Sex Workers And Civil Liberties At Risk In Recent U.S. Anti-Trafficking Law


On April 11, 2018, the Stop Enabling Sex Traffickers Act (SESTA) and Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) merged to become one law after being passed through the House, the U.S. Senate, and the Oval Office. At first glance, the law appeared to be a step in the right direction in combating sex traffickers who use the anonymity of the Internet to lure in victims. However, the law also seems to have a host of side effects that are still being criticized by sex workers and civil rights advocates alike.

Those who supported the bill were as numerous as they were powerful. Nearly every senator voted to pass it, with the exception of D-OR Ron Wyden and R-KY Rand Paul. It was also eventually endorsed by the Internet Association, the lobbying arm of tech giants such as Amazon, Google, and Facebook, among numerous others. This group had initially been critical of certain definitions contained in the law that would allow the possibility for prosecutors to directly attack these tech giants, and the Internet Association only gave their approval once the definitions were neutered.

Those who supported the law, according to Wired, said that it would “allow victims of online sex trafficking to legally pursue websites that facilitate trafficking.” Proponents of the law also stated that, “those efforts [had previously] been thwarted by the liability shield in section 230 of the Communications Decency Act.” Section 230, which holds that that no poster or hoster of online content can be punished for another user’s posts, affects everything from Amazon reviews to Youtube videos to Facebook posts. FOSTA-SESTA added a clause that allows the authorities to prosecute a poster or hoster if they are “knowingly assisting, supporting, or facilitating a violation” of sex trafficking laws. With the changes that the law made to section 230, websites are likely to abandon content regarding sex work, much like Craigslist did.

The law was intended to hurt the business of sex trafficking by crippling its online capabilities, therefore dis-incentivizing the practice. Unfortunately, the legislators did not take into account the nuanced relationship between sex workers, sex traffickers, and the Internet. In many ways, physical sex trafficking and its incorporeal Internet counterpart were, and continue to be, at odds. When a sex worker can make a living using a website, they do not need a “pimp” to be the middleman. After all, a website does not share the trademark characteristics of a pimp, as it will not beat them, take their hard earned money, or psychologically manipulate them. The website simply connects the workers and their customers. The fact that these websites will now disappear suggests that, where sex workers were once independent, they now have no other choice but to be back on the streets and be beholden to exploitation by pimps and traffickers. As it turns out, this legislation simultaneously hurts vulnerable sex workers and helps sex traffickers in one fell swoop.

This new law also appears to have a downside for law enforcement, who, before its passage, had a great deal of success pursuing sex traffickers on the open clear net. Unfortunately, all but the most unmoderated, uncooperative websites will now retreat from hosting sex work content after the passing of this new legislation. Traffickers are likely to then abandon the more difficult-to-host mainstream websites that otherwise would have cooperated, rendering them harder to identify.

Despite the potential pitfalls of the FOSTA-SESTA bills, they were passed and made into law. This means that groups who have grievances will be taking action to counteract the negative effects. Those who fight for civil liberties will need to be meticulous, not only paying keen attention to the negative effects it may have on sex workers, but also to the impact on arrest and prosecution rates of sex traffickers. Meanwhile, entrepreneurs will have a void to fill, as safe networking of clients and sex workers will fetch a premium now that the market has been wiped clean. Examples of this are sites such as pinkdate.is, a website that seeks to combine smartphone usability, cryptocurrency anonymity, and dark web encryption, in order to solve this multifaceted problem. Unfortunately, while the bill was passed with the aim of resolving a problem, it exacerbates another, as sex workers will need to fend for themselves once again.