As lawmakers from both parties move closer to changing a foundational law of the internet to rein in the power of large social media companies, they may be forced to reckon with the concerns of a constituency rarely heard from on Capitol Hill — sex workers.
Alarmed by recent bipartisan enthusiasm for changing the 1996 law, known as Section 230, advocates for the sex work industry are raising their profile by joining with civil rights and racial justice groups to explain the dangerous consequences that could result if lawmakers move forward without listening to voices often marginalized in public debate.
Sex workers have dealt with such consequences since 2018, when President Donald Trump signed into law an anti-sex trafficking bill known as FOSTA-SESTA that Congress passed by overwhelming margins. FOSTA stands for Allow States and Victims to Fight Online Sex Trafficking Act, while SESTA stands for Stop Enabling Sex Traffickers Act.
The law amended Section 230, which protects online platforms from lawsuits related to third-party content posted on their sites, to make an exception for sites that host content promoting sex work involving sex trafficking victims.
At the time, Rep. Ann Wagner, R-Mo., who wrote portions of the law, called it the “most effective way to ensure websites can no longer traffic children with impunity.”
But rather than curb trafficking, advocates say, the law has placed sex workers who engage in consensual transactions in the type of danger they had begun to avoid by using online services to conduct business. It was a message they tried to get across before Congress passed FOSTA-SESTA, but their concerns fell on deaf ears.
“There’s no politician who gains political currency for standing up for the voices of sex workers. They’re not a voting bloc; they’re not a donor bloc; lobbyists don’t represent them on Capitol Hill,” said Rep. Ro Khanna, D-Calif., one of only 25 House members to vote against the bill.
“And they were just totally shut out,” Khanna said. “They were simply invisible.”
After Trump signed the law, sex work advocates began working to increase their influence with lawmakers. They organized the first-ever Sex Workers Day of Advocacy on Capitol Hill in 2018 and worked with Khanna and other lawmakers on legislation to study the effects of FOSTA-SESTA on marginalized groups, including sex workers.
“There are so many people advocating for the criminalization of the sex industry, whether it’s law enforcement or religious movements, folks who think they can criminalize the sex industry out of existence,” said Kate D’Adamo, a partner with the organization Reframe Health and Justice. “They have people on the Hill meeting with offices regularly, and sex workers don’t.”
Last month, Reframe Health and Justice was one of several sex worker advocacy groups that signed a letter from more than 70 organizations to the Biden administration and Congress warning that further changes to Section 230 would do more harm to already at-risk communities than it would to embattled social media companies such as Facebook and Twitter.
The organizations said Congress should pass Khanna’s bill to study the effects of FOSTA-SESTA before passing any additional laws to change Section 230.
“It’s a cautionary tale,” Khanna said. “Could you craft reforms to Section 230 that I could get behind? Yes. But we have to be thoughtful and understand that we may not be able to anticipate all the consequences.”
‘Independence, accessibility and safety’
In the years before Trump signed FOSTA-SESTA, sex workers had begun to use various online platforms to conduct business in a safer and more efficient way.
“When you have a community that’s marginalized and policed in traditional spaces, every time a new technology creates a new open platform, those people are going to flock to it because they have to,” D’Adamo said. “For sex workers, moving to the internet was really about independence, accessibility and safety.”
Using online services, sex workers could have direct contact with clients without placing themselves at risk while negotiating services, prices and boundaries, including condom use.
Meanwhile on Capitol Hill, a crusade had begun against Backpage.com, a website previously known for hosting ads for sex work. In court, Section 230 had helped protect the site against claims that it enabled sex trafficking. But in 2017, a Senate investigation found the website complicit in trafficking. Lawmakers began crafting bills that eventually became FOSTA-SESTA.
When the bills became law, the chilling effects that sex workers had tried to warn about came swiftly. Rather than expose themselves to what legal experts called unclear criminal risk by attempting to differentiate between consensual sexual content and content that might involve trafficking, websites simply shuttered certain services and de-platformed sex workers.
Reddit banned several sex-related communities. Microsoft cracked down on nudity over Skype. The Google Play store updated its policies on apps promoting sexual content. And Craigslist closed its personals section, explaining that FOSTA-SESTA had created an online environment in which “any tool or service can be misused.”
“We can’t take such risk without jeopardizing all our other services,” the company said.
D’Adamo considers the actions by the technology industry a demonstration to lawmakers that, in the wake of FOSTA-SESTA, they are taking Section 230 seriously, lest they lose their legal protections.
“But they are taking a cue from Congress that the way to show that due diligence is to harass and marginalize sex workers,” she said. “And once we start criminalizing digital spaces, we’re reinstituting all of the risks that sex workers moved into digital space to avoid.”
‘The opinion has shifted’
Since FOSTA-SESTA became law, D’Adamo and others have sought to explain its impact on sex workers to lawmakers. Many sex workers have been forced to return to bar-based or street-based work, where they are in increased danger of violence or arrest.
The advocacy is slowly working. Sen. Elizabeth Warren, D-Mass., introduced companion legislation to Khanna’s House bill, which amassed 18 co-sponsors in the 116th Congress, more than the total number of Democrats who opposed FOSTA-SESTA in 2018. Khanna said he plans to reintroduce his bill in the current legislative session soon.
“The opinion has shifted,” Khanna said. “People have now heard stories of sex workers being abused and having to go on the streets and harassed. There’s a recognition of the harm that has been caused, but there was not that awareness when this was rushed to a vote.”
The Khanna-Warren legislation would direct the Health and Human Services Department to study how the lack of access to online tools previously used by sex workers has affected their work. HHS would be required to conduct surveys of sex workers about their experiences with violence and law enforcement, exploitation and the impact on their housing and health.
It could be a while before Congress votes on the proposal, Khanna said, but he is hoping for committee hearings on the topic in the coming months. Meanwhile, Democrats such as Sen. Ron Wyden, D-Ore., an original author of Section 230, are pushing legislation that Wyden says would be a more effective way of protecting victims of sex trafficking than approving more carve-outs to Section 230.
“If we don’t understand the impact of regulating digital space, then we really can’t make good policy,” D’Adamo said. “And we can’t just silo out the sex industry as the canary in the coal mine, because at the end of the day, we’re going to end up disproportionately harming other marginalized people.”