Who Could Have Predicted SESTA-FOSTA Was Bad, Except For All The Sex Workers Who Said It Was?
Back in 2018, Congress passed a bipartisan piece of legislation called SESTA-FOSTA — the Stop Enabling Sex Traffickers Act (SESTA) and Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) — that was supposed to stop all of the evil online sex traffickers by amending Section 230 of the Communications Decency act to hold websites criminally liable if used to facilitate prostitution, and by making it a federal crime to use the Internet to facilitate prostitution. In fact, it was so bipartisan that the only senators who voted against it were Democrat Ron Wyden, the co-author of Section 230, and Republican Rand Paul.
Prior to this, the DOJ took down Backpage.com, a site where sex workers frequently advertised, believing that this would be an effective measure to stop child sex trafficking.
All of this sounded very good to a lot of people. Democrats and Republicans agreeing on a thing! Stopping sex trafficking! Protecting the children! Protecting women! Down with bad things, up with good things! Celebrities holding signs in support and dramatically talking about how this legislation was necessary to prevent people from ordering children online as easily as ordering a pizza.
It did not, however, sound very good to sex workers and their allies, who repeatedly tried to explain that this legislation would not do a damn thing to stop coercive sex trafficking or child sex trafficking and in fact make it more difficult to do so, while making their lives hell and putting them in danger. They explained that being able to use the Internet to solicit customers was much safer for them than being on the street because it allowed for vetting and allowed them to work independently. And it was. In the years following the debut of Craigslist's Casual Encounters section, female homicide decreased by 17 percent across the board in the US.
Wyden, too, in his remarks after the House voted to pass the legislation, said that SESTA-FOSTA "will make it harder to catch bad actors and protect victims by driving this vile crime to shadowy corners of society that are harder for law enforcement to reach."
Guess who was right?
According to report from the Government Accountability Office (GAO) that was required as a provision of FOSTA-SESTA, this very important legislation that we definitely needed to have has been used in literally one case since its inception and has also fractured the online sex market, driven bad actors further underground, which has made gathering evidence and prosecuting the people who were actually doing bad shit all the more difficult.
[G]athering evidence to bring cases against users of online platforms has also become more difficult. According to a 2019 FBI document, the FBI's ability to identify and locate sex trafficking victims and perpetrators was significantly decreased following the takedown of backpage.com. According to FBI officials, this is largely because law enforcement was familiar with backpage.com, and backpage.com was generally responsive to legal requests for information. In contrast, officials said, law enforcement may be less familiar with platforms located overseas. Further, obtaining evidence from entities overseas may be more cumbersome and time-intensive, as those who control such platforms may not voluntarily respond to legal process, and mutual legal assistance requests may take months, if not years, according to DOJ officials. Despite these investigative challenges, DOJ officials said they are committed to holding accountable those who control online platforms that promote sex trafficking.
Meanwhile, a report from Hacking//Hustling, a sex worker's collective, found that the legislation led to an increase in violence as well as economic instability.
While FOSTA-SESTA's purported purpose is to aid in the reduction of human trafficking, what we've witnessed within the scope of this study is that this law is contributing to the poverty that makes an individual more susceptible to labor exploitation and trafficking. By censoring the way that sex workers communicate with each other online, this law is also responsible for the dissolution of harm reduction tactics that allow workers to educate each other by sharing experiences with violent clients, exploitative management, and labor exploitation. This dismantling of an online-based sex work environment has created an increase in economic instability for 72.45% of the online participants of this survey, with 33.8% reporting an increase of violence from clients. 23.71% of online workers reported that their housing situation has changed since the removal of Backpage and the passing of FOSTA-SESTA.
While FOSTA-SESTA was presented as a law that increases the safety of those at risk of human trafficking, 99% of online respondents reported that this law does not make them feel safer. The ability to work independently online has reduced the need for sex workers in dire financial situations to work on the streets or through an exploitative agency or third party.
It is rather difficult to understand why it's illegal to have sex for money unless there is a camera present or it's a "sugar daddy" situation to begin with. It seems relatively obvious that decriminalizing prostitution would make sex workers safer, allow them to report crimes against them and also make it easier to prosecute those who are actually involved in coercive trafficking. Not to mention lessening the market for it. Also, there is significant evidence that the decriminalization of sex work is good for public safety and actually leads to decreases in actual sex trafficking. After Germany loosened its anti-prostitution laws, convictions for the kind of sex trafficking that remained illegal actually decreased.
Meanwhile, there's basically zero evidence that criminalizing sex work, particularly when it involves prosecuting the sex workers themselves, produces positive results. There's really no logical reason behind the criminalization beyond "people don't like it and don't want it to happen." It's certainly not to protect the sex workers themselves from "exploitation," because if that were true, they wouldn't be arrested for it in the first place. They wouldn't be thrown in jail, and they wouldn't end up with criminal records that could make it more difficult to find other forms of employment.
In 2019, Reps. Ro Khanna and co-sponsors including the perpetually prematurely correct Barbara Lee, Alexandria Ocasio-Cortez, Rashida Tlaib, Jan Schakowsky, Pramila Jayapal and more, along with Senators Ron Wyden and Elizabeth Warren (who voted for FOSTA-SESTA and has since changed her mind on it), proposed the SAFE SEX Workers Study Act, which would allow the NIH to study the impact of SESTA-FOSTA on sex workers themselves. That legislation hasn't gotten anywhere, but perhaps it will now have a chance. Perhaps Congress will be less likely to pass Lindsey Graham's equally bad EARN IT act, which would also harm sex workers in a similar fashion, while curtailing free speech.
Heck, perhaps someone with some sense will even propose legislation to do away with it entirely, though I am probably being too optimistic here. Once any crime-related bill is passed, particularly one meant to keep children safe, it's basically impossible to repeal because people think it keeps them safe regardless of whether or not it is actually true. But it would sure be nice.
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Robyn Pennacchia is a brilliant, fabulously talented and visually stunning angel of a human being, who shrugged off what she is pretty sure would have been a Tony Award-winning career in musical theater in order to write about stuff on the internet. Follow her on Twitter at @RobynElyse