Position on FOSTA-SESTA and its Impact on Consensual Sex Work and the Chilling of Sexual Speech On April 11, 2018, President Donald J. Trump signed into law the Fight Online Sex Trafficking Act and the Stop Enabling Sex Trafficking Act (hereafter, FOSTA-SESTA). The law purports to address the scourge of sex trafficking by, in the language of the legislation, “clarify[ing]” section 230 of the Communications Act of 1934 (47 U.S.C. 230, commonly known as the Communications Decency Act of 1996). Section 230 was originally inserted as a “safe harbor” provision in order to provide to websites and internet forums immunity from liability for the actions and posts of their users. FOSTA-SESTA removes this immunity in cases of potential sex trafficking, forcing sites and platforms to remove or censor any user content that could, per the language of the law, “promote and facilitate prostitution.”

As numerous commentators and advocates have pointed out, the term prostitution is undefined within FOSTA-SESTA, leading to a sweeping and unproductive conflation of sex trafficking and consensual sex work, and setting up an unduly broad and vague legal framework that:

Removes tools and safe reporting structures that law enforcement agencies have used in the past to identify and dismantle sex trafficking operations. FOSTA-SESTA was originally designed to address sex trafficking by allowing federal and state authorities to hold personally responsible websites and services, such as Backpage.com, for the illegal content on their platforms. However, the same sites and services FOSTA-SESTA was explicitly designed to attack were also valuable resources for law enforcement to disrupt sex trafficking networks and identify victims. It is worth noting prior to the law’s passage, the Justice Department itself raised serious concerns about FOSTA-SESTA.

Increases the risks to consensual sex workers by isolating them and limiting the tools available to them to advertise and screen clients. The absence of tools and resources (i.e., advertising streams, screening mechanisms, and communication channels such as so-called “bad date lists,” etc.) places sex workers—some of whom come from already vulnerable populations—in more precarious positions. Many sex workers have lost income and stability due to the lack of viable advertising streams. The removal of online resources has also forced some sex workers to pursue far riskier and more exploitative forms of labor (such as street-based sex work and working through pimps).

Chills sexual speech and curtails access to sexual content, including comprehensive, medically-accurate sex education. Even while FOSTA-SESTA was being debated by the U.S. Congress, many tech companies were quietly altering their terms of service and enforcing with previously unseen verve their “community standards” provisions. As a result, advocates, activists, and users of sites and services such as Google, Microsoft, Facebook, Instagram, Twitter, Reddit, Patreon, and PayPal have seen content censored or removed for merely making reference to sex work or sexual expression without warning or a process for contesting removal.

Recognizing the manifold threats posed by FOSTA-SESTA to both sex workers and to sexual freedom more generally, attorneys representing the Woodhull Freedom Foundation, Human Rights Watch, the Internet Archive, and two individual plaintiffs filed a lawsuit in the U.S. District Court for the District of Columbia challenging FOSTA-SESTA on the grounds that its provisions violate the First and Fifth Amendments of the U.S. Constitution. The suit, Woodhull Freedom Foundation et al v. United States, claims, per a press release by the Electronic Freedom Foundation (EFF), that FOSTA-SESTA “criminalizes a substantial amount of protected speech, and according to experts, actually hinders efforts to prosecute sex traffickers and aid victims.” AASECT supports the plaintiff’s interpretation that FOSTA-SESTA is unconstitutional as well as the plaintiff’s claims as to the law’s harms, should its enactment be allowed to proceed.

Whether or not provisions of FOSTA-SESTA are ultimately ruled unconstitutional, it is the position of AASECT that laws such as these chill sexual speech and run counter to AASECT’s mission and commitments to accessible, accurate sex education and social justice.

AASECT affirms its support for sex workers and the principle that “sex work is work.” AASECT broadly defines sex work, in accordance with recent policy statements by the World Health Organization (WHO) and Amnesty International, as a commercial exchange of sexual services undertaken by people of all genders for some form of remuneration, such as money, food, or shelter. AASECT supports the rights of sex workers to choose this work and to have access to resources that make sex work safer, including online advertising platforms.

AASECT further distinguishes consensual sex work, which is undertaken by consenting adults by choice, from sex trafficking, which is undertaken as forced or coerced labor. Sex trafficking is a result of force, coercion, or the threat of force, and often involves children.

Moreover, AASECT recognizes that sex workers, including sexological bodyworkers, surrogate partners, professional dominants, and lifestyle educators sometimes facilitate the work of sex educators, counselors, and therapists by providing hands-on adjunctive treatment services.

As a result, FOSTA-SESTA must be considered and treated as a critical threat to our membership, the work they do, and to the fundamental human right to access sexual knowledge and pleasure.

References:

Cole, S. (2018, June 28). Patreon Is Suspending Adult Content Creators Because of Its Payment Partners. Retrieved from https://motherboard.vice.com/en_us/article/vbqwwj/patreon-suspension-of-adult-content-creators

Greene, D. (2018, June 28). EFF Sues to Invalidate FOSTA, an Unconstitutional Internet Censorship Law. Retrieved from https://www.eff.org/deeplinks/2018/06/eff-sues-invalidate-fosta-unconstitutional-internet-censorship-law

Horn, T. (2018, June 30). Sex-Worker Advocates Sue Over Internet ‘Censorship’ Law. Retrieved from https://www.rollingstone.com/culture/culture-features/sex-worker-advocates-lawsuit-internet-censorship-sesta-fosta-666783/

Lennard, N. (2018, June 13). Law Claiming to Fight Sex Trafficking Is Doing the Opposite — By Cracking Down on Sex Work Advocacy and Organizing. Retrieved from https://theintercept.com/2018/06/13/sesta-fosta-sex-work-criminalize-advocacy/

Q, S. (2018, May 25). New Law Forces Sex-Trafficking Victims to Streets, Dark Web. Retrieved from https://www.rollingstone.com/culture/culture-features/anti-sex-trafficking-advocates-say-new-law-cripples-efforts-to-save-victims-629081/

Palmisano, B. (2018, July 16). FOSTA-SESTA Threatens Sex Worker Livelihoods: What Mental Health Providers Should Know. Retrieved from https://www.psychiatryadvisor.com/practice-management/how-mental-health-clinicians-can-help-sex-workers-fosta-sesta/article/780835/

Romano, A. (2018, April 13). A new law intended to curb sex trafficking threatens the future of the internet as we know it. Retrieved from https://www.vox.com/culture/2018/4/13/17172762/fosta-sesta-backpage-230-internet-freedom

Stryker, K. (n.d.). How an Anti-Sex Trafficking Bill Is Changing the Internet. Retrieved from https://www.teenvogue.com/story/fosta-sesta-anti-sex-trafficking-bill

Tierney, A. (2018, April 2). Sex Workers Say They’re Being Pushed Off Social Media Platforms. Retrieved from https://www.vice.com/en_us/article/3kjawb/sex-workers-say-theyre-being-pushed-off-social-media-platforms

Woodhull Files Federal Lawsuit Challenging FOSTA. (n.d.). Retrieved from https://www.woodhullfoundation.org/fosta/