Advocates for sex workers vindicated in Section 230 debate by new GAO report
Justice Department has only prosecuted one case using an anti-sex trafficking law and advocates say it hurts free speech
Advocates are rallying behind a new government watchdog report that says federal prosecutors have hardly used a 2018 anti-sex trafficking law that critics predicted would miss its intended mark while inadvertently harming sex workers and chilling free speech online.
Supporters of the law, known as SESTA-FOSTA, said it would be a boost for law enforcement agencies fighting sex trafficking, including of minors, by giving them the tools to go after websites commonly used for commercial sex.
The SESTA-FOSTA moniker comes from a combination of two 2018 bills: a Senate bill, which was called the Stop Enabling Sex Traffickers Act, and a House bill called Fight Online Sex Trafficking Act.
But the new report, published by the Government Accountability Office last week, found that prosecutors have so far only once filed charges under the law, which amended a 1996 statute known as Section 230 of the Communication Decency Act to hold internet platforms liable if they knowingly promote or facilitate prostitution or sex trafficking.
That case is ongoing, but those who warned that the law might do little to curb sex trafficking while endangering individuals who engage in consensual sex work and chilling free speech online are now pointing out that their forecasts have, so far, proven correct.
“The report indicates what advocates for sex workers and others told members of Congress while they were debating FOSTA: The law is unnecessary to protect victims of sex trafficking and will actively harm sex workers,” said Aaron Mackey, a senior staff attorney at the Electronic Frontier Foundation, which is representing clients suing for the law’s repeal.
Advocates whose concerns were largely ignored during the 2018 debate over SESTA-FOSTA say the report paints a cautionary tale about writing laws without input from marginalized communities likely to be affected by their implementation. With lawmakers again considering additional, similar changes to Section 230, advocates say those concerns must now be heard.
“Until we fully study the unintended consequences of amending Section 230 by investigating the impact of SESTA-FOSTA, we cannot pretend that uncareful changes to Section 230 will not harm the most vulnerable and marginalized members of society,” said Sarah Roth-Gaudette, executive director of the digital rights nonprofit Fight for the Future.
One explanation offered by Justice Department officials to GAO for why the law has not been widely used is that it is still relatively new. Another reason is that “prosecutors have had success using racketeering and money laundering charges against those who control such platforms,” according to the report.
Mackey says the findings vindicate his clients’ argument that SESTA-FOSTA violates the First Amendment because the law criminalizes legal adult speech about sex work.
“FOSTA’s speech restrictions are unconstitutional precisely because the government already can use existing law to prosecute sex traffickers in ways that would not violate the First Amendment,” he said. “The GAO report states that federal prosecutors admitted that they can and do still use those other laws to target sex traffickers, rather than FOSTA.”
Justice Department officials said they could envision greater use of the law in the future, but advocates argue that its unintended consequences outweigh any positives when there are existing alternatives.
“Lives were put in danger when sex workers in the U.S. were forced to retreat into the darkest corners of the internet without visible structures for protection,” Roth-Gaudette said. “And now we learn that the law has only been used once in its three-year history.”
In the same time frame, the ramifications for consensual sex workers have been serious. Rather than navigate unclear criminal risk by seeking to weed out content that might involve trafficking while allowing consensual sexual content, many prominent websites, including Reddit, Google, Microsoft and Craigslist, shuttered certain services, de-platforming sex workers.
As a result, sex workers — many of whom are minorities or members of the LGBT community — have been forced to return to bar-based or street-based work, which puts them in increased danger of violence or arrest.
Advocates say the next step in studying the effects of SESTA-FOSTA is to focus on how it has affected sex workers and other marginalized communities. In January, Fight for the Future led 70 groups in opposing future changes to Section 230 until Congress passes legislation by Rep. Ro Khanna, D-Calif., and Sen. Elizabeth Warren, D-Mass., to study the impact on sex workers.
“We need to understand the impact on the other side, on the community side,” said Kate D’Adamo, a partner with the organization Reframe Health and Justice, a sex worker advocacy group that co-signed the letter.
D’Adamo, who helped organize the first-ever Sex Workers Day of Advocacy on Capitol Hill in 2018, said advocates will continue to argue for the study and eventual repeal of SESTA-FOSTA. But the overarching goal is to ensure that marginalized voices on the sidelines of policy debates don’t go unheard.
“This is a very important moment to not only ask, ‘How do we move forward with new information?’ but also, ‘What are we doing to marginalized communities when we erase directly impacted people from this conversation?’” she asked.