Now that Backpage.com has been shut down and state and local governments in Texas are cracking down on sex crimes, let’s explore current anti-sex trafficking laws and their impact on sex workers.
In April 2018, law enforcement agencies seized Backpage.com as directed by the Federal Bureau of Investigation (FBI). Backpage.com was widely considered an online sex marketplace site.
Backpage’s shutdown is viewed as a massive legal victory in the war against child exploitation and forced prostitution. According to the National Center for Missing and Exploited Children, approximately 75 percent of cases submitted related to Backpage.com posts. California prosecutors reported that 90 percent of Backpage.com’s income was derived from adult sex ads.
California and Texas law enforcement authorities raided Backpage’s headquarters in Dallas in 2016. Backpage’s Carl Ferrer (CEO0, Andrew Padilla (COO), James Larkin and Michael Lacey (former owners) all faced pimping-related charges.
The court ruled that Backpage.com was protected under the First Amendment and that the site wasn’t legally responsible for third parties’ speech.
However, in January 2017, Senate investigators determined that Backpage was complicit in “obscuring” child-trafficking ads on its site.
Thereafter, a survivors’ documentary (“I Am Jane Doe”) targeted Backpage. It argued that Backpage should be held liable for sex-trafficking advertisements.
Federal Anti-Sex Trafficking Bills
President’s Trump’s recent anti-sex trafficking bill went into law in April 2018. Although SESTA/FOSTA (“Stop Enabling Sex Traffickers Act”/”Fight Online Sex Trafficking Act”) is a federal law in the United States, it’s also affecting sex workers elsewhere.
Activists say that’s necessary to decriminalize both sex work and buyers of sexual services to put an end to sex trafficking once and for all.
The new sex trafficking law is intended to reduce sex trafficking. Many argue the laws threaten the future of the Internet and the right to free speech. It’s already affected sites like Google, Reddit, MyRedBook, RentBoy, and Craigslist personals.
What is SESTA/FOSTA?
Both SESTA and FOSTA are intended to reduce illegal online sex trafficking activities. Sex worker advocates hail both as victories.
However, both SESTA and FOSTA create notable exceptions to the 1996 Communications Decency Act. Section 230 of the Act means that site publishers may be held responsible if a third party posts prostitution advertisements, including ads for consensual sex work, on the publishing platform.
The goal of the bills is to simplify online prostitution ring policing. However, those against the laws argue that they don’t directly target illegal sex trafficking. Instead, the laws threaten to “increase violence against (prostitutes) those most marginalized” and it increases the ability of censors to limit free speech online.
Law professor Eric Goldman wrote that SESTA/FOSTA would “expose Internet entrepreneurs to additional unclear criminal risk…and…chill socially beneficial entrepreneurship…outside the bill’s target zone.”
Will SESTA/FOSTA Make Sex Work Safer?
Supporters of SESTA/FOSTA argue that the new laws allow law enforcement agencies to better police online sites and allow survivors of sex-trafficking to bring lawsuits against these websites (for the role they played in the facilitation of their victimization).
Those on the opposite side of the debate say this is disingenuous because, in reality, the Internet adds a layer of safety to sex workers as it simplifies law enforcement’s ability to gain evidence and document illegal activities.
Anecdotes and research studies say that the Internet provides sex workers with a safe way to offer services and to vet and select potential clients.
If the sex worker is forced to go to the street to find a client, he or she has fewer safety precaution measures. He or she has no ability whatsoever to prescreen clients. He or she has no ability to ensure that they can perform sex work in a secure, safe location.
Those against SESTA/FOSTA also argue it doesn’t differentiate consensual with non-consensual sex work, even when the worker (or content) is protected by local laws. For instance, Nevada’s laws make prostitution activities legal in certain parts of the state.
Failure to differentiate consensual and non-consensual sex work reflects international legal standards of a United Nations protocol (2000). A 2014 addendum examining consent issues found that consent is relevant when determining the occurrence of human trafficking.
What Do Sex Traffickers Say About the New Laws?
Sex workers seem to argue that the laws make them less safe than before. A sex worker-friendly site hosted offshore told the Daily Dot that prostitution would be “pushed right back on the street…in hotel bars…and the predators will come out to play. (The law) creates more victims…”
Moreover, the new laws make it more challenging to identify perpetrators. A State Department report (2014) reports that more than 390 investigations of sex-trafficking ultimately resulted in prosecuting 105 defendants and, of these, courts convicted almost 80 of them. However, just 19 of these were sentenced to prison (sentences from 2 -10 years).
Statistics show it’s challenging to prosecute sex-traffickers individually. SESTA/FOSTA seeks to attack online sites that facilitate sex-trafficking, even if the Internet may simplify the task of identifying perpetrators.
Does SESTA/FOSTA Endanger Sex Workers?
The new laws may endanger at least one type of sex worker. The adult sex worker seeking to perform his or her consensual sex work safely may face more risk because of SESTA/FOSTA. In addition:
- Because Backpage and similar sites have been shut down, the sex worker may lose transparency surrounding his or her work.
- The non-consensual sex-trafficking victim may also be more vulnerable now because he or she is less visible. He or she may be forced into the darker corners of real life and/or the dark web.
What Does SESTA/FOSTA Accomplish?
Those arguing against SESTA/FOSTA say the new laws effectively create a tear in the governance of the Internet.
For the last 22 years, the 1996 Communications Decency Act has governed the function of the Internet in the United States. Section 230 of the Act supported the courts’ ability to fight for Internet free speech.
The previous law kept server hosts and site owners from suing each other when inflammatory comments were exchanged.
This clause allowed many websites, large and small, to exist.
Have SESTA/FOSTA Helped or Hurt Canadian Sex Workers?
Sex workers, advocates, and others argue both sides.
In Canada, it’s legal to sell sex but it’s illegal to buy sexual services. Those with negative SESTA/FOSTA views argue that Canada’s sex workers will now have a smaller number of potential clients and, overall, the law will promote a less safe environment for all sex workers.
Less transparency may negatively affect trans prostitutes and/or prostitutes of color.
The loss of Backpage has prompted some Canadian sex workers to advertise on smaller classified sites like Leolist.
Optimists believe that SESTA/FOSTA may drive more U.S. sex buyers to Canada.
How Does the Sex Trafficking Crackdown Impact Sex Workers?
Sex workers’ rights groups have argued that laws targeting child sex-trafficking often result in harming these marginalized workers. They argue that decriminalizing the industry would have more positive effects.
Craigslist and/or Backpage defenders argue that transparent websites provide sex workers with some control and simultaneously provides a means for law enforcement agencies to detect sex-trafficking.
What Did SESTA/FOSTA Criminalize?
In summary, SESTA/FOSTA increased Internet platforms’ liability for third-party content. It also expands liability for any website that knowingly facilitates sex-trafficking. The meaning of this phrase is not yet clear.
SESTA/FOSTA provides individuals with the ability to bring civil lawsuits against these Internet sites.
Owners and operators of Internet sites hosting third-party content, list-servs, and possibly apps that promote and/or facilitate prostitute face federal prosecution.
Questions about SESTA/FOSTA are legion. For instance, if we ask “What does facilitating prostitution mean?” under the bill, we don’t yet know.
We do know that a website engaging with the sex trade may have liability for holding any content that relates to sex work or the sex industry.
Do Individual Sex Workers Face Higher Risk of Criminalization?
No. The individual sex worker isn’t in SESTA/FOSTA’s crosshairs. Clearly, law enforcement agencies have fewer numbers of workers to target now.
In comparison, the website owner, maintenance partner, or listerv/site operator with third-party content faces increased risk.
What Steps Should I Take to Protect Myself?
Houston’s law enforcement agencies are primarily focused on sex buyers, not sex sellers.
If you’re a sex worker:
- Reach out to your local community.
- Don’t use any website to offer sexual services without carefully reading the site’s Terms of Service.
If you own, manage, or maintain online assets targeting the sex industry, why not consider diversifying your income.
Remember to put safety first. Realize that state and local law enforcement professionals are organizing stings or watching smaller sex industry-focused sites.
Are You Facing Sex-Trafficking or Prostitution-Related Charges?
You need an experienced prostitution attorney as soon as possible. Call The Law Office of Matthew D. Sharp in Houston now at 713-999-4634 to request an initial case evaluation.