Summary

This article provides a brief introduction to the passage of the federal SESTA/FOSTA law in 2018 and its impact on sex workers.

What is SESTA/FOSTA?

Gosh, that’s a weird and ugly acronym. What does it stand for?

It’s a colloquial name for Public Law 115-164, enacted on April 11, 2018. It is also variously known as HR 1865 (115 Session of Congress), SESTA, FOSTA, and that “damn internet law.” The formal title of the law is the “Allow States and Victims to Fight Online Sex Trafficking Act of 2017.”

The acronyms themselves mean:

  • SESTA=Stop Enabling Sex Traffickers Act
  • FOSTA=Fight Online Sex Trafficking Act

A related bill which eventually morphed into Public Law 115-164 was Senate Bill 1693 (115 Session of Congress). But the proper designation of the law is P.L. 115-164.

What is this law intended to do ?

  • Ostensibly to make it more difficult for sex traffickers to use the Internet;

  • Increases liability of internet content providers/website hosts/etc for prosecution if prostitution related material is on their platforms;

  • Makes it illegal to “own, manage, or operate an interactive computer service with the intent to promote or facilitate the prostitution of another person (lightly paraphrased from the law’s text).”

  • The law states: “Whoever, using a facility or means of interstate or foreign commerce or in or affecting interstate or foreign commerce, owns, manages, or operates an interactive computer service (as such term is defined in defined in section 230(f) the Communications Act of 1934 (47 U.S.C. 230(f))), or conspires or attempts to do so, with the intent to promote or facilitate the prostitution of another person shall be fined under this title, imprisoned for not more than 10 years, or both.”

How does it do that?

It amends two sections of federal law:

  • 18 U.S. Code Chapter 117 (Transportation for Illegal Sexual Activity and Related Crimes)

  • 47 U.S. Code Section 230 (Protection for private blocking and screening of offensive material)

What are the other (perhaps unintended) consequences of the law?

Negative impacts on sex workers

  • Makes it more difficult for consensual sex work to use the Internet;

  • Makes sex work more risky for the workers by removing relatively safer routes of finding and screening potential clients; instead making them more likely to use more risky means of finding clients (such as street-walking);

Internet freedom of speech impacts

  • Reduces freedom of speech by making Internet service providers potentially liable for content posted by others on their platforms;

  • Establishes a potentially dangerous precedent for free speech on the internet by modifying the Communications Act of 1934 (particularly the key 1996 amendments to this act that helped establish the underpinnings of the Internet);

Aren’t there constitutional concerns?

Yes; there are two main constitutional concerns with the law:

  • The Constitutional prohibition on the enactment of retroactive laws (ex post facto), as provided in Article 1, sections 9 and 10 of the US Constitution. SESTA has a provision that is retroactive, in violation of these key tenets of the Constitution.

  • This retroactive portion of SESTA reads as follows: “Effective Date. –The amendments made by this section shall take effect on the date of the enactment of this Act, and the amendment made by subsection (a) shall apply regardless of whether the conduct alleged occurred, or is alleged to have occurred, before, on, or after such date of enactment.”

  • The First Amendment right to free expression

What changes in the sex work environment have we seen as a result of the law?

A number of online platforms have either been shutdown, or have limited in some way the ability of users to be expressive in some sort of sexual way. These include:

  • Backpage (seized by the US Government; note that this occurred before the passage of SESTA, but the existence and operations of Backpage were key factors in the political motivation for enacting SESTA)
  • Patreon (has begun removing sex-related material from the platform);
  • Craigslist (removed all adult service advertisements);
  • Eros (has become increasingly restrictive about adverts and content they accept);
  • tumblr (has banned sexuality-related material from its system);
  • Instagram (has become more aggressive recently about banning users whose content is even slightly sexually related);
  • Twitter (exhibits more caution regarding sex-related issues);

What are some other flaws of the law?

  • Conflates consensual sex work with forced labor under sex trafficking;
  • Doesn’t address much larger issue of other kinds of human trafficking (labor);

It is bad public policy:

  • Wrong tool for the job; works like a trebuchet when a drill would be the more appropriate type of tool;
  • Endangers the people it ostensibly is intended to protect;
  • Sets potentially dangerous precedent in restricting internet freedom;
  • Chilling affect on speech (Craigslist for example);

Further reading