SESTA/FOSTA refers to a set of laws passed under the Trump administration: The Stop Enabling Sex Traffickers Act (SESTA) and the Fight Online Sex Trafficking Act (FOSTA). The laws effectively suspend Section 230 of the Communications Decency Act of 1996. Rather than preventing the online exploitation of trafficked persons, these laws have hurt the people they intended to help, pushing sex workers and trafficking victims into more dangerous and exploitative situations.
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What is “Section 230”?
Section 230 of the Communications Decency Act of 1996 stipulates that “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 simpler terms, it allows user-generated speech, such as comment sections and discussion boards, to remain uncensored.
How does SESTA/FOSTA work?
SESTA/FOSTA amends Section 230 by suspending its protection in cases where online platforms are perceived to be promoting prostitution.
Online providers can now be held liable for posts perceived to be advertising sex on their sites. State law enforcement can prosecute these cases at their discretion.
Social media platforms are forced to censor user-generated content to avoid legal repercussions.
Under SESTA/FOSTA, our right to freedom of speech online is at risk.
Why it matters
As implied by its name, the supposed intention of SESTA/FOSTA was to fight human trafficking online.
However, it fails to do so. In fact, SESTA/FOSTA has been linked to an increase in human trafficking and violence against sex workers.
It is important to note that the conflation of human trafficking with consensual adult sex work is extremely dangerous.
How SESTA/FOSTA endangers sex workers
Sex workers relied on the internet to create safety nets and protocols to keep themselves safe. Sex workers used online platforms to create networks, advertise, screen and approve clients, and schedule appointments from the safety of their own homes.
Without these resources, sex workers are quite literally pushed back onto the street, where they lack the means to plan client meetings ahead of time. This forces them into dangerous situations, making them more vulnerable to physical violence from un-screened clients and harassment by law enforcement.
How SESTA/FOSTA keeps victims of human trafficking in danger
Evidence shows that banning something does not end demand for it. By banning online sexual solicitation, SESTA/FOSTA doesn’t actually stop traffickers from trafficking, it just makes it easier for them to hide.
Law enforcement actually relies on online platforms for evidence in cases of human trafficking, and by censoring certain language from the internet, SESTA/FOSTA effectively scrubs away leads and evidence, making it easier for cases of human trafficking to go undetected.
The US Department of Justice itself testified that SESTA would make it more difficult for law enforcement to investigate and prosecute human trafficking cases.
How SESTA/FOSTA censors free speech on the internet
Internet censorship tends to be based on loose perception and opinion rather than fact. SESTA/FOSTA allows state and federal law enforcement the discretion to judge what is and isn’t “appropriate.”
While this has predominantly affected sex workers and their ability to work safely, suppression of free speech could affect anyone, should law enforcement individuals feel that their speech is inappropriate.
One example of this is Craigslist’s shutdown of its Therapeutic Services page, which effectively left people like Eric Koszyk, a massage therapist, without a means of advertising, screening clients, and scheduling appointments online.
SESTA/FOSTA Explained In-depth
In February and March of 2018, the U.S. Senate and U.S. House, respectively, passed Stop Enabling Sex Traffickers (SESTA) and Fight Online Sex Trafficking (FOSTA) Acts. President Donald Trump signed these bills into law the following month. The law, hereafter referred to as SESTA/FOSTA, damages the longstanding “safe harbor” rule provided by Section 230 of the Communications Decency Act of 1996, which protects freedom of speech on the internet.
Section 230 stipulates that “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.” Popularly known as “the twenty-six words that built the internet,” Section 230 allows user-generated speech and sentiments to remain uncensored, without holding platforms and ISPs responsible for that content. We depend on this freedom to work, socialize, and exchange ideas online. Platforms large and small are central to our right to assemble and share our beliefs in online communities.
Under SESTA/FOSTA, these rights are at risk. The act amends Section 230, suspending its protection where online platforms are seen to be promoting prostitution. Online service providers can now be held liable for sexual service advertisements posted on their sites. The amendment also allows state law enforcement officers to prosecute these cases. Together, reforms are intended to disrupt, fragment, and shrink the online prostitution marketplace. Online platforms must censor user-generated content or risk civil repercussions, resulting in limited freedom of speech and expression on the web.
What Impact Does SESTA/FOSTA Have?
Proponents of the law argue that fighting human trafficking, a heinous and violent crime, is worth internet censorship. However, the law, as written, fails to punish traffickers. Instead, it undercuts the most crucial statute protecting freedom of speech on the internet and endangers the safety, health, and human rights of consensual sex workers and trafficking victims.
Far from being a tool to combat sexual exploitation, SESTA/FOSTA has increased trafficking in the sex trade by shifting the balance of power towards pimps and individuals who seek to exploit sex workers for their own gain. A study, conducted by the Samaritan Women and published by the Institute for Shelter Care in the months following SESTA, reviewed the conditions faced by trafficking victims and sex workers before and after the implementation of the law. Based on comprehensive interviews with shelters and service providers, the study revealed an increase in trafficking case referrals since the passage of SESTA. Shelters also reported increased risks faced by their clients, including street-based violence, assault, and exploitation.¹ Sex trafficking in San Francisco shot up 170% following the passage of the law, as sex workers were forced back into street-based work, increasingly vulnerable to exploitation and violence. Pike Long, deputy director of St. James Infirmary, a peer-based clinic for sex workers, estimated that the number of street-based workers had tripled after SESTA/FOSTA.²
Higher levels of reported trafficking are not the result of successful prosecutions. Service providers divulged that law enforcement has virtually stopped referring trafficking cases to shelters because their primary mechanism for identifying victims and perpetrators — online advertisements — has been removed. Investigators were forced to abandon several pending investigations, and officers have had increased difficulty locating missing youth and organizing undercover investigations. One investigator from a state DPS office reported that “the shutting down of Backpage was like turning on a light in a dark room full of cockroaches, the cockroaches fled, now we are trying to find out where they fled to.”³
When online options for finding and screening clients are removed, sex workers are pressured to take more risks. SESTA has forced sex workers to operate on the street, where clients are harder to find and impossible to screen, and predators posing as clients are more likely to take advantage. Workers look for safety in third parties, putting them at risk to be solicited by abusive pimps. Service providers who were interviewed said they have witnessed “an uptick in the amount of violence/abuse occurring with victim/exploiter relationships” since the passage of the legislation.* Former bosses have begun to reach out to sex workers promising clients. With limited options, increasingly desperate people are more likely to accept.*
SESTA has inadvertently encouraged the abuse it sought to eradicate, as often happens when labor regulations are passed without consulting workers on how to best combat exploitation. If this law has had an effect on rates of trafficking in the United States, it has evidently only increased the risks sex workers and trafficking survivors face.
If It Doesn’t Fight Trafficking, What Does SESTA/FOSTA Do?
By endangering both sex workers and victims of human trafficking, SESTA/FOSTA has inadvertently encouraged the kind of abuse it sought to eradicate.
1. Endangers survivors and sex workers
SESTA/FOSTA has removed communication and safety networks for sex workers and other at-risk communities. A 2019 study from Baylor University estimated that the rollout of Craigslist’s Erotic Services (ERS) page, protected by Section 230, decreased the female homicide rate nationwide on average by 10-17% from 2002 to 2010. This reduction could be driven by multiple mechanisms: (1) the transition of street-based sex work to a more universal, indoor market; (2) the growth of market options, combined with more efficient, internet-assisted matches, leading to repeat business with safe clients and the stabilization of market actors; (3) ERS-enabled screening and communication between sex workers to cut back on risk; and (4) online platforms inherently deterring client violence because of digital documentation that makes discovery more likely. ERS closed its doors in 2010 after attorneys general from several states threatened to sue Craiglist for “promoting prostitution.”
Despite the assurance of multiple internet law actors that Section 230 protected them, Craigslist recognized that the crusade against ERS was not one based on law or reason but a prohibitionist crusade seeking to abolish prostitution. In their congressional testimony, Craigslist executives warned that by shuttering their site, law enforcement was losing a valuable ally in their fight against trafficking. After the shuttering of Craigslist, other websites that allowed erotic servicer advertisements filled a similar role. Increasing pressure on these sites began to compromise these safety mechanisms. The passage of SESTA/FOSTA has removed these solicitation and screening mechanisms and pushed workers out onto the street, increasing the violence and harassment faced by sex workers on a day-to-day basis.
2. Impedes law enforcement’s efforts to find victims and prosecute traffickers
SESTA has removed one of the most important avenues that law enforcement used for intelligence gathering and sting operations: the online platforms themselves. Law enforcement is frustrated by the impact of the legislation, and that it was passed against their better judgment.
The U.S. Department of Justice came out against the law before its passage. The DOJ authored a letter to Congress during the hearings concerning SESTA amendments, testifying that SESTA would make it increasingly difficult for law enforcement to investigate and prosecute trafficking cases. Trafficking still occurs, but without the internet advertisements previously relied upon, more and more cases go undetected. Online leads have been erased, and undercover operations have been stalled.
Shortly after passage, a new Child Abuse Prevention organization, the Prostasia Foundation, formed. The organization takes a more sex-positive approach to combatting abuse against minors, pushing back against laws that really target porn or sex work under the guise of child protection. Prostasia promotes a research-based approach to the prevention of child sexual abuse before it happens, to help give lawmakers access to the more accurate and impartial data on how to prevent this most serious of crimes without sacrificing access to safety and justice.
3. Censors free speech on the internet and endangers the livelihoods of informal sector service workers
SESTA/FOSTA impedes freedom of expression on the internet, allowing state and federal law enforcement the discretion to judge and criminalize sexual speech. Fearing prosecution, websites grow increasingly conservative about the content they allow to be posted. The burden of this censorship falls on the most marginalized and vulnerable members of our community.
Restrictions on speech affect a range of individuals, going far beyond sex workers, although that is the community that has felt the harms of censorship most acutely. Eric Koszyk, a licensed massage therapist in Portland, Oregon, submitted testimony in The Woodhull Freedom Foundation’s lawsuit of the United States government over SESTA. Koszyk previously used Craigslist’s Therapeutic Services section to advertise, screen clients, and schedule appointments based on geographic region and timing. Craigslist’s service was particularly important for Koszyk and his family as he was working various full-time jobs in multiple states over time while caring for his daughters. He required a platform with flexible scheduling options to earn maximum supplemental income. Between 2009 and 2017, Koszyk made between $4,500 and $14,000 annually as a massage therapist.
Since SESTA/FOSTA, Koszyk has been unable to advertise, screen clients, or flexibly conduct business. Craigslist not only shut down its Therapeutic Services page but repeatedly removed his ads from its Skilled Services section, and then blocked him from posting on the site entirely. Koszyk also reports that, to the best of his knowledge, no other massage therapist has been able to advertise via Craigslist since April 6, 2018. No alternative website offers comparable services that would allow Koszyk to reach a similar sized audience, grow and maintain his business, and screen for safe working conditions.
In a society increasingly marked by inequality, the internet represents access and freedom. It gives those excluded from mainstream industries and social channels a way to share their experiences and connect. SESTA endangers the very nature of this freedom, protected by Section 230, that has built the internet we rely upon today.
SESTA/FOSTA has severe implications for the rights and safety of our communities, and it must be repealed.
What Has the Response to the Law Been?
Woodhull Freedom Foundation et al. v. USA
On June 28, 2019, the Electronic Frontier Foundation filed a lawsuit on behalf of the Woodhull Freedom Foundation, Human Rights Watch, the American Civil Liberties Union, the Internet Archive, and several individuals against the federal government. The law is an unconstitutional violation of the First Amendment and the due process clause of the Fifth Amendment, which protects individuals from being denied life, liberty, or the pursuit of happiness without “due process of law.”
Read EFF’s one-page brief on SESTA/FOSTA here.
Although the law was passed by Congress for the worthy purpose of fighting sex trafficking, its broad language makes criminals of those who advocate for and provide resources to adult, consensual sex workers and actually hinders efforts to prosecute sex traffickers and aid victims.”
—The Electronic Frontier Foundation
FOSTA chills sexual speech and harms sex workers. It makes it harder for people to take care of and protect themselves, and, as an organization working to protect people’s fundamental human rights, Woodhull is deeply concerned about the damaging impact that this law will have on all people.”
—Ricci Levy, President & CEO of Woodhull Freedom Foundation
Timeline: The legal battle over both FOSTA & SESTA from 1995-today
This timeline provides context for understanding how the FOSTA & SESTA laws came into being and where they stand in the legal system today.
Notice of Appeal
The D.C. Circuit Court of Appeals Revives Woodhull’s Case
U.S. Reps. Khanna and Lee, Sens. Warren and Wyden Introduce the SAFE SEX Workers Study Act To Examine the Effects of SESTA
Woodhull and Other Plaintiffs Deliver Their Oral Arguments to the U.S. Court of Appeals
The Woodhull Freedom Foundation and Other Plaintiffs Appeal Their Case to the U.S. Appellate Court
The Electronic Frontier Foundation Files a Federal Lawsuit To Challenge the Constitutionality of SESTA
SESTA Is Signed Into Law by President Trump
Congress Passes SESTA/FOSTA
The Federal Government Wages an Investigation Into Backpage.com
ERS Shuts Its Doors
Craigslist Opens Its Erotic Services (ERS) Page
University of Pennsylvania Publishes a Study on Commercial Child Sexual Exploitation
Reno v. ACLU
Stratton Oakmont, Inc. v. Prodigy Services Co.
How Can You Help?
In order to support the Electronic Frontier Foundation’s challenge to this dangerous, discriminatory, and unconstitutional law, please reach out to your representatives through DSW’s Take Action page.
Important Document – Research Brief: After FOSTA-SESTA
This research brief analyzes data collected from service providers offering care to victims of sexual exploitation or trafficking. The objective was to assess whether the FOSTA-SESTA legislation is having an impact on shelter agencies’ referrals or operations in the real world.
*Increased funding and data would be needed to determine if this is caused by the implementation of SESTA/FOSTA specifically, but the correlation is confirmed.
NEWS ABOUT FOSTA-SESTA
Decriminalize Sex Work has gathered these articles about FOSTA-SESTA from across the internet.