How new laws targeting human trafficking are chilling online expression — and endangering sex workers 

click to enlarge The new SESTA-FOSTA laws have forced many sex workers off of the internet and back onto the streets.

Iain Maitland

The new SESTA-FOSTA laws have forced many sex workers off of the internet and back onto the streets.

In 2012, following a divorce, a series of unfulfilling jobs, and a need to pay her mortgage, Addy Finch found out some men were interested in paying for her time simply because as a transgender woman, she offers something a majority of other women do not.

"A lot of my clientele are straight dudes who want to suck a dick for the first time," she says. "I remember I had one guy who very shamefully said, 'I have a really weird kink,' and it took about a good 10 minutes to get it out of him and all he wanted to was perform oral sex on me. That's not a kink, that's nothing to be ashamed of."

It started slowly for Finch with ads on Craigslist, and later, other sites created especially for those offering sexual services. Since last spring, however, the majority of those platforms have been forced to shut down or radically change — making it riskier for sex workers like Finch to find clientele.

In spring 2018, Congress passed and President Donald Trump signed into law the "Stop Enabling Sex Traffickers Act" (SESTA) and the "Fight Online Sex Trafficking Act" (FOSTA). The law changes a provision in the 1996 Communications Decency Act that freed sites in the early days of the world wide web from being held responsible for third-party content. The 1996 statute allowed liability to fall on the content creator and not on sites like Google, Craigslist, or Facebook. SESTA-FOSTA changes the dynamic and opens criminal and civil liability for sites found guilty of facilitating sex trafficking.

The passage of the act followed investigations into sites such as Backpage, a former division of Village Voice Media — a well-known owner of respected alt-weeklies that once included The Village Voice. Following the President's signature on April 11, Backpage was seized and shut down by authorities with other sites, radically changing how they handle sex-related material.

A growing number of voices, however, contend that the laws are too broad, and affect far more than their intended targets of human trafficking. And it's not just sex workers like Finch.

David Greene, the Civil Liberties Director at the digital-rights group the Electronic Frontier Foundation, has taken up a case against SESTA-FOSTA on behalf of five plaintiffs who are all opposed to sex trafficking, but have concerns because the laws were written in a way that threatens their ability to do their work. Among the plaintiffs in the case is The Internet Archive, a digital library of old websites, books, and other publications, which is concerned they could be exposed to criminal and civil liability for hosting the old material — as they store millions of files, some of which contain old ads. Another plaintiff is a non-sexual massage therapist who was using Craigslist as his sole method of offering his service.

For Greene and the EFF, the question is about what SESTA-FOSTA means to "promote or facilitate" the prostitution of another person, since the court system has made broad rulings on the term "facilitate" in the past. That, he says, should be a concern to anyone concerned about speech online.

"Congress wrote a law that criminalizes speech that is otherwise legal," he says. For example, Greene says, even online speech simply advocating for the decriminalization of prostitution could be considered illegal under SESTA-FOSTA. "We should always be concerned when Congress is restricting free speech, even when you don't care about that particular speech. I think you should also be concerned when you see what effect the law is having on harm-reduction efforts, it's creating a significant public health problem by decreasing the ability of organizations to provide resources to sex workers and also with the loss of platforms, sending sex workers back to street-based work."

Because SESTA-FOSTA now forces sites to monitor their forums and comment sections more carefully, Greene says this has had a chilling effect on online speech, as many sites find it is simply too much of a burden to moderate. Others have closed forums, retooled their sites for other uses, or shut down altogether.

In September, a federal court in Washington, D.C., dismissed the case brought by the EFF, citing lack of standing of the plaintiffs to sue the government over SESTA-FOSTA. Greene says the case has been appealed to the U.S. Court of Appeals — D.C. Circuit, but a hearing has not yet been scheduled.

Making it harder for police to do their jobs

While one might think police would find this new law valuable, it's been a mixed bag. The U.S. Department of Justice came out against the bills before their passage, claiming it would make their work harder.

Michigan State Police public information officer Michael Shaw says the agency supports the federal law, seeing it as a benefit to their efforts. He says the agency has two troopers assigned to an FBI task force for human trafficking, and that they have not seen a drastic change in the number of arrests made since the passage of SESTA-FOSTA in April 2018. The MSP's 2018 statistics are not yet available.

"Any law that makes it harder on the people that are doing these types of crimes is better for us," he says. "While it was easy to go on Backpage, it just takes a little bit more work to find out the new places (online where) they are going and committing this crime."

Shaw adds that MSP is aware of sites and chat rooms where the solicitation for sex trafficking continues to take place.

But nationwide, other police departments have criticized the new laws. In a July 2018 story from Indianapolis' ABC 6-TV, Sgt. John Daggy, an undercover officer with the Indianapolis Metropolitan Police Department, said the shuttering of Backpage has made it harder for his team to trap human traffickers and pimps.

"With Backpage, we would subpoena the ads and it would tell a lot of the story," Daggy said. "Also, with the ads we would catch our victim at a hotel room, which would give us a crime scene. There's a ton of evidence at a crime scene. Now, since [Backpage] has gone down, we're getting late reports of them and we don't have much to go by."

In the same story, Stephanie Jeffers of Grit Into Grace, a nonprofit that gives aid to street prostitutes, said the shuttering of Backpage not only led many she talked to say they would more than likely have to go to the street, but that it more than likely wouldn't slow down the criminal element in sex work.

"Pimps are still going to make their money, traffickers are still going to make their money — it's just going to change things for the women," she said. "And I wouldn't assume for the better."

While the ability to place ads online has been limited, or outright banned, other sites that aided those in sex work have also changed their focus or closed. Finch says sites that featured so-called "blacklists" where workers could share information and reviews about abusive clients have all but dried up under the guise that those sites are seen as aiding in sex trafficking. Finch says the review sites were invaluable, a place where workers talked among themselves about which clients were not only inconsiderate or cheated them on pay but also physically dangerous. In one review, Finch learned about a man who attacked a fellow sex worker's face with acid. For sex workers like Finch, such information can be a lifesaver.

A reheated Comstock-type law?

In 1873, the U.S government passed a series of laws allowing the U.S Postal Service to focus on the "Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use." They became known as Comstock Laws after the United States Postal Inspector Anthony Comstock, who had started the New York Society for the Suppression of Vice that same year.

The laws make it a crime to send anything through the U.S. Mail that was deemed obscene, including personal letters with any sexual content or information related to contraceptives, abortion, sex toys, or the like. Comstock's view of what was lewd and obscene even included banning anatomy textbooks from being shipped to medical students. In 1909, the Comstock Laws added railroads to the mail as a delivery method for such "unsavory" materials. If convicted, violators could receive punishment on the federal level by up to five years' hard labor in prison. The Comstock Laws were slowly dismantled throughout the early 1900s until the last piece, related to contraception, was struck down in 1972 — 99 years after they were originally enacted.

But what makes SESTA-FOSTA different from the Comstock Laws is that the government itself is not the one in the business of censoring. Instead, this new generation of laws pushes the onus onto business owners to do such regulating, and as many internet companies deal with millions and millions of posts and pieces of information coming through their systems on a daily basis, many have little to no time to check everything coming over the transom. Now, anything that could be perceived as related to sex trafficking is getting pushback.

The day after SESTA-FOSTA was passed, Craigslist, which had removed its "adult" services sections over the past decade, also shut down its "personals" section from all its U.S. pages.

"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," the company wrote in a short statement on its website."To the millions of spouses, partners, and couples who met through craigslist, we wish you every happiness!"

For Finch, business has changed, as her usual places to advertise have disappeared. She says she understands how she holds a privileged place among sex workers as a white transgender woman with a rolodex of clients in major cities throughout the U.S. and Canada who does not have to do street work. And while the number of clients she sees has diminished due to the passage of SESTA-FOSTA, Finch says it has meant return business from some of her older clients who have also found their usual avenues for making connections with someone like her blocked.

While she says it's laudable to seek to stop sex trafficking, Finch says SESTA-FOSTA doesn't appear to be helping — and, in fact, is doing more harm in areas she cares about beyond her own pocketbook.

"It's really easy for people to get behind 'sex trafficking is bad, so sex work is also bad,'" she says. "It's really easy to follow that and forget really important speech that's being erased. It's really scary when I think about it in the larger context of the things that are no longer allowed."

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