SESTA-FOSTA: A Year Later

Protest march against the raid on Backpage, Minneapolis October 25, 2016 // Photo by Fibonacci Blue is licensed by CC BY 2.0

BY YEJI LEE

A pair of controversial bills, passed in the Spring of 2018, were supposed to make it easier to crack down on illegal online sex trafficking, but sex workers and their advocates say the legislation has instead put more sex workers in harm’s way.

President Donald Trump signed the two bills: SESTA, which stands for Stop Enabling Sex Traffickers Act, and FOSTA, which is an abbreviation for Fight Online Sex Trafficking Act, into law in the Spring of 2018. SESTA-FOSTA led to the end of sex ads on websites like Backpage and Craigslist that accepted ads from sex workers and escort agencies. The bills essentially negated Section 230 of the 1996 Communications Decency Act that exempts platforms for the user-generated content on their sites.

The bills were passed despite vocal opposition from sex workers who were never trafficked. They say that the legislation would limit access to clients, but more importantly, block opportunities for them to screen the clients online before meeting them.

“Our whole community was in crisis,” said Bella Robinson, the executive director and founder of COYOTE RI, which stands for “Call Off Your Old Tired Ethics,” an nonprofit organization made up of sex workers, former sex workers, and trafficking victims who advocate for safety in sex industry. “A lot of sex workers didn’t think about their rights if haven’t been arrested, but [after the bills] they’re paying more attention.”

According to data collected by COYOTE in the two weeks directly following SESTA-FOSTA, 60 percent of sex workers said they’ve had to take on less safe clients to make ends meet. Sixty five percent of participants also noted that within a few days after the bill’s passing, they had gotten offers from pimps or had bad experiences with clients they could not screen sufficiently.

One sex worker who participated in the survey recounted that she’s been trying to work mostly with regular clients since the bills’ passing. But she said it’s difficult to make ends meet that way. She reluctantly took on a new client, who took her to a home where she ended up being gang-raped.

“Smart sex workers know who their clients are and what they do,” Robinson said. But the government—“they’re not interested in protecting us.”

Both bills were controversial from their creation, but despite the huge effect that they had in the weeks following their passage, sex work advertisements seem to have bounced back online in recent months. They’re much more expensive, however, Robinson notes, and they’re not congregated on a single platform, as they used to be.

“If you work as an escort, the chances of getting caught are once in 10 years,” continued Robinson. “So, I’m more concerned about getting murdered — getting caught is a lottery in comparison.”  

It’s not just sex workers who are being affected by these bills, said Chris Bleaux of the Sex Workers Outreach Program. Some individuals who don’t even work in the industry are finding some of their personal content, which moderators deemed too sexual, taken down from sites. “On social media, folks who aren’t even sex workers are finding their accounts being shut down or blocked, just because they’re expressing themselves in a sexual way.”

Elliot Harmon, an activist and director at the Electronic Frontier Foundation, a digital rights organization that defends privacy and freedom of speech online, explains why this may be the case.

“Platforms are faced with this impossible task to remove the speech that is illegal and leave the rest,” Harmon said. But that’s an extremely difficult task, so they have to error on the side of taking a lot of things down just to be cautious. Pointing to the user guidelines of Facebook, Harmon said that sometimes rules are “worded so broadly that a post can be taken down even for someone expressing interest in sex. This is what happens when you raise the stakes so much.”

So far, sites are acting over-cautiously or shutting down completely, even though there have not been any prosecutions directly related to FOSTA-SESTA. What there has been, instead, Harmon notes, is a conglomeration of power from the larger tech companies, who have the resources to filter through content that would put them at liability under the new law. Smaller companies who don’t have those same resources find themselves shutting down or becoming inactive in order to avoid any major issues.

FOSTA-SESTA passed with bipartisan support a year ago and was backed by several organizations—some tech-related and others focused on fighting trafficking. One of the key supporters, the Internet Association, represents internet companies and was founded in 2012 by Google, Amazon, eBay, and Facebook, among other giants. The association expressed its support for the bills early on. President and CEO Michael Beckerman issued a statement in December of 2017 that it was dedicated “to combating sexual exploitation and sex trafficking online… [and] will continue to work with any lawmakers interested in addressing this important problem.”

“A lot of the irony is that what animated this bill in Congress and created political momentum to pass it was the current movement where people expressed animosity to sites like Facebook and Twitter,” Harmon continued. “I think this animosity led to them passing a bill that [gave] those companies getting more power.”

But whether the bills have had a noticeable effect on sex trafficking is unclear. Data on trafficking is scarce, and even when available, sometimes inaccurate. That means a lot of the stated effects of the bill, both positive and negative, are anecdotal. A 2016 study from the Justice Department states that there are an estimated 9,000 to 10,000 underaged individuals working in the sex industry; it also concluded that the average age of entry for juveniles into sex work was 15.8 years. To be careful, the study also noted that the estimated number could be off by a significant amount: the numbers could be as low as 4,500  and as high as 21,000.

Key political sponsors of the bills claimed a large victory. In a video posted July of last year by Republicans on the House Judiciary Committee, supporters of the bill spoke about the seriousness of sex trafficking with intense music in the backdrop. “We have shut down nearly 90 percent of the online sex ­trafficking business and ads,” Rep. Ann Wagner said in the video. Upon further investigation by The Washington Post, however, the data seemed unreliable— the numbers tracked ads between January to April of 2018, but the biggest drop in sex-related advertising as a whole (without a distinction between ads promoting trafficked or consensual workers) seemed to have occurred before the bills were passed into law in April.

As Robinson of COYOTE pointed out earlier, the ads have bounced back — albeit on different platforms. By the time the video was posted by Republicans on the House Judiciary committee as well on July 20 of last year, around 50 percent of the ads had come back, though this number is not mentioned in the clip.


YEJI LEE is a Korean Canadian who’s lived back and forth between the two countries her entire life. Yeji has worked at publications based in Paris, Seoul, and Washington D.C. and specializes in international news with a focus on the Korean Peninsula. Twitter: @jesse_yeji

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