Taking a Closer Look at FOSTA

Introduction

If you read the news or follow any anti-trafficking campaigns, then you have likely seen the latest development in anti-trafficking legislation passed by Trump: FOSTA. A great deal of articles are praising this development, hailing it as a much needed step to further fight trafficking and protect victims. On the other hand, many are responding quite negatively, claiming that this legislation will bring harm to internet rights, sex workers and make it harder to track and fight trafficking. So, is it good or bad legislation for trafficking? This debate brings the larger question of personal ad sites into focus- do these websites fuel trafficking, or are they a good source for tracking down and fighting trafficking? This post will take a closer look at the recent legislation and its potential effects.

What is FOSTA?

Just recently the president signed new legislation, “Allow States and Victims to Fight Online Sex Trafficking Act” or FOSTA. To clear up any confusion, a version of the bill was previously referred to as SESTA in the Senate. FOSTA aims at enabling victims of sex trafficking to “hold websites accountable for knowingly facilitating sex trafficking”¹. In a nutshell, under such an act, sites like Backpage could be liable for facilitating trafficking, and FOSTA then makes it easier for trafficking victims to sue internet companies that ‘knowingly’ promoted or facilitated their trafficking².

• FOSTA amends the law on sex trafficking of children, clarifying “participating in a venture” to also mean that those “knowingly assisting, supporting or facilitating” an act of sex trafficking will be in violation of the Federal criminal code³.
• FOSTA also clarifies that the Communications Decency Act was “was never intended to provide legal protection to websites that unlawfully promote and facilitate prostitution” and adds a clause which prevents the decency provisions from impairing or limiting civil suits or criminal cases relating to federal sex-trafficking crimes³.
• This legislation gives power to federal and state prosecutors to go after websites that facilitate trafficking through hosting ads. It also allows victims to file lawsuits against such sites³.

This legislation is regarded as vital for many reasons, but it seems the amendments are especially important because the Communications Decency act was previously used by Backpage to protect it from liability in cases brought against it by victims and their families.

 

 

The Push for FOSTA and the Potential Benefits

Part of the massive push for FOSTA is due to the media attention to the build-up of cases brought by survivors and parents of trafficking victims who were sold through websites, particularly Backpage.

Prior to the passage of this legislation, Backpage was investigated, and ultimately several executives of Backpage were arrested for facilitating prostitution and trafficking- resulting in a shut down of Backpage’s classified ads³. In this major investigation, documents proved that Backpage officials were involved in advertised content, such as by editing ads or advising customers how to edit their ads, so “terms indicating that a person was a “teen” or “young” or “fresh” would be removed, yet the ad itself would remain online and the victim still prostituted”³. It is clear based on the investigation’s findings that Backpage workers need to be held responsible for their involvement in allowing and profiting from trafficking of underage victims on their site. With this particular goal in mind, the FOSTA law seems to bring relief and hope to survivors and their families that Backpage and sites like it could finally be held accountable and that cases brought against them in court could now actually have a chance for success.

Yvonne Ambrose was present for Trump’s signing of the legislation; her 16-year-old daughter was killed after being trafficked through Backpage. She stated that the legislation means a great deal to her family, going further to say “Hopefully, there won’t be many more people who have to endure that pain”³. Ambrose is not alone- leading up to the signing there have been a plethora of horrifying accounts emerging of trafficking of young girls, sold on websites like Backpage. Many people expressed frustrations that nothing could be done to force the sites to stop hosting such ads and that victims weren’t able to sue for damages³. Previously, the Communications Decency Act was invoked by Backpage and other sites to avoid prosecution, because they were only hosting the content, not creating it³. Cases were dismissed by judges, prompting Congress to step in and try to change the law. This law received support from large advocacy organizations, such as Polaris and the National Center on Missing & Exploited Children⁴. Celebrities have also publicly supported the law².

After reading the stories and seeing the numerous articles of young girls who had been victims of trafficking and sold through Backpage, I too was outraged at the lack of accountability for such sites. That’s why when first hearing about the FOSTA bill, it felt encouraging. However, as with any law, it is not perfect. There are several problematic aspects of FOSTA.

Initial Effects of the Push for this Legislation

Senate Representative Ann Wagner explained that these crackdown efforts have already affected online activities even before the bill got passed, stating in a CNN interview: “We’ve already interrupted 87% of the global ad volume. Thirty-plus websites and online platforms have either shut down or had major policy changes”⁴. Websites like Craigslist have begun shutting down portions of their sites that could be considered ‘sex-related’ like their “personals” section, stating that: “Any tool or service can be misused. We can’t take such risk without jeopardizing all our other services, so we are regretfully taking craigslist personals offline.”⁵. Many believe this is a good sign, but such a large effect on websites like Backpage and Craigslist may have other unintended consequences.

Potential Problems for Sex Workers:

Others claim that it would be ineffective in actually stopping trafficking, while further making marginalized communities, like sex workers, and even trafficking victims vulnerable². The new legislation is supposed to focus on cracking down on sites that promote ‘sex trafficking’, but many worry that because of the history of conflating sex work with trafficking in the US, sex workers will be the most affected by this law². Because companies would now be harshly punished for promoting or facilitating prostitution, combined with what some argue is dangerously broad legislation, it is likely companies will be compelled to stringently monitor and remove content of users relating to sex². This would create a plethora of problems for sex workers.

First, this legislation combined with the recent major shut downs of ad services by both Backpage and Craigslist, means sex workers who use these sites will have to look elsewhere to continue their work. This removes many sex workers’ access to an income and access to clients in a public online setting. Not only will workers who rely on the cheap ads and gaining clients through sites like Backpage be out of money and need to look elsewhere, they will have less safe and reliable avenues to turn to. With more websites being cracked down on or shutting down in fear, instead of setting up relatively safe sex work online, workers in need of income will have to move to the streets- where they are expected to face more violence than if they would have found and screened clients online². This in effect may drive vulnerable workers further underground.

One quote from a sex-trafficking survivor and now sex worker explains the vulnerability that stems from this law: “Making people desperate facilitates trafficking. When you are desperate, you don’t have the luxury of screening a client. You need to take whatever comes your way…  Desperation equals a lack of choice and agency.” (Laura LeMoon).⁶

Aside from options for finding work online disappearing, some fear the law will have larger effects on online discussions and posts. It is speculated that user activity relating to sex work will likely cracked down on, because site operators will be wary of anything potentially being construed as relating to sex-trafficking. Some fear that online discussion in the realm of sex work and useful resources like safety tips and “bad date” lists that are often shared via online platforms may also be removed². To many, these resources are vital to maintaining and gaining safe clients². Overall, the FOSTA law may create major problems of access to income and safety for sex workers.

 

The Big Question: Will it Harm or Help Victims of Trafficking?

Trafficking survivor responses to this legislation have been mixed. As previously mentioned, major advocacy organizations like Polaris and the National Center on Missing & Exploited Children have strongly supported the passage of this legislation. One of the major points organizations were furious at was just how much Backpage, and likely other companies, have profited off their ad sections which have sold trafficking victims- essentially, many have rallied against Backpage’s profit from exploitation. Aside from hoping FOSTA will get at the companies who profit from the trafficking industy, others hope it will also affect the availability and numbers of trafficking. Polaris issued a formal statement on the Backpage case in which Bradley Myles, chief executive of Polaris explained, “Shutting down the largest online U.S. marketplace for sex trafficking will dramatically reduce the profitability of forcing people into the commercial sex trade, at least in the short term.”⁷ He went on to explain, “Traffickers will have to rethink their business models and sex buyers will face greater risk. The flow of easy money will slow and, as a result, fewer vulnerable people will be bought and sold against their will.”⁷ Although this line of thinking may have merit, even Polaris admitted that “such a dramatic shift in the marketplace… will bring with it a cascade of unintended consequences, especially for sex trafficking victims”⁷. Many others feel that these unintended consequences far outweigh any potential benefit.

FOSTA is viewed as a step backwards by others, as removing these ad sites ends up actually removing a tool for law enforcement³. Some have criticized FOSTA for making it harder for law enforcement to track traffickers and pimps, build criminal cases, and find missing children³.  Jean Bruggeman, executive director of Freedom Network USA, doesn’t believe that shutting down websites and ad platforms will end sex trafficking, instead she believes it will just “push traffickers to overseas websites that are beyond the reach of law enforcement”³. In the end, she believes it will just make it even harder to prosecute traffickers or find them via victims³. Furthermore, Kimberly Mehlman-Orozco, an expert witness on human trafficking, along with some law enforcement officials, explained that Backpage had actually often been cooperative with investigations³. Aside from this, Backpage was beneficial for law enforcement because it ultimately offered a place to “track the traffickers”³. Overall, it seems that utilizing websites may actually aid in the fight against trafficking, and removing such sites may actually reduce the visibility of victims and traffickers instead of deterring trafficking. But we must consider, how do these claims stand up against the accounts of victims who were sold through Backpage time and time again and were not saved? It’s hard to tell.

Reflection

This major push to shine the spotlight on online modes of trafficking, both among the public and state representatives, is encouraging, however the number of potential issues with this FOSTA calls into question its long-term effects. One wonders what might have been created had this push for legislation taken into account the potential downfalls and offshoot effects, or the benefits from the visibility of online trafficking. It seems obvious that victims should be able to get justice from the sites which knowingly allowed their trafficking to take place, but perhaps this could’ve been done in a different manner.

At the end of the day, maybe some victims will be spared from being trafficked online and won’t be profited off of by major companies. Maybe online ad sites will be more careful and institute more screening (although as we can see with the current Backpage indictment, screening by these companies isn’t always done how it should be). Or, maybe as major sites stop offering ad sections or get shut down, traffickers may just find other sites to use, or worse- they’ll operate without the use of online platforms, on the streets or in the shadows, away from the visibility and grasp of anti-trafficking efforts. Time will tell what kind of impact FOSTA will have, but in the meantime we should remain aware of the situations and people that may potentially be affected by this legislation.