Biden Has a Plan to Tackle Online Harassment. What Does It Actually Say?

President-elect Joe Biden's plan to end violence against women is long, detailed, and ambitious. It focuses on sexual abuse survivor support and would offer material support like housing and grants to people affected by domestic violence. It's a refreshingly survivor-centered proposal in the eyes of revenge porn activists—but for a plan that covers so many issues, it's conspicuously missing any mention of sex work.   

"President-elect Biden’s plan to end violence against women is extraordinary in its breadth and depth of understanding of the ways women experience violence, the culture that enables it, and the consequences for women’s access to housing, education, and opportunities in the workplace," said Congresswoman Jackie Speier, who introduced the Stopping Harmful Image Exploitation and Limiting Distribution (SHIELD) Act, which would make it a crime to distribute intimate images without regard for that person's consent. 

Some of the key points in Biden's plan include ending the national backlog of hundreds of thousands of untested rape kits, forming a housing grant program tailored to survivors of domestic and sexual violence, allocating $5 billion to community organizations to provide cash grants to survivors, and addressing the link between gun violence and violence against women, with both social awareness campaigns and more stringent gun control laws. Reauthorizing the Violence Against Women Act, first introduced by Biden in 1990, will be one of Biden's top first 100 day priorities, according to the plan.

Among all of this, a relatively short but important section of the plan outlines Biden's intent to "confront online harassment, abuse and stalking." While specifics under this heading are still vague, it proposes creating a National Task Force on Online Harassment and Abuse, giving more funding to law enforcement, and support for federal and state legislation for the criminal consequences of spreading intimate images nonconsensually. 

During the pandemic, revenge porn victims and domestic violence survivors have been even more at-risk of abuse, isolated from getting help. At the same time, more people than ever are using the internet to support themselves and earn an income—including an influx of people entering the sex working industry for the first time via platforms like OnlyFans. A plan that aims to tackle online abuse would need to center those people.

Overall, the experts I talked to in revenge porn victims advocacy fields said they're encouraged to see the incoming administration recognize the diverse needs of sexual abuse survivors. But others still have reservations about how this plan will look in action, and how it will actually affect lives online and off—especially the lives of marginalized groups such as sex workers. Leaving consensual, commercial adult content out of any plan for internet reform would be willfully ignoring how the internet largely works.

Here are three points outlined as part of the online harassment section, and how experts assess each.

Biden's national task force against online harassment, according to the plan, would include "federal agencies, state leaders, advocates, law enforcement, and technology experts." The outline is vague on what agencies, what sort of advocates, and which technology experts will be tapped for this task force, but we already know that Biden's transition team includes executives from big tech companies like Uber, Amazon, and Lyft.

The group will study "rampant online sexual harassment, stalking, and threats, including revenge porn, deepfakes, and the connection between this harassment, mass shootings, extremism and violence against women" and make suggestions to private and public institutions based on their findings.

Mary Anne Franks, a University of Miami law professor and president of the Cyber Civil Rights Initiative, told me she's particularly impressed with this aspect of the plan. Franks also helped draft the SHIELD Act.

"It is incredibly validating to see the incoming administration recognize how technology-facilitated abuse jeopardizes not only women's physical safety, but also their rights to expression, privacy, education, professional achievement, and civic participation," Franks said. "If the administration ensures that the people it enlists to carry out this ambitious plan have expertise in the intersection of civil rights, technology, and extremism, then there is very good reason to be optimistic that this plan could revolutionize women's rights to expression, safety, and democratic participation."

But if the task force doesn't include sex workers, it's missing a vital component to women's experiences online. 

"Centering expanding the safety net for survivors is exactly the right move," Kaytlin Bailey, sex worker rights advocate and host of the Oldest Profession Podcast, told me. "But in order to really understand how this bill is going to affect people, listen to sex workers, [a group] missing from the table, that could shed a lot of light on what the implementation of the policy will actually look like in affected communities." 

Sex workers and the adult sex industry in general get no mention in Biden's 7,500-word plan—a dangerous oversight, as many anti-trafficking organizations consider sex work itself violence against women, and use this reasoning to legislate against sex workers' rights. These are the same organizations that lobbied for FOSTA/SESTA, which are currently pushing for the passage of the Eliminating Abusive and Rampant Neglect of Interactive Technologies Act, which similarly claims to target trafficking but would be destructive for internet freedoms. Many sex trafficking organizations make it their primary mission to pressure elected officials to support new laws for the sake of women and children, while eroding the safety of people using the internet to sell sex safely, or for actual trafficking victims to seek help.   

Adult industry attorney Maxine Lynn said she'd like to see the plan amended to recognize sex workers' unique needs. "I’d like to see an acknowledgment that consensual sex workers are deserving of protection equal to that of anyone else, and that the government is ready and willing, and has means in place, to support that end," she said.

"All of this sounds like a good idea but so long as you're operating from the faulty foundation of conflating consensual sex work with violence against women, all of this falls apart," Bailey said.

Right now, 46 states and Washington, D.C. have laws against non-consensual porn. But there's no federal law in place. This doesn't only mean that Wyoming, Mississippi, South Carolina, and Massachusetts don't have legal precedent against non-consensual porn, but that it's more difficult for victims of NCP to take legal action across state lines. Biden's plan, which supports the SHIELD Act, will address this issue. The SHIELD Act, which has bipartisan support, would bring the criminalization of spreading non-consensual, intimate images to the federal level.

"It’s high time the federal government imposed a uniform standard that can be applied nationwide, but what the administration must remember in order to be successful in curbing these issues is that the conversation must be centered on those most impacted by online harassment and NCP," Speier said. 

Ann Olivarius, founder of McAllister Olivarius, a law firm that specializes in non-consensual pornography, said that she "cannot stress enough" the importance of federal legislation with criminal and civil penalties for online harassment—including image-based abuse. "A uniform, fair standard that protects victims of online harassment across the whole country would be a tremendous advance," she said.

The burden on victims to track down their harassers online, who are often behind anonymous usernames around the country, keeps many from pursuing legal help or speaking out at all. 

The Biden administration proposes funding to "federal, state, and local law enforcement officials" investigating and prosecuting online sexual harassment, stalking, and threats. There's no exact amount of funds mentioned in the plan. 

Victims of NCP say that law enforcement is often unhelpful—and in the worst cases, retraumatizing or actively abusive—toward revenge porn and harassment victims. To see more funds go toward law enforcement is discouraging, but predictable to sex worker rights advocates.

"By conflating sexual contact or sexual content with sexual violence, not only do you undermine the agency of every adult consensual sex work, but you also actively prevent huge swathes of vulnerable people from being able to access any of the services that you're creating, for fear of stigma and arrest," Bailey said. "The federal government has a long and very recent history of making a big mistake here, and actively pushing vulnerable people into more dangerous situations."

Kamala Harris' track record as a prosecutor has given sex workers pause; she's a former top prosecutor who supported the passage of SESTA/FOSTA in April 2018, legislation that was proposed as a way to curb sex trafficking but instead did material harm to sex workers online. Sex workers lost safe online spaces to vet clients or advertise immediately after the legislation's passage, a negative impact they still feel today. 

But Harris seems willing to evolve her stances. After sex work activists lobbied on Capitol Hill in 2018, Harris told the Root that she's open to seeing sex work "decriminalized." In a town hall in April 2019, however, she clarified this to mean that she'd rather see the "pimps and the johns" criminalized—essentially describing the Nordic or end-demand model, which is proven to put those who trade sex in more danger. As of that town hall, she still maintained that Backpage, an adult advertising site, needed to be shut down to stop trafficking, disregarding the fact that its shutdown made independent sex workers using the site more vulnerable to exploitation, and actual criminals harder for law enforcement to find. 

When the federal government gets more money to chase down sex traffickers, it never spends it in ways that will help victims. In 2018—the year FOSTA/SESTA passed—the FBI spent 89 percent of its funds allocated for sex trafficking on targeting consensual sex workers, according to the bureau's own reporting.

A plan like this would take time and consistent effort to get right, according to the experts I spoke to. 

"To curb online harassment and image-based sexual abuse, the new administration must not rest its tools the moment new laws are passed," Olivarius said. "Real change takes time, perseverance and resources." 

Lynn said that the administration will need to spend time clearing up the differences between revenge porn and consensual porn, sex trafficking and consensual sex work—and getting it precisely right in the language of the law. 

"It is important that our representatives in government take the time, whether publicly through hearings, or privately through meetings and such, to learn about consent, privacy, agency, and other related issues," she said. "This will make them better representatives of the entirety of the population, which includes (of course, without limitation) sex workers, survivors of intimate partner violence, and people who are victims of online sex crimes." 

If, when Biden and Harris take office in January, they make an effort to listen to consensual sex workers and survivors of sexual violence—sometimes a community that's one in the same—they'll have a stronger plan than this already-promising proposal. But it'll require resisting a long history of legislation that suppresses sexual speech online.