United States Appeals Court Hears Arguments Against SESTA/FOSTA

January 11, 2023

The Stop Enabling Sex Traffickers Act (SESTA) and Fight Online Sex Trafficking Act (FOSTA) have harmed victims of trafficking, the very individuals they were meant to protect, along with sex workers across the United States since they became law in 2018. For the past five years, human rights advocates, sex workers, and even law enforcement have worked hard to oppose SESTA/FOSTA.

Earlier this month, the U.S. Court of Appeals for the District of Columbia Circuit heard arguments challenging SESTA/FOSTA from the Woodhull Freedom Foundation, the Internet Archive, Human Rights Watch, massage therapist Eric Koszyk, and sex worker rights activist Jesse Maley, who filed suit as a group against the United States on the basis that the law is unconstitutional.

The group of plaintiffs filed its initial case in 2018 and has experienced a frustrating back-and-forth since then. After a series of dismissals and appeals, a panel of three appellate judges finally heard oral arguments at the D.C. Circuit Court on January 11, 2023.

SESTA/FOSTA amends Section 230 of the Communications Decency Act of 1996, which protects internet service providers from being held responsible for the actions of their users. SESTA/FOSTA makes it a federal crime to “own, manage, or operate an interactive computer service” with “the intent to promote or facilitate the prostitution of another person.” This creates an exception to Section 230 by holding platforms liable for content posted by their users that could be perceived as promoting the prostitution of others. State law enforcement can prosecute these cases at their discretion.

Unable to bear this new criminal and civil liability, many platforms have censored user content, and many users self-censored their content to avoid being de-platformed. One of the most prominent examples of this happened when Craigslist shut down its Therapeutic Services page, leaving people like massage therapist Eric Koszyk, a plaintiff in this case, without a means of advertising, screening clients, and scheduling appointments online.

It’s important to note that sex workers also use online platforms to create networks, advertise, screen and approve clients, and schedule appointments. SESTA/FOSTA shut these resources down, effectively making sex work more dangerous.

The supposed purpose of SESTA/FOSTA is to put a stop to online human trafficking. However, law enforcement actually relies on online platforms for evidence when investigating trafficking cases. By censoring certain language from the internet, SESTA/FOSTA scrubs away leads and evidence, making it easier for cases of human trafficking to go undetected.

Those challenging the bill argue it does not provide a specific enough description of what it means to “promote prostitution” or even who could be charged with owning, managing, or operating an interactive computer service, thus leaving it unclear what specific actions are being criminalized. The basis of their argument is that SESTA/FOSTA’s overly broad language violates the First Amendment requirement that restrictions of speech must be narrowly specific. The plaintiffs also argue that this vagueness violates the Fifth Amendment’s due process clause, which forbids the implementation of laws that do not reasonably define or explain the conduct that they make illegal.

Meanwhile, the main argument made by U.S. attorneys is that SESTA/FOSTA is simply an “aiding-and-abetting” statute intended to criminalize any individual who aids or abets another person engaging in prostitution. Yet the bill’s text never mentions either of these words.

This unclear use of language begs the question, what exactly does it mean to “promote” prostitution? Could the government hold the owner of a website liable for a post advocating for the decriminalization of sex work? Could this count as the promotion of prostitution?

The answer is unclear, which is why opponents of SESTA/FOSTA claim it is unconstitutional.

While the court’s final ruling can’t be predicted, decriminalization advocates agree that the events of the hearing appear encouraging.

When faced with the argument that SESTA/FOSTA is simply an aiding-and-abetting statute, Harry Edwards, a judge on the panel, said the following.

“In my mind, it's not an aiding-and-abetting law. We know how to write 'em when we want to. This doesn't look like anything that I understand to be an aiding-and-abetting law.”

SESTA/FOSTA has been actively harming sex workers for five years now. Should the court ultimately find SESTA/FOSTA unconstitutional, it will be a huge victory for human rights. Still, the judges won’t issue an official ruling for some time. Meanwhile, we must continue to defend the health and safety of sex workers by advocating for the full decriminalization of consensual adult sex work.

Audio of the full hearing is available here.

Last September, Decriminalize Sex Work (DSW) staff attorney Becca Cleary took the lead in authoring an Amicus Brief against SESTA/FOSTA, along with the support of eleven other organizations.

Visit DSW’s Take Action page to join the challenge against SESTA/FOSTA.

Image courtesy of @WoodhullFreedom on Twitter.

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United States Appeals Court Hears Arguments Against SESTA/FOSTA

January 11, 2023 The Stop Enabling Sex Traffickers Act (SESTA) and Fight Online Sex Trafficking Act (FOSTA) have harmed victims of trafficking, the very individuals they were meant to protect, along...
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SESTA/FOSTA Explained

October 18, 2022

SESTA/FOSTA refers to a set of laws passed by the Trump administration: The Stop Enabling Sex Traffickers Act (SESTA) and the Fight Online Sex Trafficking Act (FOSTA).

These laws effectively suspend Section 230 of the Communications Decency Act of 1996, which 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.

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.

How SESTA/FOSTA endangers sex workers

Sex workers once relied on the internet to create safety nets and protocols to keep themselves safe. They 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 legal 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 left people like Eric Koszyk, a massage therapist, without a means of advertising, screening clients, and scheduling appointments online.

Learn more about SESTA/FOSTA.

SESTA/FOSTA Explained

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DSW Challenges Constitutionality of Federal Law That Criminalizes Free Speech

September 15, 2022

Decriminalize Sex Work (DSW), joined by eleven other organizations working to ensure the health, safety, wellbeing, and human rights of sex workers and survivors of trafficking, filed a new Amicus brief supporting the appellants in a federal case challenging the criminalization of protected speech. The Stop Enabling Sex Traffickers and Fight Online Sex Trafficking Acts (SESTA/‍FOSTA), which became law in 2018, damage the longstanding “safe harbor” rule provided by Section 230 of the Communications Decency Act, which protects freedom of speech on the internet. Individuals depend on this freedom to work, socialize, and exchange ideas online.

Woodhull Freedom Foundation et al. v. United States argues that SESTA/FOSTA is an unconstitutional violation of the First and Fifth Amendments. The case, filed in 2018, has again reached the U.S. Court of Appeals for the District of Columbia. DSW’s Amicus brief details the historical and political contexts that have bred misguided anti-trafficking policies and laws built on the conflation of sex work and trafficking. The law’s failure to differentiate between the two has injured sex workers and survivors. “Both qualitative and quantitative evidence show that SESTA/FOSTA has caused immense harm to already marginalized and vulnerable communities, without advancing its purpose to combat trafficking. It must be repealed,” said Rebecca Cleary, DSW staff attorney, and attorney for Amici Curiae.

The brief also discusses the recently reintroduced SAFE SEX Workers Study Act (SSWSA), a bill proposed in U.S. Congress to study the harmful effects of SESTA/FOSTA. The introduction of this legislation demonstrates that lawmakers recognize the damage caused by SESTA/FOSTA, including many legislators who initially voted in favor of that bill. Amici also detail the ways in which SESTA/FOSTA’s restrictions on free speech limit advocacy efforts to advance the SSWSA, a critical and unconstitutional impediment to the democratic process.

Proponents of the law argue that fighting human trafficking, a heinous and violent crime, is worth broad internet censorship. However, the law, as written, fails to punish traffickers. Three years after it was enacted, the Government Accountability Office (GAO) found that it was an abject failure. Free speech, internet rights advocates, and law enforcement officials have protested the law. Instead of combating trafficking, SESTA/FOSTA:

* Endangers trafficking survivors and sex workers

* Impedes law enforcement’s efforts to find victims and prosecute traffickers

* Censors free speech on the internet and endangers the livelihoods of informal service sector workers

The brief concludes, “SESTA/FOSTA is the shining example of what happens when policymakers conflate sex work and human trafficking: trafficking numbers remain the same, victims get left behind, and those facing the greatest consequences are not traffickers but already marginalized communities.” Amici curiae include DSW, The Sex Workers Project of the Urban Justice Center, Freedom Network, Brooklyn Defender Services, The Erotic Laborers Alliance of New England, Old Pros, National Coalition for Sexual Freedom, New York Transgender Advocacy Group, Free Speech Coalition, Sex Workers Outreach Project Brooklyn, Gays and Lesbians Living in a Transgender Society (GLITS), and St. James Infirmary.

Elizabeth Nolan Brown covers the developments in the case, including DSW’s amicus brief in Reason here: There’s No Way FOSTA Isn’t a First Amendment Violation, Says Lawsuit.

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Amicus Brief

September 13, 2022:

Decriminalize Sex Work (DSW), joined by eleven other organizations working to ensure the health, safety, wellbeing, and human rights of sex workers and survivors of trafficking, filed a new Amicus brief supporting the appellants in a federal case challenging SESTA/FOSTA and its criminalization of protected speech.

Notice of Appeal

April 25, 2022:

The Woodhull Freedom Foundation, Human Rights Watch, Eric Koszyk, Alex Andrews, and The Internet Archive joined together to file an appeal against Memorandum Opinion of March 29, 2022, which dismissed their motion for summary judgment of FOSTA.