Members of Congress Introduce Bill To Study the Impact of SESTA/FOSTA

March 3, 2022

Representative Ro Khanna (D-CA), Representative Barbara Lee (D-CA), Senator Elizabeth Warren (D-MA), and Senator Ron Wyden (D-OR) re-introduced the Safe Sex Workers Act (SSWA) to the House and Senate on International Sex Workers Rights Day. The SSWA directs the US Department of Health and Human Services to study the impact of SESTA/FOSTA, signed into law by President Donald Trump in 2018, on sex workers and related communities. Initially proposed in 2019, the SSWA is a product of years of activism by sex worker rights advocates and allies, calling for the inclusion of impacted communities in policy development around sex work and related issues.

SESTA/FOSTA continues to have an incredibly harmful impact on sex worker rights and safety. The rise of websites like Backpage and Craigslist’s Erotic Services (ERS) page in the early 2000s had allowed sex workers who previously engaged in street-based work to migrate online. A 2018 survey out of the University of Leicester found that online sex work allowed for much more control over working conditions and reduced the risk of physical attack. Workers surveyed said that the internet allowed them to screen clients for safety and to engage in peer support. Over 80% of those surveyed said the internet improved their quality of life. “The types of crimes that sex workers are experiencing have changed,” reported Teela Sanders, professor of criminology and lead researcher. “There was a much lower incidence of violent crime [including] sexual and physical assault than in other studies. But there [were] high levels of digitally facilitated crimes.” In a different study looking at the regional rollout of Craigslist’s erotic services (ERS) page, researchers out of Baylor University found that ERS had decreased the female homicide rate by 17% on average.

But not everyone viewed these developments positively. The conflation between consensual adult sex work and human trafficking in laws and general rhetoric sparked misguided fears that online content would lead to the proliferation of trafficking in commercial sex. A moral panic spurred the passage of SESTA/FOSTA. Section 230 of the Communications Decency Act prevents online platforms from being prosecuted for the content that third parties post on their website. Proponents of the law claimed that limiting Section 230 protections for any site hosting sexual content would scrub commercial sex from the internet and therefore online sexual exploitation would be squashed.

Sex workers, service providers, free-speech activists, and even law enforcement warned that the law would have unintended consequences for both sex worker rights and investigations into online trafficking. Websites hosting sexual content had established relationships with law enforcement to combat trafficking. Many voluntarily reported content that showed signs of abuse or allowed police to comb posts themselves. With the passage of SESTA/FOSTA, many of these platforms either shut down or wiped any content of a sexual nature from their websites for fear of prosecution. As a result, law enforcement lost many trails of evidence they had been following and were forced to abandon investigations.

When sex workers lost access to online platforms to advertise their services, the benefits to health and safety that these sites provided were also lost. A report by the Samaritan Women Institute for shelter Care interviewed service providers for survivors of human trafficking and found that SESTA/FOSTA had failed to address trafficking. If anything, the law had pushed more individuals back into street-based sex work, leaving them more vulnerable to violent crime. Making it harder for sex workers to find and vet clients also leaves them at greater risk for exploitative relationships and possibly trafficking, the report found.

The Safe Sex Workers Act (SSWA) asks the United States government to do what it should already feel obligated to — examine the impact of written law on the lived experience of individuals, as well as its success in meeting its stated intentions. Analyses of SESTA/FOSTA like the report published in the Columbia Human Rights Law Review by Kendra Albert, Elizabeth Brundige, and Lorelei Lee, have overwhelmingly concluded that the law impedes trafficking prosecutions and endangers human rights and safety. The SSWA has been endorsed by over seventy anti-violence, public health, technology, civil and human rights organizations including AIDS United, Center for Democracy and Technology, Transgender Law Center, National Center for Transgender Equality (NCTE), Human Rights Campaign, Lambda Legal, and more. “Sex workers — far too often overlooked by policy analysis — have long been among the communities most impacted by HIV,” said Jesse Milan Jr., president, and CEO of AIDS United.  “Research and community input is needed to understand the harmful effects of recent policies on sex workers and consequently on ending the HIV epidemic. The SAFE SEX Worker Study Act is a piece of legislation that will enable such vital research.”

We ask that readers reach out to their elected representatives and urge them to support this important bill.

Lambda Legal Staff Attorney Puneet Cheema in Rep. Khanna's video announcing the bill's introduction. (Lambda Legal, 2022)

Lambda Legal Staff Attorney Puneet Cheema endorses the bill in Rep. Khanna's video announcing the its introduction. (Lambda Legal, 2022)

AIDS United supports the SAFE SEX Worker Study Act

AIDS United released a press release in support of the bill. (AIDS United, 2022)

DSW Newsletter #34 (March 2022)

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Members of Congress Introduce Bill To Study the Impact of SESTA/FOSTA

March 3, 2022 Representative Ro Khanna (D-CA), Representative Barbara Lee (D-CA), Senator Elizabeth Warren (D-MA), and Senator Ron Wyden (D-OR) re-introduced the Safe Sex Workers Act (SSWA) to the House and Senate on International Sex Workers Rights...
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Members of Congress Introduce Bill To Study the Impact of SESTA/FOSTA

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DSW Newsletter Archive

Backpage’s Mistrial

September 14, 2021

The founders of Backpage.com, Michael Lacy and James Larkin, are being tried in federal court, along with four other employees, for knowingly selling prostitution advertisements on the website. But presiding Judge Susan Brnovich for the U.S. District Court for the District of Arizona declared a mistrial, after the prosecution repeatedly made references to “child sex trafficking,” while none of the defendants have been charged with that crime. Six backpage employees have pled not guilty to facilitating prostitution, while Larkin, Lacy, and two others also stand accused of money laundering.

Before the trial, Judge Brnovich said she would permit the prosecution to present evidence that trafficking had occurred on the site, so long as the prosecution did not focus on the details of the abuse. Brnovich ruled that the repeated lingering on such details by both the prosecution and their witnesses garnered an entirely different “emotional response from people,” and compromised the integrity of the trial. Any trafficking that occurred on the website is devastating, but as the defendants have not been charged with facilitating that crime, the details of its occurrence are irrelevant to the case and may influence the decision.

The federal government initially seized Backpage in April of 2018, following the passage of SESTA/FOSTA, which limited the Communications Decency Act Section 230 protections for internet platforms where advertisements for sex work were listed. The Department of Justice’s announcement of Backpage’s seizure labeled the site, ​​“the Internet’s leading forum for prostitution ads, including ads depicting the prostitution of children.” SESTA was passed with the intention to fight online trafficking by targeting platforms that host commercial sexual content. Anti-trafficking advocates, service providers, as well as law enforcement officers have long been dubious of SESTA achieving its intended outcome. If anything, the law endangers consensual adult sex workers by removing the tools they used to find and screen clients, forcing many workers who used the internet to protect themselves, back onto the streets. SESTA has also been challenged in a federal lawsuit, brought by the Woodhull Freedom Foundation. The lawsuit charges that the law interferes with freedom of speech online. To make the matter worse, law enforcement and service providers also worry that the censoring of major platforms caused by SESTA may have actually increased the risk of trafficking by removing evidence trails that were previously used to detect and prosecute traffickers.

Backpage’s mistrial highlights a critical and increasingly salient issue in the debate over the best policies on sex work: Those who advocate for the criminalization of consensual adult prostitution frequently conflate it with human trafficking. Sex work is delegitimized, and workers are reduced to victims with no agency or voice in their own stories. Not only is this narrative of conflation inaccurate, but it can also be detrimental to the health and safety of communities. Criminalizing sex work does not help address human trafficking. In fact, it misdirects critical resources at enormous cost to those who are being exploited. The prosecution capitalized on this narrative, highlighting only the cases of exploitation on Backpage, and ignoring the consensual commercial exchanges that made up the bulk of its content.

The question of whether or not the defendants did facilitate prostitution remains to be answered. Larkin and Lacy maintain that Backpage used various tools to detect and delete ads for sex. They also argue that any content posted on the site was protected by the first amendment and routinely cooperated with law enforcement to facilitate sex trafficking investigations.

backpage

(Jackie Hai, 2021)

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DSW Newsletter Archive

Sex Workers Win Major Decision in Federal Court

Decriminalize Sex Work
www.DecriminalizeSex.Work
Contact Kaytlin Bailey, Director of Communications
[email protected]

NEW YORK, NEW YORK
January 27, 2020

Sex Workers Win Major Decision in Federal Court

Sex workers and their allies have won an important victory in their ongoing constitutional challenge to FOSTA/SESTA, a federal law that is having a destructive impact on the health and safety of sex workers and their communities.

“This is the most important case pending in federal court,” said Kaytlin Bailey, communications director for DSW. “Sex workers are feeling the brunt of this law now, but so are harm reduction advocates, massage therapists, and human rights organizations.”

At issue is the FOSTA/SESTA law, enacted in 2018, which imposes severe criminal penalties for the operators of web sites that allow discussions of prostitution, which caused many dating web sites to close.  As a result, sex workers who had been using websites to schedule and screen their clients have since resorted to more dangerous tactics, such as soliciting on the street or relying on third parties such as pimps.

“Allowing sex workers to schedule and screen their clients online improves the health and safety of our communities,” said Melissa Broudo, DSW’s staff attorney who coordinated DSW’s amicus brief supporting the plaintiffs.

Studies show that when Craigslist Erotic Services allowed adults to negotiate consensual sex with each other, the female homicide rate dropped by 17%. When sex work was decriminalized in Rhode Island from 2003 to 2009, reported rapes dropped by 30% and gonorrhea by 40%.

“The evidence couldn’t be more clear,” said Broudo. “Allowing adult consensual sex workers and their clients to connect online makes the work safer.”

On Friday, January 24, the U.S. Court of Appeals for the D.C. Circuit ruled that the plaintiffs’ case can proceed to trial, where a federal judge will decide whether FOSTA/SESTA interferes with the constitutional rights of website operators and their users.

“Sex workers have been waiting for our day in court for over 100 years,” said Bailey.

The D.C. Circuit Court of Appeals Revives Woodhull’s Case

January 24, 2020:

The Court Orders That the Constitutional Challenge of SESTA/FOSTA Be Sent Back to the District Court for a Ruling on the Merits of the Case

The court found that two of the four plaintiffs in the case have adequate standing to pursue claims. Alex Andrews, through her website Rate That Rescue, adequately established an Article III injury-in-fact because she has alleged intention to engage in conduct with constitutional interest (involving speech).

Eric Koszyk, massage therapist, also established Article III standing. Because of SESTA/FOSTA, Craigslist “Therapeutic Services” shut down, directly negatively impacting Koszyk’s ability to find clients and make a living. In Koszyk’s case, there is also redressability if SESTA/FOSTA were to be repealed.

Opinion: Sex Workers Win Major Decision in Federal Court

NEW YORK, NEW YORK
January 24, 2020

Sex workers have been waiting for our day in court for over 100 years. And finally, we’re going to get it. On January 24, sex workers and their allies won a significant victory in our ongoing constitutional challenge to FOSTA/SESTA, a federal law that attempts to erase the oldest profession from the Internet.

The U.S. Court of Appeals for the D.C. Circuit ruled that the plaintiffs’ case can proceed to trial, where a federal judge will decide whether FOSTA/SESTA interferes with the constitutional rights of website operators and their users. If you use the Internet, this law affects you. And if people’s health and safety is important to you, you should be siding with the sex workers in this case.

FOSTA/SESTA, enacted in 2018, imposes severe criminal penalties for web site operators that allow discussions of prostitution. The law is being broadly interpreted to include massage therapists, harm reduction service providers, and sex worker rights activists.

Sex workers who had been using websites to schedule and screen their clients have since resorted to more dangerous tactics, soliciting on the street or relying on third parties, such as pimps. Some are using offshore platforms on the dark web that, unlike Backpage and Craigslist, do not cooperate with law enforcement.

Prohibition doesn’t work. The more we push the sex industry underground, the more dangerous it becomes. A meta-analysis reviewing 30 years of data published by the London School of Hygiene & Tropical Medicine and John Hopkins University found overwhelming evidence that repressive policing of prostitution causes less health and safety among sex workers. We cannot help people we are trying to eradicate.

FOSTA/SESTA attempted to erase places on the Internet that sex workers had been using to mitigate the risks of our trade for years. Immediately after this law took effect, the St. James Infirmary in San Francisco reported a 700% increase in street-based prostitution. Sex workers and harm reduction advocates have reported a marked rise in homicides, suicides, overdoses, and desperate people doing desperate things to survive.

Studies show that when Craigslist Erotic Services allowed adults to negotiate consensual sex with each other from the privacy of their homes, the female homicide rate dropped by 17%. When sex work was decriminalized in Rhode Island from 2003 to 2009, reported rapes dropped by 30% and gonorrhea by 40%.

Allowing sex workers to find and negotiate with potential clients online before exposing ourselves to risk reduces violence and STDs. This is not conjecture or theory — studies prove what sex workers have been saying for a century.

On January 25, 1917, 300 prostitutes in San Francisco marched in the street to protest the imminent eviction of the brothels where they lived and conducted their work. They told the moral reformers and politicians that eviction would only make their lives worse and their work more dangerous. They were right. And on January 24 — 103 years later — federal judges gave sex workers and our allies the chance to make our case in court.

-Kaytlin Bailey, Director of Communications for Decriminalize Sex Work