In 2018, Congress passed the Fight Online Sex Trafficking Act (FOSTA), a law ostensibly designed to curb human trafficking by holding websites and online platforms responsible for user content that might facilitate sexual exploitation.
More than two years later, it's still unclear whether the law has actually achieved those goals. But among sex workers, the consequences were felt immediately: sites like Backpage and Craigslist Personals shut down, eliminating sources of income for thousands of precariously-employed workers. According to a 2020 survey of 98 internet-based sex workers, 99 percent of respondents said the law didn't make them feel safe, and 72 percent said it decreased their ability to make end's meet.
Now, another round of anti-trafficking legislation is making its way through Congress, the Safeguarding Against Fraud, Exploitation, Threats, Extremism, and Consumer Harms Act—or SAFE TECH Act. Like FOSTA, the bill is attempting to reform Section 230 of the Communications Decency Act (CDA), the law passed in 1996 to protect free speech online by offering legal protection for online platforms and websites. And like before, sex workers are fearful of the consequences.
Supporters of the SAFE TECH Act want to further limit the scope of Section 230, making companies responsible for policing user speech on online platforms. “What I don't want is to have these giant providers continue to use Section 230 as this immunity, a kind of ‘get-out-of-jail-free’ card,” Senator Mark Warner, the bill's sponsor, said in an interview with Protocol.
But sex workers and free speech advocates warn that eliminating these liability protections means greater censorship of online platforms as companies try to reduce the risk of landing in legal trouble as a result of third-party user content.
“The SAFE TECH Act would mean I can’t afford to run my own website and will lose income from many other sites. It will impact any social media platforms I use for marketing,” Mary Moody, who has been a sex worker for the last 5 years, told Motherboard. She also fears that she could easily be sued for her content on websites, have to attend court, and pay for an attorney.
Moody's fears are echoed by most of the sex work community—as well as digital rights advocates, who warn of broader free speech consequences if the bill were to pass.
“Section 230 underpins much of the internet, offering legal protections for companies, news organizations, creators of all stripes, political activists, nonprofits, libraries, educators, governments, and regular users," Jason Kelley, a digital strategist at the Electronic Frontier Foundation (EFF), told Motherboard. "Without it, any online service that did continue to exist would more than likely opt for censoring more user-generated content—and that would inevitably harm marginalized groups more than others."
Sex workers would be one of those marginalized groups affected by SAFE TECH, and many fear that their work and safety will be compromised if the bill passes. “I’ve been dreading the inevitable Section 230 reform,” Blair Hopkins, Deputy Director of SWOP Behind Bars told Motherboard. “Section 230 protects sex workers in a kind of ancillary way because it allows them to conduct their business on platforms without interruption from the platforms. SAFE TECH, while not directly aimed at sex workers, has a downstream effect of unintended consequences.”
She added that the bill would force smaller companies with less resources to over-police user content, in order to avoid legal liability. “They will just massively moderate everything, so they don’t get into trouble.”
With that extreme moderation as means of protection, sex workers will be further pushed off the internet. Mariah Grant of the Sex Workers Project of the Urban Justice Center told Motherboard their concerns regarding SAFE TECH: “Sex workers rely on the internet to share bad date lists, build community, learn about harm reduction practices, screen clients, and build client networks. Without the internet, many sex workers cannot survive financially, much like workers in other industries that are increasingly based online. The lack of access to the internet is more likely to push sex workers to street-based work. This opens up sex workers to increased dangers, including limiting opportunities to screen clients successfully as well as increased police interactions and possible harassment and arrest.”
“The impact of FOSTA was a disaster,” Rachel West and Alex Makulit from the US PROS Collective told Motherboard, in an emailed statement. “In the worst cases, FOSTA has aided in pushing sex workers into more dangerous working conditions: we face more harm, violence and even death. Increased poverty, especially since the pandemic and especially among women, and low wages in many other jobs traditionally done by women means that people don’t have the option to leave sex work. So we are forced to take clients we would previously refuse and take risks to earn enough to live on.”
While FOSTA was touted as a way to curb human trafficking by creating liability for platforms that facilitated trafficking, it simply didn’t work. In fact, the increased vulnerabilities of sex workers resulting from FOSTA, combined with the new difficulties police had tracking traffickers, actually meant that FOSTA increased cases of human trafficking. And since its introduction, FOSTA has only been used once to charge a website promoting trafficking.
“It’s important to remember that we have all sorts of businesses and industries that have trafficking and we don’t strive to hold them accountable in the same way as we do in the sex trade,” Chris Ash, an Anti-Violence Advocate and Trafficking Survivor said. “Nobody is doing a mass campaign to shut down grocery stores even though they may be selling cabbage that was produced in labour trafficking.” They continued by stating that we “don’t always have to rescue” victims of human trafficking in the sex trade through raids and online moderation, but instead, give them options, choices, and self-determination so that they feel empowered and safe to leave.
While some large, mainstream anti-trafficking movements identify sex work as the root cause of trafficking and promoted FOSTA legislation, there are a growing number of anti-trafficking organizations who identify the “root causes of trafficking as the lack of decent work opportunities or social protections and restrictive migration policies,” Borislav Gerasimov, a program coordinator for the Global Alliance Against Traffic in Women, told Motherboard. “In this analysis, people become victims of trafficking because they can't find a job in the formal economy (for example, if they are an undocumented migrant or a former felon or there are simply no jobs), or a job that pays living wage, and they can't afford to pay their rent, or healthcare costs, or children's education, and so on.”
In other words, trafficking—whether it's in the sex, agriculture, construction, domestic work, and hospitality industries—is the result of deeply-rooted systems that disempowers of women, minorities, and migrants. And policing online content, as FOSTA did, will not change that.
Even so, Section 230 is nearly thirty years old, and it has been outpaced by the technology it was meant to legislate. “There are problems with the state of the internet and the dominance of a handful of online platforms,” said Kelley, the EFF strategist. “Instead of SAFE TECH, Congress could pass a strong consumer data privacy law and update antitrust laws to address online services’ surveillance-based business models and their anticompetitive behavior.”
Mariah Grant, Director of Research, Organizing and Advocacy at the Sex Workers Project of the Urban Justice Center, said that in updating internet laws, we cannot ignore the vulnerabilities of those that will bear the brunt of that legislation—including sex workers.
“Legislation like this [SAFE TECH] is not about protecting people online, because it sacrifices one group of people for another," Grant told Motherboard. "It is not equitable or inclusive in the ways it would protect people and does not take into consideration the human rights of sex workers,”
To protect victims of human trafficking, discrimination, and harassment in the sex trade, supporters of bills like the SAFE SEX Workers Study Act say sex workers must be heard and included in any legislation that would affect them. Especially when their work—and their livelihood—depends on it.
“We need to be extremely careful and thoughtful about these reforms and their consequences," said Kelley.