By Katia Acierno
On April 11th, 2018, Donald Trump signed two bills: the Stop Enabling Sex Traffickers Act and Allow States and Victims to Fight Online Sex Trafficking Act, together known as SESTA/FOSTA. The two bills were meant to clarify sex trafficking laws, in hopes to target websites that may knowingly assist, facilitate, or support sex trafficking. The law amends Section 230 of the Communications Decency Act of 1996, which protects online platforms from being held liable for the content posted by their users. By amending Section 230, SESTA/FOSTA now holds online platforms liable for sexual service ads or “promoting sex work” on their sites, thus allowing law enforcement to prosecute such cases. SESTA/FOSTA has received backlash from sex workers, distinct from sex trafficked victims, as their work is consensual and commercial. Sex workers argue that online platforms allow them to engage in their work safely and offer an online source of information and communication.
SESTA/FOSTA was passed to disrupt, fragment, and shrink the online sex work marketplace to prevent the exploitation of human trafficking victims. While the efficacy of the laws is yet to be collected and analyzed, its catastrophic effects have already been felt. According to the Fordham Law Review, SESTA/FOSTAs immediate effects have not fulfilled its initial promise. Instead, it had devastating consequences for individuals performing commercial sexual services under consensual and coercive circumstances alike. By holding online platforms responsible for the content of its users, SESTA/FOSTA has halted important means of communication that sex workers have grown to rely on. According to one article that interviewed online sex workers, “Being able to source clients from an online space gives sex workers more space to negotiate with a client while our work is still criminalized…It just gives you more space to make a decision before getting in a car” (Tung, 2020). In addition, online platforms are utilized by sex workers to curate blacklists to warn other sex workers of harmful or dangerous clients, create electronic databases of clients, and communicate to one another about safe spaces, and other health and safety tips. Without such vital communication and warnings, sex workers are either displaced to working the streets or unknowingly place themselves in the hands of dangerous clients. Sex work conducted on the street is more dangerous and lethal compared to other forms of sex work, especially online sex work, as it doesn’t allow an opportunity for the sex worker to negotiate. According to a 2017 study, Craigslist provided an “erotic services” section to its front page, allowing sex workers to advertise and solicit sex services. The erotic services section reduced the female homicide rate by 17.4%, a direct result caused by street sex workers moving indoors and online (Henderson, 2018).
SESTA/FOSTA, as aforementioned, harms the sex work community, and likewise, harms efforts to prosecute sex trafficking and locate sex trafficking victims. Firstly, SESTA/FOSTA operates under the presumption that eliminating access to sex websites will strike the sex trafficking industry. Instead, it diverts otherwise U.S.-regulated websites to offshore websites, where U.S. law no longer has jurisdiction, thus solicitors and facilitators of human trafficking are not held responsible. In addition, online platforms allow law enforcement to easily track and document sex trafficking victims through photographs and forms of identification provided by such websites. Lastly, SESTA/FOSTA assumes that where “prostitution” and sex work are found, human sex trafficking is to follow, but it is not clear that such an implication is true. SESTA/FOSTAs promised goal to curb sex trafficking has caused extensive consequences for consensual sex workers, which arguably outweighs its intended premonition.
While SESTA/FOSTA has successfully such down websites, like Backpage, that knowingly facilitated human sex trafficking, it’s unclear whether the collateral consequences to sex workers and other human trafficking victims are worth its minimal payoff.
Blunt, Danielle, and Ariel Wolf. “ERASED: The Impact of FOSTA-SESTA and the Removal of Backpage on SEX Workers: Anti-Trafficking Review.” Anti, April 27, 2020. https://www.antitraffickingreview.org/index.php/atrjournal/article/view/448/364.
Chamberlain, Lura. “FOSTA: A Hostile Law with a Human Cost.” FLASH: The Fordham Law Archive of Scholarship and History. Fordham Law Review, 2019. https://ir.lawnet.fordham.edu/flr/vol87/iss5/13/.
Henderson, David, Scott Sumner, and David Henderson. “Craigslist Reduced Female Homicide Rate by over One Sixth.” Econlib, April 5, 2018. https://www.econlib.org/archives/2018/01/craigslist_redu.html.
Tung, Liz. “FOSTA-SESTA Was Supposed to Thwart Sex Trafficking. Instead, It’s Sparked a Movement.” WHYY. WHYY, July 10, 2020. https://whyy.org/segments/fosta-sesta-was-supposed-to-thwart-sex-trafficking-instead-its-sparked-a-movement/.