By Alex Tigchelaar
In late March of 2018, US Congress passed FOSTA/SESTA, the Fight Online Sex Trafficking Act and the Stop Enabling Sex Trafficking Act. As Tech Policy Corner reported,
SESTA would amend Section 230 of the Communication Decency Act [CDA] of 1996 — the law that, more than any other, made today’s Internet possible. Section 230 ensures that, in general, users who post illegal content are held liable for that content rather than the platforms where they post it. As introduced, SESTA would make any website that hosts third party content liable for “knowing conduct” that could “assist, support or facilitate” sex trafficking. Merely knowing that your platform could be used by sex traffickers, would expose you to liability. While recent changes to the bill slightly narrow this language, a platform may still be liable for trafficking activity it is unaware of and cannot control.
With the FOSTA/SESTA package awaiting nothing more than a signature from U.S. President Donald Trump, the international sex working community’s attention was turned, once again, to how damaging the conflation of sex work to sex trafficking is, both for sex workers, and those who have been sexually exploited through trafficking. In 2017, a study by Scott Cunningham, Gregory DeAngelo and John Tripp examined statistics gathered during the years the Craigslist erotic services section was active and found, “the first evidence that the introduction of an online clearinghouse dramatically reduced the female homicide rate.” Losing online advertising platforms compels many workers into outdoor sex work, putting them in unfamiliar, highly coded systems and locations. This forces sex workers into more routine contact with hostile law enforcement and unscreened predators posing as clients. Furthermore, it is contended that rather than assisting women and girls who are trafficked for the purpose of sexual exploitation, the loss of these platforms further invisibilizes them.
Freedom USA, “the largest coalition of experts and advocates providing direct services to survivors of human trafficking in the U.S.” made this statement:
The current legal framework encourages websites to report cases of possible trafficking to law enforcement. Responsible website administrators can, and do, provide important data and information to support criminal investigations. Reforming the CDA to include the threat of civil litigation could deter responsible website administrators from trying to identify and report trafficking.
Removing “exploitation from view,” argues Alexandra Fell Levy in “The Virtue of Unvirtuous Spaces,” “works at odds with recovering victims” (404). Additionally, she observes, “many of today’s anti-sex-trafficking advocates, like last century’s anti-white-slavery crusaders, unwittingly foster abuse by seeking to subvert the spaces in which it sometimes takes place” (404). I would argue that this is not unwitting, at least not in the way it impacts sex workers, who remain acceptable collateral in this muddy, poorly organized war.
As Alexandra Lutnick notes in Domestic Minor Sex Trafficking: Beyond Victims and Villains, lists of every young person involved in the sex trade in the US do not exist, making any type of random sampling unfeasible. Lutnick’s research shows “prevalence data numbers range wildly from 5 to 423, 536″ (6). Most importantly, she observes that the majority of anti-trafficking resources reference data “from at least one flawed source” (6). This misinformation migrates into “newspaper articles, news shows, documentaries, journal articles, activist claims, organizational literature, political speeches, and governmental hearings” (6). These statistics have a tremendous impact on the way the average person views and subsequently converges sex work with trafficking for the purpose of sexual exploitation universally. When it comes to creating laws around potentially objectionable online content, this conflation provides a serviceable cover for controlling, not just sex industry content, but all content that is, or may be deemed, sexually unwholesome.
Within three days of the bill’s passing in Congress, Craigslist (which had already shuttered its erotic services section in 2009 due to pressure that it was providing a platform for illegal services), posted this notice on its personal ads, where sex workers had migrated after their designated section had been shut down:
US Congress just passed HR 1865, “FOSTA”, seeking to subject websites to criminal and civil liability when third parties (users) misuse online personals unlawfully. Any tool or service can be misused. We can’t take such risk without jeopardizing all our other services, so we are regretfully taking craigslist personals offline. Hopefully we can bring them back some day.
Sex workers were already aware that the popular promotional and social platform Twitter had been shadow-banning their content. It seemed reasonable to expect that more scrutinous policies would follow. Sex workers from Australia quickly built a social media platform hosted out of Austria called Switter. Vital advocacy groups like SWOP Behind Bars, which supports imprisoned sex workers with book programs, pen-pals, and post-incarceration clothing, gift cards and cell phones, moved their website hosting out of the United States. The furry fetish dating website Pounced.org hastily closed, posting this message on their landing page:
The problem is, with limited resources and a small volunteer staff, our risk for operating the site has now significantly increased. Now if someone posts an ad looking to exchange sex for something to pounced.org, and we don’t catch it, is that facilitating prostitution? Is it enough to simply re-train our volunteer staff and update our terms of service? (Pounced.org, 2018)
How did all this come to pass?
Since 1996, section 230 of The Communications Decency Act has provided immunity as long as the hosting platform “is not wholly or partly responsible for the creation or development of content” (Keller 2017, 8). Popular sex work advertising platform Backpage was, “initially granted immunity under CDA 230″ (Keller 2017, 8) but the case made through a senate report written by Senators Rob Portman and Claire McCaskill contends that Backpage was responsible for content, as moderators assisted people in removing words that suggested coercive and/or illegal actions. As a result, Keller reports that “plaintiffs reached an undisclosed settlement figure after the Washington State Supreme Court held that CDA 230 did not immunize them” (8). This senate report provided the basis for the FOSTA/SESTA package of bills.
On April 7th, 2018, sex workers woke up to find the familiar cock block of American law enforcement shields on the launch page of Backpage worldwide and this notice:
Backpage.com and affiliated websites have been seized as part of an enforcement action the Federal Bureau of Investigation, the U.S. Postal Inspection Service, and the Internal Revenue Service Criminal Investigation Division, with analytical assistance from the Joint Regional Intelligence Center.
The day before on Twitter, Republican representative Mimi Walters crowed, “Thanks to #FOSTA with my #SESTA Amendment, the Department of Justice has seized backpage.com and affiliated websites that have knowingly facilitated the sale of underage minors for commercial sex.”
There’s one problem worth noting here. In the US, a bill does not become a law until the president has signed it. President Donald Trump had yet to sign the bill into law when Walters sent her tweet. The objective to shut down Backpage was reached without the support of FOSTA/SESTA. But now that they exist, they provide even more accelerated and arbitrary power to the US in its anti-sex work crusades. This is far from the first time the United States government has infringed on the rights of sex workers in the international sphere. In 2005, George W. Bush created PEPFAR, the President’s Emergency Plan for AIDS Relief, which stipulated that organizations requesting HIV/AIDS funding from the US not be aligned with sex worker rights organizations. Many sex worker rights organizations in developing nations were left in precarious circumstances as a result).
Again, in the anti-sex trafficking industry, sex workers remain acceptable collateral. Throughout this process, no consideration has been given by law enforcement or anti-sex work advocates to the loss of thousands of dollars sex workers had placed in their Backpage accounts for long-term advertising. Or to the many lost hours of real sex work in the spring of 2018, as those who use digital platforms rushed to archive their assiduously curated work photos and content and secure screen captures of their service reviews before their online hosts disappeared. Or to the hours of unpaid labour involved in creating new platforms and providing community education and awareness. HR does not pay sex workers to attend skill building workshops on how to cope when digital access suddenly changes. Sex workers teach each other these skills. And they are really good at them. It’s hard not to get a double crush on that sex worker colleague you’ve been following with heart eyes on social media when you realize she is also a tech witch.
I would guess that it’s no surprise to anyone involved in the sex industry that the response by its workers was swift and serviceable. Within a month Switter had over 10,000 users. (It now has over 100,000). Sex worker Liara Roux, who rarely, if ever, publicly strayed from her super cute and skillfully articulated work persona, created a living document with her colleague Ashley Lake which details the many ways in which sex workers suffer legal discrimination. Aside from providing authentication of the violence inherent to digital surveillance and criminalization, these efforts are also important in fostering intergenerational net-based support networks. Roux’s willingness to be openly activist is brave and beautiful.
I was inspired, as I always am, by the ingenuity and responsiveness of sex workers in times of enhanced surveillance over their bodies. My own contribution to this active protest comes in the form of a creative offering: Wish You Would Hear.