By Tommy Sodeman

On April 11^th, 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.

Word Count-1940

[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, 115^th Cong., 2^nd Sess. (2018).

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

Human trafficking is a global problem that has its roots in large structures that can be complex and intricate.  With these large and complex issues at the center of discussion, smaller components and specific industries get lost in the discussion.  And one of these industries is the construction industry.  However, it is important to analyze how interrelated labor trafficking and the Internet are and how it works in relation to the construction industry.   How does the Internet lead to trafficking in this industry?  Are there ways to prevent this?  What do current and future trends in the construction industry imply regarding labor trafficking?  How interconnected is the Internet and the construction industry?  It is important to ask these questions because the Internet plays a key role in recruiting and deceiving individuals.

To discuss the Internet’s role in trafficking for labor, first, it is important to note what the construction industry looks like currently.  In a 2015 report, it was stated that the construction industries in the Middle East and Africa are expected to be the fastest growing from 2016 to 2020 and that it would overtake the Asia-Pacific region.  The report also stated that investor confidence in the Eurozone will continue to decline due to its precarious state, which implies that investment in construction projects will decrease, and that the number of jobs in the industry will decline[1].  According to a 2017 survey on the global construction industry, cost inflation in 2016 was at 3.7% while it was forecasted to be 3.5% in 2017.  This implies raising production costs, on average, across the industry and twenty-four out of forty-three markets were suffering a skills shortage in 2016.  The survey also stated that South America, the Middle East, and Africa had the lowest average hourly wage in USD: 8.1, 7.9, and 4.0 respectively.  Meanwhile, North America, Australia, and Europe had the highest average hourly wage in USD: 72.5, 56.2, and 35.4 respectively[2].  The picture that is currently forming is that the global construction industry is growing, requiring more labor, yet wages in some of the markets that will have the greatest growth are much lower than the markets that are established in the West.  It also implies that construction industries in Europe may be weaker than others and that all markets will need to compensate for increases in cost.

With a current framework for construction in place, it is important to discuss the role of the Internet and its ability to recruit workers.  According to a literature review for a report focused on recruitment and the internet, 79% of Global 500 companies recruit on the Internet and that by 2000, all Global 500 companies had, at least an internet presence through a corporate website.  The report found that two organizations that were general contractors, hired one to ten skilled labor staff using the Internet and that fifteen organizations had planned to utilize the Internet more and that four other organizations said that they would develop a budget for Internet recruiting, spending between one thousand and one hundred thousand dollars.  They also found that fifteen of the responding organizations had indicated that the Internet is a valuable recruitment tool for technical, administrative, and professional staff and eight suggested that it is a valuable tool for skilled labor[3].  This implies that the Internet is a crucial tool meant to recruit workers into the construction industry.  Since Internet recruitment was more utilized than word of mouth when it came to recruitment for technical, administrative, and professional staff, and organizations are going to invest more in recruitment, a shift toward digital recruitment is happening or has already happened.

Now that a framework regarding recruitment over the Internet and the global construction industry has been discussed, the interrelation between the two regarding human trafficking needs to be discussed.  An article discusses the numerous ways traffickers utilize the internet for various forms of trafficking.  For instance, a 19-year-old girl had responded to a modeling ad on the Internet and ended up being expected to have sex with unknown persons (her first client was an undercover officer who ended up saving her).  Another example more closely related to labor exploitation is when Italian and Polish police broke up a network that used an employment agency website as the primary recruitment tool.  There have been efforts to disrupt online trafficking, but their focus has been on sex trafficking, seemingly ignoring individuals trafficked in for labor[4].

In a report detailing the link between the internet and labor trafficking, it stated that it is easy and cheap to use the internet to create fraudulent offers and websites to deceive those who are looking for work into believing that they are replying to a genuine job.  The anonymity of the internet makes it difficult to identify who posted a fraudulent offer, especially in public areas like internet cafes and libraries.   The report also detailed that victim recruitment is increasingly taking place online and that traffickers lure jobseekers with promising advertisements for jobs placed on general advertisement sites and that they approach victims in chat rooms or through social media.  It also details several cases where the Internet lead to labor trafficking.  One case was on construction in the UAE, where workers from Romania were recruited through ads posted on the Internet by a recruitment company in Romania.  These workers had their documents confiscated and were housed in unsanitary conditions and were forced to work without pay.  Another case was regarding Romanian workers in Cyprus, where candidates were required to sign contracts in Romania with two companies in Cyprus and that upon arrival, workers had their identity documents confiscated, along with their contracts.  They were sent to work for different employers where their salaries were sent to the company owned by the recruiter from Cyprus.  They were also forced to live in unsanitary housing and worked sixteen hours a day.  There are other examples, but one last bit the report offers is what to watch out for in ads.  They suggested taking extra care when searching for jobs in areas like catering, agriculture, and construction[5].

What I am trying to showcase here is that the Internet is crucial when it comes to labor trafficking in the construction industry.  Because the Internet is a media that reaches many individuals and is being used as a tool for recruitment in construction, researchers should be looking at the connection between labor trafficking in construction and the Internet.  While many jobs like construction still rely on word of mouth, this technique can refer individuals to websites, where they can find jobs, which may lead them to being exploited.  Because the Internet offers anonymity, it is much easier for traffickers to remain hidden from investigators and they can reach several different audiences rather than being restricted to one country, or nearby countries.  A labor trafficker can reach workers in Romania or Bolivia for jobs in the UAE or China.  Their markets are no longer restricted by geography and their risk for being involved in such markets (trafficking in labor from Eastern Europe to the Middle East or Asia-Pacific region) is greatly reduced because of the Internet’s reach.  They can remain safe in their countries (maybe Romania) while setting up consumer supply chains for labor in the Middle East or Asia.

What I am further suggesting is that there will be an increase in labor trafficking due to the growth of the global construction industry.  A recent report states that the global construction market will grow by eight trillion dollars by 2030.  It also states that Europe will not recoup its lost decade and that the growth will be fueled by markets in China, US, and India[6].  As previously noted, Europe is facing a situation where they will not be able to recoup their losses following the global financial crisis and that other areas like the Middle East and China are going to grow and drive the construction market.  This kind of environment is ripe for traffickers.  With worker shortages, construction companies will look to other sources for labor, usually looking for cheap labor.  Traffickers, using the Internet, will be able to advertise good jobs in these high growth areas and could trick workers in the Eurozone into jobs where they end up exploited.  Some construction companies might engage in trafficking themselves, rather than looking to others to find them labor.  And this exploitation will be fueled by the Internet, as a means of connecting workers to traffickers, construction companies looking for cheap labor, or both, where the company works together with traffickers.  The situation might even be ripe enough for a new wave of trafficking victims, but instead of waves of sex trafficking victims, these will be victims of labor trafficking, travelling and being sent to the Middle East, India, China, and even the US, as these markets are expected to grow.  These victims will come from Europe, expecting good pay and decent accommodations, but may end up trafficked and exploited by traffickers and construction companies, who are looking to keep costs low.

The Internet is a crucial tool for both construction and labor trafficking.  It connects employers with workers who want a job, and it also can con workers into becoming trafficked.  The construction industry is expected to grow and with it, so to will labor trafficking.  While labor trafficking includes other industries like agriculture and home care, Europe may see a new wave of trafficking victims, namely, Europeans being trafficked to the Middle East, India, China, and the US for the sole purpose of construction.  Researchers must devote energy and resources to studying this connection between the Internet, labor trafficking, and construction in order to come up with good strategies that will prevent this from occurring.

Word Count- 1627

[1] PRNewswire.  (2015 Feb. 17).  Global Construction Market Worth $10.3 Trillion in 2020 (50 Largest, Most Influential Markets).  PRNewswire.  Found at https://www.prnewswire.com/news-releases/global-construction-market-worth-103-trillion-in-2020-50-largest-most-influential-markets-292235961.html

[2] (2017).  International Construction Market Survey 2017.  Turner and Townsend.  Found at http://www.turnerandtownsend.com/media/2389/icms-survey-2017.pdf

[3] Haas, C.T., Glover, R.W., Tucker, R.L., and Terrien, R.K. (Feb. 2001).  Impact of the Internet on the Recruitment of Skilled Labor.  The University of Texas at Austin; Austin, Texas.  Found at http://sites.utexas.edu/raymarshallcenter/files/2001/02/a_ccis_report_17.pdf

[4] Dixon, H.B. Jr. (2013).  Human Trafficking and the Internet* (*and Other Technologies, too).  The Judges’ Journal, 52(1). Found at https://www.americanbar.org/publications/judges_journal/2013/winter/human_trafficking_and_internet_and_other_technologies_too.html

[5] FINE TUNE. (N.G).  The Role of the Internet in Trafficking for Labor and Exploitation.  Found at https://www.ituc-csi.org/IMG/pdf/internet_and_labour_trafficking.pdf

[6] Robinson, G.  (N.G.).  Global Construction Market to Grow $8 trillion by 2030: driven by China, US, and India.  Global Construction Perspectives and Oxford Economics, London, United Kingdom.  Found at https://www.ice.org.uk/ICEDevelopmentWebPortal/media/Documents/News/ICE%20News/Global-Construction-press-release.pdf

Link to my blog-http://u.osu.edu/sodeman.2/2018/03/06/how-a-growing-construction-industry-will-increase-labor-trafficking-via-the-internet/