By Kenyamarie Mahone (PO ‘23)
FOSTA-SESTA: Its Origins
In April 2018, Donald Trump signed into law the Fight Online Sex Trafficking Act (FOSTA) and Stop Enabling Sex Traffickers Act (SESTA), frequently referred to as the FOSTA-SESTA package. The two bills, which had been merged into a single package in 2018, were brought forth to address the alarming proliferation of sex-trafficking via internet platforms. Specifically, FOSTA-SESTA added three key additions to internet and criminal laws which are intended to make it easier for prosecutors to hold companies accountable for sex trafficking facilitated through their websites. The law amended U.S.C § 230 of the Communications Decency Act of 1996 (CDA), defined “participation in a venture” in U.S.C §1591 of the Victims Protection Act (VPA), and created U.S.C § 2421 which makes it a federal crime to manage online platforms that “facilitate” or “promote the prostitution of another person.” Despite politicians’ well-intentioned aims of closing loopholes that provide safeguards for websites that facilitate sex trafficking, the political pressure and urgency surrounding the issue encouraged lawmakers to ignore many organizational concerns and opposition. The result was a bill that has failed to reduce sex-trafficking and made sex work more dangerous for an already vulnerable population.
FOSTA-SESTA and The Communications Decency Act
In 2017, facing growing public pressure to address sex-trafficking on websites like Backpage.com, the House Judiciary committee began crafting a bill to address sex-trafficking online. For years, commerce sites like Backpage.com and Craigslist had shielded themselves from liability to sex trafficking on their sites through the language of Section 230 which stated: “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.” In basic terms, Section 230 stated that internet companies or service providers are not liable to the accuracy or implications of content users posts–including ads for victims of sex-trafficking.
Films like I Am Jane Doe, which depicted the lives of women and their families who had been victims of sex-trafficking through Backpage.com, fueled public urgency for lawmakers to reform the CDA. FOSTA, the first of the FOSTA-SESTA package, was crafted by the House Judiciary Committee in 2017 alongside stakeholders like victim advocates, and sponsored by Congresswoman Ann Wagner (R-MO) in the House of Representatives. In August 2017, the bill was controversially introduced to the House with an addition that had not been discussed within the House Judiciary Committee–an amendment to section 230 of the CDA. This addition has proven to be one of the most consequential and controversial aspects of the law. The addition amended section 230 by adding the clarification that it does not limit the capacity of federal or state governments to file civil or criminal “claims for conduct that constitute sex trafficking.” In other words, internet companies could now be held liable for both the promotion of sex-trafficking, and sex-trafficking that occurs on their websites.
Internet Reform’s Cost for Sex Workers
By including this new language, FOSTA aims to prevent internet companies like Backpage, from using section 230 as protection against sex trafficking claims. However, this clarification has garnered concern from internet companies and sex workers across the nation. Organizations like the Center for Democracy and Technology have expressed concern at the impact this new law would have on free speech on the internet. Service providers will now be tasked with increased content moderation –a process that is often timely, and has been shown to create significant mental health challenges for moderators.
Similarly, sex workers and sex worker-advocates fear that this new law will force websites that provide resources like community health and safety warnings to shut down out of fear of being accused of “facilitating sex trafficking.” The same sites often used to facilitate sex trafficking, are also crucial spaces for sex workers to communicate information regarding clients to avoid, and safe sex practices–an important safety net for many autonomous sex workers. Moreover, approximately 70% sex workers also highlight how the elimination of many adult ad-services, such as Craigslist’s notorious “Personals” section or Backpage, have negatively impacted their financial situations. This financial insecurity has forced many consensual sex workers back to streets where they face enhanced danger at the hands of pimps who often use drugs and violence as tools to manipulate women.
Section-230 reform was meant to help prosecutors, and yet they rarely do
Politicians, facing extreme political pressure to address online sex trafficking, while perhaps well-intentioned, ignored concerns of important stakeholders like sex workers, and prosecutors. Because of this, in the place of comprehensive internet reform, American’s received a largely ineffective and hastily made bill. While FOSTA-SESTA has led to a 75% decrease in sex-trafficking ads and the seizure of websites like Backpage.com, this has not necessarily meant an increase in sex-trafficking-related arrests or charges. Though FOSTA-SESTA was initially intended to make it easier for attorneys to prosecute sex-trafficking, an analysis of the bill through the Columbia Human Rights Law Review found that sex-trafficking’s shift away from mainstream internet platforms has made it harder to find, and thus prosecute, sex-trafficking. In 2021, three years after the bill’s passing, the new law had only resulted in one federal prosecution.
In hindsight, FOSTA-SESTA, though well-intentioned, has seen little success even in its own measures and has even worsened the problem it was designed to address. While FOSTA-SESTA was designed to slow sex-trafficking and make it easier for lawyers to prosecute, it has actually made sex-trafficking harder to find and rarely brought to trial. Though FOSTA-SESTA has done little to charge sex-traffickers in courts, it has done lots to bar sex-traffickers from advertising their services, and accessing important health and safety information. Furthermore, the narrative surrounding FOSTA-SESTA has also contributed to what journalist Maggie McNeill refers to as a “war on sex work.” As criticism towards FOSTA-SESTA and its failure to combat sex-trafficking mounts, lawmakers will once again be forced to address comprehensive internet reform that will not only protect victims, while allowing sex-workers to safely continue their work.
