[FOSTA/SESTA was written to] remind whores that our lives are dispensable, we are not protected, our work is unseen and irrelevant, to destabilize our ability to live with any degree of agency, to flaunt the murders and negligent deaths of our loved ones as a daily reminder that the world does not mind at all watching us die and forgetting our names.

Respondent, Erased: The Impact of FOSTA/SESTA and the Removal of Backpage (Hacking//Hustling)

Over the last several years, Congress has taken a more aggressive approach to regulation of the internet. Despite concerns which range from privacy of users to promotion of misinformation, the most successful attempts by Congress have instead been to broadly target commercial sex. The result has been increased hardship and vulnerability for people who trade sex, increase violent encounters against sex workers, made trafficking investigations and prosecutions more difficult for law enforcement and made content moderation more difficult for websites.

Why are these bills impacting sex workers?

There have been multiple bills introduced to regulate digital platforms’ hosting of content. Currently, Section 230 of the Communications and Decency Act is the main regulation governing liability of websites to the content they post. The section breaks sites into two categories – content hosts and content producers – and says that content hosts are not legally responsible for the content posted on their platforms. Since 230 was passed in 1996, digital space evolved long beyond the limits of what could have been imagined. Apps, social media, wikipedia, the collection and dissemination of knowledge and the digital currency of private information have all formed and exploded in the last twenty-five years, and oversight has not caught up.

Thus far, the most aggressive attempts from Congress have come from using old, criminal justice tactics to try and regulate digital space. The first attempt was FOSTA/SESTA, passed in 2018, which (1) broadly and inexactly expanded civil liability for platforms around the federal sex trafficking law (1591) without providing clarity around central legal standards and (2) expanded the federal criminal law for facilitating prostitution using online platforms with an up to 25 year jail sentence. While on its surface, expanding liability for participating in a venue of sex trafficking may sound narrow, it is anything but clear, and most websites do not have the litigation budget to find out what is and is not “participation in a venture.” From an advertisement alone, it can be impossible to determine the age of a person posting, especially when many people use stock images. For even victims of trafficking, advertisements read no different than those who are not facing exploitation. Much of the Congressional rhetoric condemned websites for knowing that commercial sex was taking place on their platforms, and argued this was enough to be shut down. As always happens – it was easier to force sex workers out of a space than take on the liability of proximity to a targeted, demonized industry.

Within weeks of the passage of FOSTA/SESTA, dozens of websites sex workers used to find clients closed pre-emptively, and therefore economic security and independence, or closing portions of websites sex workers were using to community. What was displayed was that Congress couldn’t figure out how to target harm – so simply expanded criminalization of spaces that those most likely to experience harm gathered safely.

A Brief History of Sex on (and getting kicked off) the Internet

Listen to an in-depth history of internet porn.

1980s and 90s: As the internet expands peer-to-peer connections, sex and pornography become a significant part of that. The introduction of message boards, bulletin boards where you could upload pictures, but not yet music or videos, was a prime place for people to find and access sexually explicit materials. Porn and individual explicit sites were at the forefront of developments around video streaming, monthly subscription services (Danni’s Hard Drive was one of the first, owned and operated by a Seattle-based stripper at a time when the other major subscription service was the Wall Street Journal), pop-up ads, and double opt-in processes.

1988: In People v. Freeman, the CA Supreme Court rules that adult film is protected under the First Amendment. That same year, the Child Protection and Obscenity Enforcement Act was passed, creating 2257 regulations which created the requirements about producers checking and maintaining identifying information, especially for age, which can be checked by Federal agents at any time. 2257 regulations remain in place for adult producers/performers, and still govern many advertising sites.

1993: Playboy sues Event Horizons, a platform for user message boards where subscribers could upload and download whatever content they wanted, for Playboy copyrighted material being available. It is the first major (and possibly the first ever) case of a major media company suing digital platforms for copyright infringement.

1996: (February) While sex has been on the internet as long as there was an internet be to on, the first major piece of regulation, the Communications and Decency Act was signed into law specifically to regulate material deemed obscene on the internet. While some provisions related specifically to explicit material involving minors, other parts of the bill were more broad and many of those provisions have been found in violation of the First Amendment. CDA’s Section 230, which says platforms are not liable for content posted on their sites, remains the center of current debate.

2008: Offended that sex workers were able to use the internet, then-CT Attorney’s General Richard Blumenthal pressures Craigslist to begin charging for ads in its erotic services section. The cost is required to be paid by workers and eventually this exact thing will be criminalized as “participation in a venture of trafficking.”

2009: In May, Craigslist changed its “erotic services” section to “adult services” after pressure about the prevalence of sex workers on their site, catalyzed by harassment from AGs and anti-sex work groups of the CEOs.

2010: Under more pressure, Craigslist closes the adult services section, advertisements move to Backpage, which is structured almost identically and provides the same reach and model for working.

2014: (March) Rep. Wagner (R-MO) introduces the SAVE Act, which is the first attempt to target digital platforms where sex workers advertise for trafficking charges through an expansion of liability.

(June) MyRedBook, a Bay Area-based site where sex workers advertised and built community is seized and its CEOs charged with promotion of prostitution and money laundering. Local FBI had been receiving complaints from a Bay Area anti-trafficking group that clients of theirs were advertising, despite being underage, and it was too hard to delete the ads (ads could only be pulled by request of law enforcement, the young person or a legal guardian – not shelter staff). The CEO is sentenced to thirteen months and forfeits $1.28m.

2015: (January) The Justice for Victims of Trafficking Act passes, including a provision which adds “advertises” to the trafficking statute. It is a clear attempt to expand existing trafficking law to target digital platforms, but the DOJ interprets the addition to someone who physically puts up an ad for another person.

(August) After almost 20 years of operation, DHS seizes Rentboy.com and charges the CEO and seven employees with promoting prostitution and money laundering, putting male-identifying sex workers across the country in precarity. Charges are dropped against the employees, but CEO Jeff Hurant receives six months in prison and a fine. At the sentencing, Judge Brodie told him, “The very thing that was illegal. it also did a lot of good.”

The CEO of Craigslist receives an award from the FBI on their work fighting human trafficking into the sex trade.

2016: (October) CA Attorney’s General, Kamala Harris arrests the CEO and two of the highest staff of Backpage.com and charges them with pimping. The charges are dismissed, and AG Harris re-files the charges, which are dismissed again.

2018: (April) After years of investigation for trafficking, the CEO of Backpage and some of the highest staff are arrested and charged with promoting prostitution and money laundering. The website is seized, displacing thousands of sex workers and making the industry more precarious for violence.

(April) One week later, SESTA/FOSTA passes into law, taking the first major crack at the legal safety of platforms who host online content, but only content related to the sex trade. SESTA/FOSTA is sponsored by Sen. Blumenthal in the Senate and Rep. Wagner in the House.

2020: (March) The Senate introduces the EARN IT Act, which duplicates the tactics of SESTA, but extends it to pornography as well as commercial sex. The year has marked with countless bills trying to restrict or change Section 230 in the wake of revelations about Russian election interference using social media, the proliferation of false information about voting or medical claims, and the President’s claims of censorship.

(June) CityXGuide is seized and charged with the first use of the FOSTA criminal expansion, which extended the White Slave Traffic Act/Mann Act to include internet services which “facilitate prostitution.”

Other Mechanisms to Restrict Commercial Sex Online.

Regulation of digital space has heavily relied on expansion of liability, but there are multiple avenues which have been pursued, often to the detriment of sex workers’ lives and independence.

  • Promotion of Prostitution/Money Laundering/Travel Act: Prior to the passage of SESTA/FOSTA, the federal government had taken down several websites in relation to commercial sex. In 2016 the DHS seizure of Rentboy.com was the most high profile of these actions when they closed the website and arrested seven of the site’s employees. The operators were charged with promotion of prostitution, federalized through the Travel Act, and money laundering. This combination of charges was used against MyRedBook in 2014 and Backpage.com in 2018.
  • Credit card companies hold an incredible amount of weight in determining what is acceptable to stream or display on porn websites. Recently, Mastercard and Visa have determined that they will not longer process Pornhub payments, meaning websites have to use more remote and removed credit card processing companies who may not offer the same privacy or security as other companies, and may have higher fees and costs – a cost which will be passed along to performers, not consumers.
  • Credit card companies also control the content of what streams – limiting the ability of kink material, or even things resembling kink material, on websites. For example, one website was forced to remove pornography which included red wax because the credit card company thought it was too similar to blood.

Impact: the Loss of digital space.

A study conducted by two economists in estimated that due to the opening of Craigslist’s Erotic Services Section, the first time a mainstream website had opened a space specifically for use by sex workers, homicides of women decreased by 10-17% overall. The ability for women engaged in commercial sex to work independently in digital space which had low enough barriers to participation facilitated more independence from managers, eased the ability to travel for work, and increased negotiations with potential clients.

In the wake of passing SESTA/FOSTA and closing Backpage.com, sex workers and service providers reported:

  • Lowering Safety Standards: “I had to see clients who have assaulted me in the past and have definitely had to relax my screening policies.”
  • Economic Insecurity and Homelessness: “I became homeless after Craigslist shut down their personals section… I was unable to pay my rent for the first month.”
  • Impacts on Mental Health: In the week since the bill’s passage, TransLifeline, a suicide-prevention hotline, saw a 97% increase in calls.
  • Predatory Third Parties: “We’ve had multiple reports on the community support line and through our community networks of predatory and exploitive people coming out of the woodwork trying to reestablish old relationships or build new ones in order to take advantage of the vulnerable position that many sex workers are in.”
  • Increased street-based work: Outreach workers in San Francisco, Washington DC and Seattle have reported increases in 3-4 times the number of sex workers on the street. From a homeless services provider, “More street outreach toward [minors engaged in commercial sex]. More people are back on the street then online thereby outreach is important.”
  • Shifting Power Dynamics with Clients: “(Clients are) way more pushy, trying to get me to do things I’m uncomfortable with.”

Recommendations.

Understand the Issue.

  • Pass the SAFE Sex Worker Study Act, which asks HHS to study what happens when sex workers’ lose access to digital spaces. Until it is more broadly understand how and why sex workers use digital space, there will only be more isolation and marginalization.

Focus on Harm.

  • Conversations on harm which has a digital element should focus on prevention of harm first, instead of simply being a talking point or an afterthought.
  • Regulations must stop looking at types of harm. Carving out single criminal statutes is ineffective and expands the criminal system instead of addressing actual problems.
  • Stop focusing on sexual expression as the only type of harm. The result is an overbroad interpretation by companies, and regulation of all sexual of profiled materials – including sexual health information, sexualized imagery and materials (which disproportionately targets LGBTQ folks and woman of color) and LGBTQ community all are put in jeopardy, with no one in a place of decision-making asking for transparency or accountability.

Bring in experts. Real experts.

  • Development of proposed should not come from the Department of Justice or Homeland Security – access to digital spaces is not a centrally criminal justice issue.
  • Bodies brought together to discuss regulation must include transparency and accountability mechanisms for their impact on impacted communities.
  • Representatives from these communities must be in a seat of power – including LGBTQ people, communities of color, rural communities, democracy and privacy activists, and sex workers.

Groups to Follow.

Hacking//Hustling is a collective of sex workers and accomplices working at the intersection of technology and social justice formed in response to SESTA-FOSTA.

Free Speech Coalition is a trade association for the adult industry, and maintained resources for sites and online performers.

Survivors Against SESTA is a now-closed sex worker-led campaign which mobilized to push back on SESTA and document its impact. Many materials for advocacy and safety remain on the website.

The Electronic Frontier Foundation is the leading nonprofit organization defending civil liberties in the digital world. EFF has lobbied to fight SESTA and EARN IT, and continues to engage sex workers in their advocacy.

The Center for Democracy and Technology (CDT) works to promote democratic values by shaping technology policy and architecture, with a focus on the rights of the individual. CDT has been supportive of sex worker-led initiatives and thoughtful about the needs of people in commercial sex in these conversations.