FOSTA: A Comprehensive Analysis

By Tommy Sodeman

On April 11th, 2018, Donald Trump signed the Allow States and Victims to Fight Online Sex Trafficking Act, FOSTA for short[1].  To most, this is seen as a fine moment in Washington’s currently gridlocked system, where Democrats and Republicans came together to solve a problem that has been plaguing victims of child sex trafficking for years.  To others, FOSTA proposes a problem.  While the bill goes into effect immediately, the Internet has already begun to react.  Some sites have shut down sex related areas and stopped sex-related advertising while Craigslist has shut down their personals section in response to FOSTA passing Congress[2].  What is in FOSTA?  Why is there disagreement about this law designed to support victims of sex trafficking?  What nuances are being ignored in the larger discussion regarding human trafficking?  How did FOSTA come to exist?  These are the questions that everyone needs to ask, and what follows is an attempt to answer them.

To begin, it is crucial to examine what is in FOSTA.  What does this legislation try to accomplish?  FOSTA amends the Communications Act of 1934, specifically section 230, commonly referred to as the Communications Decency Act of 1996 (CDA)[3], which provided protection to websites for third party postings, allowing posting sites to deflect fault for content posted by that third party (essentially, a site like Facebook cannot get sued for racially charged comments on a story, or for someone posting something transphobic on their site).  FOSTA clarifies that the law was never intended to give legal protections to sites that facilitate and promote prostitution and traffickers that advertise the sale of sex acts with sex trafficking victims.  House Bill 1865 (2018) states that

Whoever…owns, manages, or operates an interactive computer service…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.

It also allows individuals who were injured by a violation of the newly implemented sections to recover damages and attorney fees in an action before a United States district court and prevents the Communications Act from blocking any action, from civil suits to federal prosecution, relevant to sex trafficking.  Lastly, it requires the GAO (Government Accountability Office) to conduct a study focused on civil actions taken against traffickers and the amount that these victims were rewarded[4].

There are numerous issues with this legislation.  To begin, there is a focus on prostitution.  The language of House Bill 1865 (2018) consistently states, ‘promotion of prostitution and disregard of sex trafficking’.  What this translates to is a conflation of sex work and sex trafficking.  It assumes that people who post on sites regarding sex for money, are unwilling participants and they qualify as a victim.  What may happen is someone who posts an ad regarding sex for money, if they are a sex worker, could be charged with prostitution.  While they will not be charged for trafficking, as they are not facilitating prostitution of someone else, they will still be charged for a crime because websites are more incentivized to report on advertisements regarding sex because they do not want to be fined and charged for willingly ignoring a potential trafficking victim.  While the CDA would normally shield sites like Craigslist and Reddit from being held accountable for a sex related post from a sex worker, they are now more inclined to either delete the post, or cooperate in a sting operation with police, as to avoid the penalties the law establishes.

Another issue is the focus of litigation as a measurement of success.  Congress wants a report from the GAO regarding the effectiveness of the legislation three years after it is implemented.  Yet they want the measurement of success to focus on civil litigation.  They specifically want the amounts of money rewarded to victims, the reasoning behind the amount the victims requested, case dismissal (if applicable) and for what reasons the case was dismissed.  What is unique about this is that they are not focusing on numbers related to criminal cases.  In a global and national context, it would be expected for them to request statistics and numbers regarding the number of traffickers arrested and convicted (and how many individuals were arrested on prostitution and drug charges and funneled into recovery programs).  However, the focus on money awarded to victims is even more insidious.  While restitution is a common practice to reward damages to a victim, utilizing it as the sole method to measure success completely ignores the more human aspects regarding trafficking.  It even ignores the people and entities that commit trafficking.  It places a monetary value on being a victim of trafficking, and can victimize trafficking victims again, as they will have to relive their experiences for cash gain rather than peace of mind.

A final issue that is being ignored is that there is a lack of protections for victims of labor trafficking.  The Internet is used across the globe to hire workers, who may become victims of fraudulent posts and offers.  Yet this law only specifies sex trafficking victims.  This has now created a two-tiered system between victims, or has, at least, created a larger gap between victims of sex and labor trafficking.  Sex trafficking has become a more visible crime, with more individuals looking out for more victims (albeit still lacking in many law enforcement offices across the country and globe).  But no one is actively searching for labor trafficking victims.  And many individuals do not know what to be aware of when it comes to labor victims.  Yet labor trafficking is much more prevalent, with 64% exploited for labor (16 million globally) compared to 19% who were sexually exploited (4.8 million globally).  Both Americas account for 5% of those exploited for labor, around 1.2 million people[5].  Accounting for other factors like race, sexuality, and immigration the gap between sex and labor trafficking victims increases and these factors, relative to victims of human trafficking, deserve further study.

Some may think that a law designed to protect sex trafficking victims would be something uncontroversial.  That is not the case, as there are many groups who do not agree with FOSTA.  One group, namely sex workers, have argued that FOSTA makes them more unsafe, as it threatens websites that allow workers to do their work safely and independently[6].  And they are not wrong.  Websites that openly and actively allowed sex related posts on their forums will either delete them or move further into the dark web, causing sex workers to either return to the streets for work, which is highly unsafe, or rely on the new dark web websites, which can be dangerous, as they will be less regulated and more open to dangerous clients.  And these websites may end up shutting down unexpectedly if investigators get too close to the administrator of the site.  That could result in sex workers going to the streets, making them vulnerable.  Another aspect is the sharing of information between sex workers.  According to an adult performer named Lorelei Lee, she states in an Instagram post from the Arnold article (2018):

This bill claims to target human trafficking, but does so by creating new penalties for online platforms…used by consensual, adult sex workers to screen clients, to share “bad date lists,” to work indoors, and to otherwise communicate with each other about ways to stay alive.  Data shows that access to these online platforms decrease violence against sex workers…

If websites are found to disregard and facilitate prostitution, they face severe penalties, and the information she describes can be construed as ways to avoid detection by law enforcement.  If someone posts a list of angry or violent customers, lawyers could argue that by avoiding these customers, they are actively choosing clients less likely to get law enforcement called on them.  If this list is used by multiple sex workers, under FOSTA, the website can be held accountable for facilitating prostitution, as they are avoiding customers who might draw law enforcement to them.  While that may be a far-fetched situation, websites that allow information to be shared amongst sex workers could be construed by prosecutors as facilitating prostitution, thus incentivizing them to delete those posts and threads.

One has to wonder how FOSTA, and its sister bill SESTA (Stop Enabling Sex Traffickers Act) in the Senate, became a controversial point in the discussions regarding human trafficking.  And the answer, I believe, is the documentary I am Jane Doe.  This is a film about Backpage.com, and how it facilitated child sex trafficking.  It revolved around the legal battles and CDA regarding Backpage.com and how the system essentially failed these victims.  But there are some glaring issues with this documentary.  While initially framed around three of the victims and their families, it quickly shifted focus to Backpage.com as an entity hiding behind an outdated rule meant to grow the Internet.  From there, the focus then seems to shift to the lawyers representing these victims in numerous court cases, with more focus around the lawyers themselves, portraying them as honorable men who fight for what is right and never gives up.  There were even interviews with the families of the lawyers to emphasize this.  This helped to reinforce a classic stereotype of men as the saviors of these women, dependent on him for bringing the perpetrators to justice.  This is not helpful when trying to construct a film for advocacy.  The film should be focused around the victims and their families to showcase what is happening, not focusing on a legal meeting determining strategy on how they will argue this case before the court, nor were the candid photographs necessary.

Another issue was that as the film progressed, it moved further away from the victims, and instead constructed a paralyzed system around which Backpage.com survived.  Anytime the victims would speak, it would not be them, but a voiceover, with candid photos of them and their families/mothers, expressing their emotional state.  This is not really victim advocacy but utilizing their emotional baggage to emotionally influence the audience to a particular way of thinking.  The documentary did not focus on the victims, their experiences, or their recovery.  Instead, it created an image of brokenness combined with pleas to others to change something, added in with a sense of hopelessness, as at the point when the movie was filmed, nothing had been done at the Congressional level.

FOSTA, while a step in some direction, is not the step needed to better tackle the issue of sex trafficking in the United States.  It conflates sex work with sex trafficking, unfairly punishing sex workers and endangering their lives, creates a tiered system between victims of sex trafficking and labor trafficking, and uses an insidious method of measurement to measure success.  FOSTA could have been an amazing opportunity to fix a glaring issue in US law regarding online sex trafficking, but instead, with its long and broad strokes, has more than likely created more issues than it solves, and will require an even harder effort to fix the underlying causes of online sex trafficking.

 

 

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[1] Jackman, T. (11 April 2018).  Trump signs ‘FOSTA’ bill targeting online sex trafficking, enables states and victims to pursue websites.  The Washington Post. Found at https://www.washingtonpost.com/news/true-crime/wp/2018/04/11/trump-signs-fosta-bill-targeting-online-sex-trafficking-enables-states-and-victims-to-pursue-websites/?noredirect=on&utm_term=.270b148a8910

[2] Jackman, T. (11 April 2018).  Trump signs ‘FOSTA’ bill targeting online sex trafficking, enables states and victims to pursue websites.  The Washington Post. Found at https://www.washingtonpost.com/news/true-crime/wp/2018/04/11/trump-signs-fosta-bill-targeting-online-sex-trafficking-enables-states-and-victims-to-pursue-websites/?noredirect=on&utm_term=.270b148a8910

[3] Allow States and Victims to Fight Online Sex Trafficking Act of 2017, H.R. 1865, 115th Cong., 2nd Sess. (2018).

[4] Allow States and Victims to Fight Online Sex Trafficking Act of 2017, H.R. 1865, 115th Cong., 2nd Sess. (2018).

[5] Human Rights First. (7 January 2017).  Human Trafficking by the Numbers.  Found at https://www.humanrightsfirst.org/resource/human-trafficking-numbers

[6] Arnold, A.  (20 March 2018).  Here’s What’s Wrong With the So-Called Anti-Sex Trafficking Bill.  The Cut.  Found at https://www.thecut.com/2018/03/sesta-anti-sex-trafficking-bill-fosta.html

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