The Human Cost Of FOSTA

Legal Issues

from the wasn't-it-supposed-to-save-lives dept

As you’ll recall in the run up to passing FOSTA last year, supporters of the bill — backed in secret by Hollywood lobbyists whose sole goal was to create liability for internet companies and force them to install filters — kept insisting that it was all about “protecting women.” There was an infamously misleading Public Service Announcement that supporters of the bill put together, staring into the camera and talking grimly about how necessary it was to amend Section 230 to save women. It starred a bunch of famous actors, including Amy Schumer, Tony Shalhoub, Josh Charles, Seth Meyers, and others.

Of course, since FOSTA passed, it has yet to be used against any website. Indeed, the website that everyone kept holding up as proof for why FOSTA was needed, Backpage, was actually shut down a week before FOSTA became law under existing laws.

And yet, FOSTA has created tremendous real world damage. A bunch of sites and individuals have been silenced out of fear that it might be used against them, creating massive chilling effects — including chilling effects on advocacy and information providing groups who try to help sex trafficking victims, but who now may violate FOSTA in continuing to do that work.

Lura Chaberlian has now published a deep dive into how FOSTA is a “hostile law” with “a human cost” for Fordham Law School. The quick summary of the paper is that FOSTA hasn’t done anything to help sex trafficking victims, but has created real harms for many women, especially those engaged in consensual sex work.

According to the 485 members of Congress who supported the law and the numerous celebrities who appeared in public service announcements evangelizing it, the Allow States and Victims to Fight Online Sex Trafficking Act of 20176 (?FOSTA?) was going to save people. FOSTA enjoyed a glowing narrative as a panacea for sexual corruption in the United States: it would reduce deaths, prevent rapes, and gut the marketplace for abusive sexual activity. Pimps would no longer be able to so readily sell a woman?s body, and children would be safe from predation. These results were as good as guaranteed because a significant amount of sex trafficking occurs online. FOSTA would make it a crime for websites to continue allowing malefactors to advertise for this abhorrent behavior on their platforms. With trafficking off the internet, the sex industry would shrivel. The right parties would be held responsible. No one would get hurt.

Within one month of FOSTA?s enactment, thirteen sex workers were reported missing, and two were dead from suicide. Sex workers operating independently faced a tremendous and immediate uptick in unwanted solicitation from individuals offering or demanding to traffic them. Numerous others were raped, assaulted, and rendered homeless or unable to feed their children. These egregious acts of violence and economic devastation are directly attributable to FOSTA?s enactment. Meanwhile, law enforcement professionals have complained that their investigations into sex-trafficking cases have been ?blinded??they no longer have advertisements to subpoena, digital records to produce for prosecutors, and leads that can bring them to live crime scenes full of evidence, like hotel rooms. This blindness is not for lack of anything to see: one report suggests that online sex trafficking is as prevalent as ever.

Just to be clear, in the actual report, in just those two paragraphs, there are 17 footnotes to articles detailing every statement made (the full paper has 330 such footnoted citations). This is a huge collection of evidence around the very real harms of FOSTA. As the paper notes, rather than saving lies FOSTA is “a law with a body count” attached to it:

FOSTA directly endangers individuals who perform commercial sexual services by driving these transactions away from the relative protection of the internet and back onto the street. Traditionally, solicitation of a sex worker?s services took place during an in-person encounter that also functioned as an advertisement for business: a brothel or, more recently, the street. Street work is more dangerous than indoor work and can even be lethal. Rape and assault are prevalent and seen as inevitable, and workers are at risk of violence from clients and law enforcement alike. As the internet became a ubiquitous utility, sex workers were able to move the negotiation and solicitation stages of their business to online forums that did not demand physical presence. Sex workers gained the means to create an electronic record of client communications, screen potential clients, and communicate with one another about dangerous clients, safe spaces, and other industry-specific health and safety tips. The shift online revolutionized the industry, imbuing sex work with a previously nonexistent level of safety and decreasing the need for third parties as security or advertisement intermediaries. The effect was striking: a 2017 study found that ?from 2002 to 2010, when Craigslist?s erotic-services site was active and solicitation moved indoors, the female homicide rate fell by seventeen percent.?

Incredibly, the paper highlights how FOSTA is likely to create more sex trafficking since sex workers may feel pressured to have pimps for protection, which they didn’t need previously.

FOSTA confines commercial sex to its most dangerous model. Since FOSTA?s enactment, sex workers have reported an increase in communication from ?pimps? claiming that their services are necessary. Although some sex workers work with third parties voluntarily, others may feel pressured into a situation that could easily become sex trafficking, meaning that FOSTA could actually facilitate sex trafficking by forcing consensual sex workers into coercive situations. Further, the workers most endangered by street-based sex work tend to be from marginalized communities. Women of color are disproportionately arrested and prosecuted for prostitution-related offenses, and forcing sex work into the street will only increase these arrests. In addition to scrubbing advertisements for consensual sex from online forums, FOSTA threatens access to secondary online resources used for protection and verification.284 None of these consequences has a valid relationship to FOSTA?s purported aim.

So, despite that dramatic PSA above, so far FOSTA has:

• Not helped take down Backpage (existing laws did that)
• Led to widespread internet censorship, including information designed to help sex trafficking victims
• Put sex workers in much greater risk, leading to multiple deaths and disappearances
• Facilitated more sex trafficking by pushing sex workers into the waiting arms of traffickers for “protection”
• Not shown any actual decrease is sex trafficking or sex trafficking advertisements.

Oh, and no officials have actually used the law yet.

So, maybe, someone should be asking Amy Schumer, Tony Shalhoub, Josh Charles, Seth Meyers, and those others how they feel about this law that they were instrumental in getting passed. Or, better yet, someone should be asking whoever it was who put them up to be spokespersons for this terrible and unconstitutional law.

Filed Under: cda 230, fosta, safety, sex trafficking