A new law targets online sex trafficking, but critics worry about the consequences for sex workers’ safety.
Cities across the country are adjusting to an alarming new reality: an increase in arrests for prostitution and sex trafficking on city streets. Could Congress—and Internet regulation—be to blame?
The spike in arrests came after March of 2018, when Congress passed the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (FOSTA). FOSTA was passed in response to a 20-month U.S. Senate investigation into Backpage, an online classifieds service that enabled prostitution and sex trafficking.
Sex workers—those who receive money in exchange for sexual services, including prostitution—used Backpage to advertise. But so did sex traffickers, who coerce adults and children into sexual servitude. Congress believed that the company knew what was happening on its site and did nothing to stop it.
Congress concluded that Backpage repeatedly evaded prosecution because it was protected by the Communications Decency Act (CDA), a law that shields websites from state criminal law.
The CDA provides, “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 sentence, which is sometimes called the “safe harbor” provision of the CDA, protects websites from legal liability for most of the content created by others who use their site.
“Congress deliberately chose not to expose these companies to criminal prosecutions in 50 different states for content their users create or post,” explained the Electronic Frontier Foundation (EFF), an organization that advocates for civil liberties online. EFF opposed FOSTA because it feared companies would respond by over-censoring user-generated content and because unscrupulous websites could already be prosecuted under federal criminal law.
After its investigation, Congress determined that Backpage had gone too far. FOSTA clarified that the CDA “was never intended to provide legal protection to websites that unlawfully promote and facilitate prostitution.”
During its investigation, lawmakers learned that Backpage edited ads to remove evidence of criminal activity. A fact sheet released by the senators leading the investigation said that Backpage was not a passive platform but “an active co-creator of many of these sex advertisements, including those that seek to traffic women and young girls.”
The day after President Donald J. Trump signed FOSTA into law, Backpage pleaded guilty to human trafficking charges in Texas and other charges in California.
But shutting down Backpage did not shut down the sex trade. Instead of relying on websites, sex workers are turning—or returning—to city streets. San Francisco police believe that the closure of Backpage caused a tripling of prostitution-related arrests in 2018 compared to 2017.
Opposition to FOSTA came from some of the very people Congress was supposedly trying to protect—victims of sex trafficking.
Sex workers and their advocates believe that taking away online advertising puts their lives at risk. Sex Workers Outreach Project Behind Bars says that online advertising allows sex workers to control where they work and share information about potentially violent clients.
“The more openly we can talk about our services online, the better equipped we are to protect and support each other,” wrote Ty Mitchell, a writer and sex worker, for The Huffington Post.
Other sex workers have protested the conflation of consensual sex work and sex trafficking. “Those of us who have dedicated our lives to the issue know the reasons individuals have sex for money are complex and varied,” wrote Melissa Petro, a writer and former sex worker, in The Daily Beast.
Despite the possible harm that online advertising may help sex workers avoid, some anti-trafficking advocates believe that sex trafficking will not be stopped until prostitution is eliminated. World Without Exploitation, which fights sex trafficking and supported FOSTA, argues that although not everyone involved in the sex trade has been a victim of trafficking, the overwhelming majority are.
“Prostitution is where sex trafficking occurs,” World Without Exploitation says. On the other hand, groups like Amnesty International believe that decriminalizing sex work is a better way to combat trafficking.
FOSTA is now law, but the debate over online advertising for sex work—and sex work in general—is far from over.
Some sex workers are finding ways around the new limitations. In response to FOSTA, sex worker advocate Melissa Mariposa founded Red Umbrella Hosting, an offshore web hosting and design company that advertises itself as a “judgement free alternative to traditional web hosting providers.” The site maintains servers in Iceland and accepts payment through gift cards, cryptocurrency, and money order by mail.
Sex workers are also turning to political activism to bring their profession out of the shadows.
In the wake of FOSTA’s passage, around 40 sex workers reportedly lobbied lawmakers in Washington, D.C., for the decriminalization of sex work. Another group of sex workers protested standup comedian Amy Schumer during a performance in San Francisco following her appearance in a public service announcement in support of FOSTA.
Politicians are paying attention to sex-worker activism—and some are even joining their movement. A growing number of candidates for office believe that sex work should be decriminalized entirely. One of the most outspoken is New York State Senator Julia Salazar, who campaigned on repealing a state law that prohibits loitering for the purpose of prostitution.
Besides repealing the state loitering law, Salazar believes sex work should be legalized and regulated. “Sex workers are workers and they deserve to be treated with dignity, including protections and decent working conditions, rather than the abuse and criminalization that they currently face,” Salazar reportedly told The Intercept.
The impact of FOSTA on the sex industry—for good or ill—is still unclear. But it appears to have breathed new life into sex-worker activism, both online and in the streets—and possibly at the ballot box.