring up often, but there are big things at stake here — women’s rights (which should always include sex worker rights) and freedom of expression. So even if they don’t want to talk about it, ask. There has never been a better time to ask hard questions.

I would like to thank Elle Stanger of Stripper Writer for prompting me to read about FOSTA/SESTA in the first place. She does phenomenal work, and I encourage you to look her up.