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.