EFF vs. FOSTA
In April of this year, Congress overwhelming passed the Fight Online Sex Trafficking Act (FOSTA). Ostensibly, the bill goes after online services that allow innocent victims to be trafficked into sexual slavery. The reality … is a bit different. And last week, the EFF has joined a lawsuit to try to stop it:
Two human rights organizations, a digital library, an activist for sex workers, and a certified massage therapist have filed a lawsuit asking a federal court to block enforcement of FOSTA, the new federal law that silences online speech by forcing speakers to self-censor and requiring platforms to censor their users. The plaintiffs are represented by the Electronic Frontier Foundation (EFF), Davis, Wright Tremaine LLP, Walters Law Group, and Daphne Keller.
FOSTA, or the Allow States and Victims to Fight Online Sex Trafficking Act, was passed by Congress in March. But instead of focusing on the perpetrators of sex trafficking, FOSTA goes after online speakers, imposing harsh penalties for any website that might “facilitate” prostitution or “contribute to sex trafficking.” The vague language and multiple layers of ambiguity are driving constitutionally protected speech off the Internet at a rapid pace.
You can read through the EFF’s justification here. Their complaint alleges that FOSTA is a vague in how it defines sex trafficking and is an overly broad unconstitutional assault on free speech.
The War on Sex
I haven’t blogged on this subject at this site and my old blog, with an extensive essay on this subject, is dead. So you’ll forgive me if a spend a few paragraphs laying out the background here. There is a lot of misinformation floating around on the subject of sex work, online or offline. This post is going to be more polemical than I usually get because this is a subject I’ve gotten increasing vociferous about.
We are the midst of War on Sex Work that is largely becoming a replacement for the War on Drugs. This war is being pushed from the Right by anti-prostitution moralists and from the Left by anti-prostitution feminists. A war on sex work would be difficult given that about half of Americans think prostitution should be legal. And so this war has built on a tissue of falsehoods to claim that it is actually a war on “sex trafficking”.
We are constantly being told — by politicians, by the media and by the entertainment industry — that there is a national crisis of sex trafficking and specifically a crisis of child sex trafficking. But the evidence to support this claim, when you dig into it even a little bit, turns out to be a ziggurat of garbled statistics, junk social science and outright lies. My friend Maggie McNeill has devoted an entire page to debunking claims that are so common and oft-repeated, they are taken as gospel: that the average age at which a woman enters sex work is 13 (it’s mid-20’s); that there are 300,000 child sex slaves in the US (there are at most a few hundred), that sex trafficking and consensual sex work are inextricably linked (they aren’t); that the Super Bowl or other big events are magnets for sex traffickers (not at all).
It goes without saying that forced sexual servitude is an abomination and we should be fighting it. But if that’s what you’re concerned about, it seems like a good first step would be to decriminalize sex work for adults, as organizations like Amnesty International have advocated. Doing so would free up law enforcement resources to work the real problem rather than being devoted entirely to routine prostitution busts.
Let’s illustrate that with one example: about every year, the federal government runs a program called Operation Cross Country — a vast multi-agency operation to crack down on “sex trafficking”, at the end of which they will claim to have rescued something on the order a hundred underage sex slaves (which alone should tell us that we do not have anywhere close to 300,000 of them). Elizabeth Nolan Brown has done amazing work sifting through the propaganda and found that these operations typically arrest over a thousand consenting adults. Mixed in with those adults are usually a few dozen to a hundred underage sex workers, but most of these are doing it not because of enslavement but because they have run away or been thrown out of their homes). The operations also arrest a couple of hundred “pimps” but these are often people whose pimping consists of driving their girlfriend to an incall or processing credit card payments.
Now Operation Cross Country does occasionally rescue someone who is doing sex work against their will. So, let’s imagine that, instead of scrounging the country to arrest hundreds or thousands of consenting adults to find that needle in a haystack, we left the haystacks alone. Imagine if we directed all those efforts toward finding and arresting actual sex traffickers. But instead of taking that step, the War on Sex Work has chosen to intentionally blur the line between consensual sex work and involuntary trafficking, even to the ultimate absurdity of charging sex workers with trafficking themselves.
The prelude to FOSTA was a war on the website Backpage, which has been the focus of multiple lawsuits and accusations of sex trafficking due to its advertisement of sexual services. Federal judges had ruled that Backpage was protected by Section 230 of the Communications Decency Act, which insulates websites from being punished for user content. It was also not clear what exactly they were being accused of since the evidence that they were allowing the site to be used for sex trafficking was … information Backpage had given to authorities on ads they worried might involve trafficking or underage sex workers. And the Feds had previously sharpened their teeth by taking out MyRedBook and Rentboy, neither of which was accused of trafficking. Backpage shut down shortly after the passage of FOSTA amidst federal charges. But the charges were for facilitating prostitution and money laundering, not sex trafficking.
I’ve always had a libertarian bent on “sins”. But my opposition to the War on Sex Work has gotten more fierce over the last few years because (a) the War on Sex Work has been ramping up; (b) I have made a number of e-migos, such as Maggie, who are sex workers or former sex workers, which has made it personal; and (c) I have seen how the case for prohibition is supported by lies. The last part is what has drawn me into this debate so keenly. It offends me as a scientist. A good expression of how I feel is given in a recent you-really-ought-to-read-the-whole-thing post by Mark Draughn:
I’ve learned that laws against pimping are used to prosecute babysitters who got paid with money earned from prostitution, and that carrying condoms can be used as evidence of prostitution, which makes it harder for sex workers to follow safe sex practices. I’ve learned that cops treat transwomen sex workers as if they were men exploiting women sex workers. I’ve learned that it’s a myth that waves of sex workers come to cities for major events like the Superbowl.
My position on decriminalization has never changed. If anything, it has gotten stronger as the fight has gotten more serious.
FOSTA was ostensibly proposed to allow the federal government to crack down on online sex trafficking. This promise was predicated, like most of the War on Sex Work, on dubious stats. Sex workers vehemently opposed it but their voices were drowned out by supporters misrepresenting the law and celebrities making bizarre claims like ordering a sex slave was as easy as ordering a pizza. The veracity of that last claim is a bit undermined by our entire law enforcement infrastructure only being able to identify a small number of genuine trafficking cases — significantly fewer than the number of pizzas they ordered.
Sex Worker rights advocates, digital freedom advocates and libertarians made dire predictions about what was going to happen. Radley Balko probably put it best.
The war on Backpage is what happens when the moral right and moral left find common ground. It’s demagoguery butchering a scapegoat. It’s ignorant grandstanding that will exacerbate the very problem its proponents claim to fight, causing heaps of collateral damage along the way.
— Radley Balko (@radleybalko) April 7, 2018
So what has happened over the last three months? Exactly what was feared. Craiglist immediately shut down their personals section and Therapeutic Service section lest they be accused of aiding sex trafficking. VerifyHim, a service designed to help sex worker screen dangerous clients, shut down. Major websites not only shut out sex workers but even shut down non sex-worker sites that dealt with sex or sexual themes such as lingerie writers. This the definition of a “chilling effect”.
And as the weeks have rolled on, it has become painfully and immediately obvious that FOSTA has made things far far worse for sex workers. The internet had helped free most sex workers from anything approaching a pimp (or just an escort agency). By being able to run their own ads, sex workers could take control of their lives. But without that online advertising, many are … turning back to pimps. And even worse, the confused situation is making it more difficult for advocates to find actual victims of sex trafficking while making life easier for actual traffickers. You can read firsthand accounts of what FOSTA has done and how awful it has made things for consenting adults as well as the preliminary research into the actual impact of the law. In short, it’s bad. It’s just as bad as the sex worker advocates warned us it would be.
None of this is a surprise. It is what happens any time the iron fist of the state comes down on “sin”. It was so obvious what would happen that many sex worker advocates have become exasperated with the assumption that FOSTA was passed with good intentions and believe it was passed deliberately to make their lives worse.
Hysterical? Well, wars on sin have often engaged in what I call “harm enhancement” (as opposed to “harm reduction”). During the War on Drugs, we banned the sale of certain chemicals to Colombia that were used to facilitate drug manufacturing; the result was drugs that had carcinogens in them, which politicians hoped would persuade people to stop using them. A similar controversy erupted over paraquat pot, herbicides sprayed on marijuana that found that their way into people’s lungs. During prohibition, industrial alcohols were deliberately poisoned in an effort to stop people from drinking them.
And there is little doubt that the War on Sex Work has frequently seen increased danger as a deterrent. In many states, a woman simply having condoms on her is considered evidence of prostitution. Sex workers have reported being pulled over by cops and watching them poke holes in condoms. The closure of MyRedBook and Rentboy and Backpage did little to stop sex work but plenty to prevent sex workers from screening out dangerous clients. When a movement engages in policy after policy designed to increase the danger, I think it it reasonable to assume that it is deliberate.
The Bigger Picture
I think this even goes beyond sex work, however. Our political class has long had a hatred for Section 230 of the CDA, which they see as protecting speech they don’t like. The last year has been filled with attacks on Facebook and other social media for allowing “fake news” to percolate (the effect of which is very unclear). The effects of this bill go even beyond the impact on sex workers, bad as that has been. It is the camel’s nose in the tent of undermining Section 230 and turning the internet into a “safe”, controlled, gated, milquetoast community. And what better way to get the camel’s nose in the tent than through “solving” a vastly exaggerated crisis?
I have no idea what the Courts will do with this challenge. I suspect this challenge will be unsuccessful because federal judges have generally been weak where moral panics are concerned, having upheld clear constitutional violations like asset forfeiture. More specifically, they have repeatedly upheld overly aggressive sex offender registries based on false claims on recidivism. So I can easily see them upholding FOSTA based on equally false stats noted above. I’m already preparing myself to read Justice Kagan’s opinion for a unanimous Court that claims FOSTA is justified because of the 300,000 underage sex slaves that don’t, technically, speaking, exist.
And the War on Sex is about to get even worse. A bipartisan group of politicians is now trying to get banks to refuse to do business with sex workers or sex services, again under the aegis of fighting “sex trafficking” but in a law so loosely written it could apply to legal porn stars (as indeed Operation Chokepoint and other efforts to financially ruin sex workers have).
Maggie believes that we are currently in a moral panic similar to the “white slavery” panic of the late 19th century that led to the first laws against prostitution. I’ve seen a few moral panics before — Dungeons and Dragons, Satanic Cults, various drugs — but nothing on this scale. The current panic specifically reminds me of the Satanic Cult panic of the 80’s, mostly because of the charlatans running around claiming to be experts on sex-trafficking and making money teaching people “how to recognize the signs”. There is also the blind acceptance of claims, no matter how hysterical, by both politicians and the media, such as … the 300,000 sex slaves.
Moral panics can crash quickly. Or they can last centuries, as the moral panic over witchcraft did. I have no feel for how long this one will last. But now that FOSTA is law, the potential damage it will cause has dramatically increased.
Excellent post! Nothing more to add since I have long agreed with it.Report
Good post. It’s telling how the assumption of a massive child sex trafficking underground feeds into what extremists from both sides want to hear: pizzagaters vs. libruls and radfems vs. men/“fun feminists.”
Hiding the imaginary trafficking ring within the inner sanctums of the other guy’s power is a good excuse why actual proof is never forthcoming (plays Netflix conspiracy doc movie theme music).Report
It does seem very much like an updated version of the Satanic child sex rings that gripped America in the 80s.
This moral panic that doesn’t allow itself to be interrogated with facts and reason, just assertions. And any attempt to challenge it is evidence of guilt or complicity.
And as ever, the most uncomfortable truth borne out by facts is that the biggest threat any child has is from within the family.Report
Humans always had a queasy relationship with commercial sex. I don’t think we will ever be consistent about it. The idea of turning sex into a product that can be sold is both enticing and revolting to people because of the emotions wrapped up in it. For some people sex is a recreational activity about the same as playing a video game. Others want to elevate it into a physical act that represents the loving bound between two or so people. For the later the idea of sex as commodity to be brought or sold is disturbing.
Even ostensibly pro-sex, secular liberals aren’t quite sure what to make of it. There are people who are pro-sex worker but can’t stand anybody who might resort to a sex worker.* They are depicted losers that can’t find a willing partner on their own. This is especially true if the customer is heterosexual man.
*I find the respect for sex workers in certain leftist quarters really confusing. I’m generally for legalization but turning sex workers into some sort of symbolic champions of freedom seems weird.Report
I’m concur with Lee. Commercial sex has been around for all of human history or at least for most of recorded history. We know where the Romans had their brothels because of sexual artwork advertisements and graffiti. This might just be an intractable problem.
But uneasiness about commercial sex work has a bipartisan feel. There are plenty of left-leaning people who oppose legalizing commercialized sex work for a variety of reasons. There are people coerced/trafficked into sex use using the normal sense of the word but I also suspect something different is at play. I also think there are a lot of people who can’t fathom or imagine someone (especially a woman) going into sex-work willingly. I think a good amount of people see commercial sex work broadly
being part of inequality in general.
As a thought experiment it is kind of interesting. As far as I know I don’t know anyone who worked in commercial sex personally*. When I was in grad and law school, I did here plenty of stories in the “a friend of mine” or a “friend of a friend” category. These stories involved someone in their early to mid 20s usually, always enrolled in some kind of graduate or professional school, whom decided that the best way to avoid huge student loans was to go into escorting. Said hypothetical person always had high-paying customers who would fly him or her to some big city or resort for a weekend. Said hypothetical person always made it through grad school debt free and possibly with a job because of entertaining some rich, connected so and so.
I say hypothetical person because I suppose this can be true but I’ve never known someone to confess to it personally. I’ve had guys tell me that they lost their virginity to sex workers. I’ve had female friends tell me they considered doing sex work (usually foot fetish stuff) at a low point in their economic lives like during the recession years of 2007-2009. The grad student/sex worker stories remind me of all the stories I would hear about law firms offering their associates cocaine to do an all nighter on a big project. Lawyers do have known substance abuse issues and often grueling hours. I’ve worked long and late hours on legal projects as a proof reader and a lawyer. No one ever offered me cocaine. At best, you get a nice dinner and a car ride home. Often, you just work late and get your own dinner.
So imagine a world without want and minimal exploitative situations. University and above education is affordable. There is universal healthcare and all non-commercial sex work jobs pay a living wage. Whom goes into sex work and why? There are countries without the unique problems of the U.S. that have commercial sex work and legalized prostitution but my understanding of many of those countries is that most of their sex workers are immigrants from countries with more dire economic circumstances.**
I don’t know if there is a way to change the above without an education plan that would meet radical resistance. There are probably plenty of people who support legalizing sex work but would not want their own children to consider it. These people would probably react with a horror of “we raised you better!” if their child told them that they wanted to go into sex work. They certainly wouldn’t want sex work presented to their children as a viable career in school. “Hi children! Today Michael and Heather will tell you why sex work can be a lucrative and viable career!”
There is also the issue that plenty of people support sex workers while thinking that men who use sex workers are pathetic because they are paying for it. Can we legitimize sex work while still having strong taboos against the customers because they can’t get sex otherwise?***
*I’ve been in restaurants and upscale bars where I and my companions presumed that a couple at the bar consisted of a client and a sex worker more than once. This speculation is probably very unfair but there seems to be a distinct awkwardness in these couples that go beyond first date awkwardness.
**Based on reading and my own observations, the overwhelming majority of sex workers in Amsterdam are from foreign countries and most of the customers are either tourists or guest workers.
***About the only time I see someone be sympathetic towards a john in the media/public forum is if he is a widower who hasn’t had sex for a few years (from when is wife died) and was married to the same woman faithfully for decades.Report
There is always something sketchy about commercial sex even in the best circumstances. Its one of those lines of business that are always going to attract people of dubious ethics and morality because there are markets for sexual appetites that not even the most liberal and tolerant government can allow. Yet, because people want these things and will pay good money for them, there is some enterprising criminal that is willing to provide.
I do think that there are people who voluntarily go into commercial sex because they want to rather than because its the only type of work they can get. These people have some very different psychologies than most average people. The Atlantic had an article about people in porn several months ago. It was some time in the autumn of 2017 I think. It remarked with seeming sympathy towards porn actors how many of them never marry with a focus on one particular male star. My inner conservative kicked in. I can’t imagine that most wives would be particular happy with a husband whose job was having sex with other people. “Hi, honey we are having chicken for dinner. How was your day?” “Tough, I had to do a threesome and it took three or four takes.” Most people aren’t capable of that much generosity and lack of jealousy.Report
I think these are generally fair observations but I’m not sure they contradict the point of the essay. One can concede that there’s a bit more complexity to the issue than the standard libertarian argument for legalization allows but still agree that the approach favored by conservatives and carceral feminists is wrong.Report
I think Saul’s point is that people have so many contradictory opinions regarding commercial sex that there isn’t really enough political will to create an alternative system to that of the approached favored by conservatives and carceral feminists. They kind of win by default and by having the biggest coherent constituency for their preferred method.Report
Sure why not.
There are a ton of jobs which are legal and regarded as disreputable by a lot of people for any number of reasons.Report
I don’t think this is what Saul is saying. Saul is arguing that its really hard to legalize sex work when you see the customers of the services as sketchy. Having a job seen as disreputable is one thing, having the entire customer base seen as disreputable is another. Even people prone to argue for legalization or who are sympathetic towards sex workers often hate the customers of sex workers, which is nearly everybody if you include people who watch porn.Report
@leeesq Given that we *have* legalized (most/many kinds of) porn, I have trouble understanding the point of using it as an example of how everybody is a customer of a sex worker and thus people mostly hate nearly everybody (??) and thus we won’t manage to legalize sex work…. ????Report
What I meant is that people who go to sex workers for actual sex get derided en mass but thats kind of hypocritical because people who watch porn, which is a lot of people, are consumers of commercial sex and they don’t get derided for it generally. There are exceptions to the latter though.Report
“What I meant is that people who go to sex workers for actual sex get derided en mass…”
By whom? Any examples you could provide to show this?Report
This just goes to show you how innumerate the average American is. If this figure is to be believed, then that mean 1 in about ever 4,000 people in this country 18 or younger is a sex slave. To anyone with even a basic understanding of statistics, this is a preposterous likelihood.Report
I think it works out to about 4/1000, or 1/250 of the children under 18, actually, which is even more preposterous (but perhaps I’m the one whose math is shaky).
That is, it’s preposterous that they are sex slaves in the sense FOSTA means, but if you look at the child abuse stats, it’s highly likely that more children and teenagers than that are engaging in sexual acts with someone unwillingly and/or in a situation where their consent is severely compromised (parents, relatives, family friends, teachers, etc).
This particular unreasonable fear is, IMO and as Chip somewhat references above, substituting for a very reasonable fear of what actually happens. The level of denial around child sexual abuse leads to some pretty dumb theories.Report
It’s actually even dumber than that. Because you have to think about how big a clientele you need to sustain 300,00 sex slaves. Maggie estimates there are about 250,000 sex workers of any kind in the US. And of course, most men are not pedophiles. Given the percentages, you’d need a population of about 20 billion men.Report
Well said Michael.Report
First, excellent post! I can’t think of a single word of it that I disagree with, so therefore, you must be a genius ;). I’m a professional driver and in the aftermath of 9/11 I would see a lot of posters in the truck stops along the lines of “See Something; Say Something” in regard to suspicious activity possible related to terrorism. I’ve lately seen a lot of the same thing in regards to Sex Trafficking and, yes, the implication is that your average “lot lizard” is categorically a victim of same. So, yeah, classic moral panic. Actually, FWIW, I’m seeing a lot fewer working girls hanging around than in years past. I don’t know if they’ve changed their solicitation practices (is there an app for that?) or what, but it seems really rare now whereas in the past they could be a real nuisance.
I’d like to take this opportunity to throw a theory out there that I’ve been noodling on for a while. Is it crazy to view prostitution as a kind of polyandry? Now officially, polygamy — whether polygyny (multiple wives) or polyandry (multiple husbands) — is defined by sociologists (anthropologists) in terms of socially accepted or approved marriage relationships. But if you open up that definition to just look at patterns of who’s screwing who I believe it makes a lot of sense. The mechanics of reproduction are obviously different between men and women and these differences are reflected in our mating customs, so it doesn’t seem obvious to me why we should expect polyandry and polygyny, however defined, to present identically or to occur for the same reasons. If you strip away the hearts and flowers stuff and the social/cultural constructs we’ve built up around it, from a biological evolutionary standpoint mating certainly has a certain transactional quality to it. Prostitution seems to distill that down to its essence. Perhaps that’s why were so uncomfortable with it.Report
It’s not that off the mark. Someone who knows more about the subject may tell me this is wrong/misremembered but when I took family law in law school we discussed polyandry in the context of the legal history of polygamous marriage. IIRC most societies that practiced polyandry weren’t operating it as a mirror image of polygamy. More often it occurs in remote places where the proportion of men to women is very unbalanced. The idea is to allow sexual access to men who would otherwise be left out if the culture were strictly monogamous.
Hopefully this isn’t too off color but you may have heard the term ‘Eskimo brothers’ before.Report
Hopefully this isn’t too off color but you may have heard the term ‘Eskimo brothers’ before.
I honestly don’t believe I have but, in reading up on the subject, the Inuit are one culture where it’s been practiced so I’m not surprised the term exists. Where it’s an accepted practice one common form of it is for literal brothers to share a wife. This accomplishes the same end as primogeniture, avoiding the need to split up inherited lands among several heirs.Report
The math on sex workers – and now child sex workers – has always been a convenient fiction that serves the interests of some (admittedly well meaning) organizations. When groups that are fighting child endangerment sound the alarm to raise money, it helps their cause to say there are 300k children sexually enslaved. The math doesn’t (has never) added up and most people actually know that – especially specialists using the numbers. But because the narrative undergirds a higher cause folks avert their eyes.
This 2015 article from Wapo put the lie to the “100k children in the sex trade” (not sure where 300k comes from).Report
Just wanted to chime in that, not only is FOSTA causing these problems it is doing so by creating an exception to the blanket immunity previously enjoyed by websites.
That doing so for the laudable goal of stopping human trafficking has created the real-world problems in this post only highlights how important complete Section 230 immunity is, and how concerning it is to see the first law chipping away at that immunity.Report
The part about Operation Cross Country reminds me of a case from about ten years back in my county, where I read the police files (or at least that part they coughed up in discovery). It was a drug dealing case, with an inter-agency task force using confidential informants and stakeouts and the like, culminating in a SWAT raid. I ended up seeing this because they raided the wrong guy. Someone gave a false name to someone else, and the cops never thought to check this. Sheer genius. But what really struck me is that the entire case was about teenagers dealing a bit of weed to their high school buddies. The sheer level of overkill, giving this the major drug bust treatment, convinced me that my county is seriously over-policed. I suspect that these guys were bored out of their skulls, because they were set up for major drug cases that simply weren’t there. Some kid dealing weed to his buddies gave them something to do.Report
There is real sex trafficking and sex slavery in the world. I’ve never believed that is was a major first world problem, and I’m pretty much behind this article. Of course, no one seems to be doing anything else about the rest of the world’s problem with it.Report
I see that you mentioned section 230 of the CDA and the attempt to turn the internet into a “safe, controlled, milquetoast, gated community”.
SCOTUS Nominee Brett Kavanaugh would like to see that too, and he thinks the First Amendment rights of ISPs support it.