What is FOSTA/SESTA?
FOSTA/SESTA is an amendment to Section 230 of the Communications Decency Act of 1996. It stands for the ‘Fight Online Sex Trafficking Act’ and the ‘Stop Enabling Sex Traffickers Act’. FOSTA/SESTA was signed into law on April 11, 2018 by President Donald Trump.
FOSTA/SESTA was intended as a measure to stop sex trafficking, but in practice it limited free speech on the internet, setting a dangerous precedent for the further restriction of open communication online. The material effects of FOSTA/SESTA were to decrease safety, visibility, and autonomy for both sex workers and victims of sex trafficking. These effects are often seen when laws regarding sex work and sex trafficking are enacted without proper consultation with community or peer organisations.
What was the purpose of Section 230?
The section stated, “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.”
This means that internet platforms and ISPs (internet service providers) weren’t considered the ‘publisher’ of anything that their users posted, and they couldn’t be held liable for anything their users said. Basically, Section 230 was a freedom of speech protection.
How does FOSTA/SESTA amend Section 230?
FOSTA/SESTA amends section 230 to state that this protection does not extend to cases where online platforms can be perceived as promoting prostitution. This means that any website that ‘promotes prostitution’, including sites where sex workers advertise, screen, and otherwise conduct their business, could be held accountable for illegal acts.
Is this what happened to Backpage?
You might equate FOSTA/SESTA with the closure of Backpage. This site was well known for its erotic services ads and was where many sex workers advertised pre-FOSTA/SESTA.
Backpage was actually seized by the US Department of Justice the day before the amendment was signed into law, and its owners were charged with facilitation of prostitution and money laundering. The proximity of the two events means that people often equate the Backpage closure with FOSTA/SESTA, but the amendment to the law was not needed for the federal government to seize the site. Criminal actions were already not protected by section 230, and the charges laid against Backpage were sufficient to see the site seized by the DOJ pre-FOSTA/SESTA.
Did FOSTA/SESTA affect sites similar to Backpage?
Craigslist took down the ‘Personals’ section of their website in response to FOSTA/SESTA, saying the capacity for its misuse for advertising sex work left it open to prosecution under the new laws. Many other small websites with personals sections were removed as the owners could not take responsibility for what the postings might potentially be used for. Screening sites like Verify Him and various ‘bad date’ lists were also taken down in response to the amendment.
What did FOSTA/SESTA actually do?
Like most reactionary laws, FOSTA/SESTA had the opposite of its intended effect, driving both human traffickers and sex workers further underground.
It affected sex workers by removing one of the main advertising platforms used by the community, and it prevented online networks that allowed for screening and community-building from operating, greatly reducing sex worker safety.
After the passing of FOSTA/SESTA, many sex workers lost their ability to safely and independently find their clients online. This pushed many sex workers into agencies that did not have their best interests in mind, and in some cases, back into street-based sex work or into the hands of the very traffickers the law was trying to eradicate. Basically, we lost our right to control how, when, and where we worked.
Options for screening clients were vastly reduced as sites that had previously been used as ‘bad date’ forums went down for fear of prosecution. This forced sex workers to take more risks in accepting clients, leading to more incidents of violence and assault against them.
In San Francisco alone, sex trafficking “shot up 170% following the passage of the law, as sex workers were forced back into street-based work, increasingly vulnerable to exploitation and violence.” Further, when the advertising sites used by law enforcement to track sex trafficking went down, they lost their only effective method of monitoring the movements of traffickers. An investigator said, “the shutting down of Backpage was like turning on a light in a dark room full of cockroaches, the cockroaches fled, now we are trying to find out where they fled to.”
On top of FOSTA/SESTA’s negative impact on victims of sex trafficking, FOSTA/SESTA also impacted the income of a vast number of sex workers. One study indicated that of their respondents, “almost three-quarters (73.5 per cent) reported that their financial situation had changed since April 2018 and that they are now facing increased economic instability.”
Access to community and resources was limited due to the passage of FOSTA/SESTA. Sex workers used many platforms to share resources, screening methods, participate in activism, and build communities. Under FOSTA/SESTA, platforms have taken to censoring and deplatforming sex workers, making it harder to keep these communities intact.
FOSTA/SESTA didn’t just affect sex workers
By effectively censoring the internet, FOSTA/SESTA set freedoms of speech backwards, setting a dangerous precedent and making the internet a less safe space for everyone.
By undermining section 230, the law has caused platforms to become increasingly conservative in what they allow users to post. This has likely led to the shadowbanning and shuttering of not only sex workers accounts, but other accounts that discuss sex in any way, even for educational purposes.
FOSTA/SESTA is used as an excuse for the censorship of broad swathes of sexual content online. Kendra Albert, in her paper Five Reflections from Four Years of FOSTA/SESTA, said:
I have heard legal risk articulated as the rationale for restricting sex worker speech or removing sexual content. However, given that this legal risk is often minimal, the actual motives are probably either prudishness (a fundamental discomfort with sexual content, even when users who are of legal age seek it out) or whorephobia.
By censoring what content their users post in order to avoid being prosecuted for any sex trafficking that may occur on their platforms, these companies take away the rights enshrined in section 230 to free speech, and have used FOSTA/SESTA as an excuse to limit what their users can speak on.
Some think that the passage of FOSTA/SESTA is a stepping stone to banning all adult content from the internet. One of the groups supporting the amendment is The National Center on Sexual Exploitation, who state that their ultimate aim is to rid the internet of all pornography. When we allow some of our rights to be eroded by bills such as FOSTA/SESTA, we can only expect that more of our rights will be stripped away under the guise of ‘protection’.
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