The controversial Fight Online Sex Trafficking Act and Stop Enabling Sex Traffickers Act (FOSTA/SESTA) is due to face an important hearing this week.
‘Anti-trafficking’ legislation causing harm
Passed in 2018, FOSTA/SESTA is purportedly a piece of anti-trafficking legislation that has come under intense criticism for measures in the legislation that put sex workers at increased risk of trafficking and exploitation.
Under the law, online websites are held liable for “promoting or facilitating prostitution or sex trafficking.” In practice, this means that websites can be sued for users mentioning sex work or trafficking, and website owners face long prison terms if found guilty.
For many websites, the risk of litigation is too high leading to blanket bans on anything related to sex work and preventing sex workers from operating safely online.
Justice Rivera, a sex worker and trafficking survivor, told openDemocracy that this is “pushing people to more risky forms of work, like full-service sex work, or something that’s on the street”. Since its passage in 2018, data has shown that FOSTA/SESTA has contributed to an increase in trafficking cases. Furthermore, there has been just one criminal conviction under the legislation to date.
A 2020 study of the effects of FOSTA/SESTA found that 72.5% of sex workers had faced economic instability since the law’s introduction.
In San Francisco, the number of street-based sex workers tripled in 2018 and there was a 170% increase in human trafficking cases. CBS said both spikes appeared “to be connected to the federal shutdown of sex-for-sale websites”.
The Woodhull Freedom Foundation, an organization that defends sexual freedom, argued that the law violated freedom of speech and first sued the U.S. government in 2018. Though the case was dismissed, the Court of Appeals overturned the decision with a court eventually ruling in the government’s favor. Now, Woodhull is appealing that decision.
Groups in the U.S. who have been backing the law, including Christian groups, have been pushing for penalties against activities associated with pornorgraphy.
Lawrence Walters, a lawyer for Woodhull Freedom Foundation, said:
“online adult entertainment is constitutionally protected, so they weren’t going to convince Congress to censor that. But if they created these enormous penalties for anything associated with that kind of content… that’s an awfully good way to get porn off of the internet.”
Walters says that this has had a chilling effect on free speech and has pushed online platforms to ban all mention of sex work, with Woodhull Freedom Foundation concerned that they may even be subject to the law if they share information about sex workers’ rights.