FOSTA-SESTA was supposed to thwart sex trafficking. Instead, it’s sparked a movement

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People chant as they march in support of sex workers, Sunday, June 2, 2019, in Las Vegas. People marched in support of decriminalizing sex work and against the Fight Online Sex Trafficking Act and the Stop Enabling Sex Traffickers Act, among other issues. (AP Photo/John Locher)

People chant as they march in support of sex workers, Sunday, June 2, 2019, in Las Vegas. People marched in support of decriminalizing sex work and against the Fight Online Sex Trafficking Act and the Stop Enabling Sex Traffickers Act, among other issues. (AP Photo/John Locher)

This story is from The Pulse, a weekly health and science podcast.

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Danielle Blunt and Ariel Wolf are giving a tour of the airy Brooklyn apartment that doubles as Blunt’s office.

“Combination of a traditional office and my kink play space,” Blunt said. “My dungeon, if you will.”

This is where Blunt earns her living. She’s a sex worker and professional dominatrix, as evidenced by a few conspicuous tools of the trade lying around: a leather whip, a metal flogger, and something called a hashira.

“It’s a Japanese bondage post, which I string people up to and implement delicious torture,” Blunt said with a coy smile.This also happens to be the place where Blunt and Wolf recently finished a study about sex workers — funded by themselves, along with a bit of help, monetary and moral, from their clients (including one whose kink was to serve as a human footstool as Blunt and Wolf conducted their research.)

Their study focused on a pair of laws known together as FOSTA-SESTA — the Allow States and Victims to Fight Online Sex Trafficking Act and Stop Enabling Sex Traffickers Act.

Passed in 2018, FOSTA-SESTA has transformed the lives of sex workers across the country, and intensified a long-running debate over how we deal with an underground economy that runs the gamut from voluntary sex work (aka prostitution) to involuntary sex trafficking.

Over the past 20 or so years, that economy has increasingly migrated online. FOSTA-SESTA was an attempt to shut down the websites that facilitate trafficking. But sex workers say it’s had the additional effect of putting their lives in danger by hobbling an online infrastructure they have come to depend on.

“Whenever we lose access to internet spaces, there has been a devastating effect on the community,” Blunt said. “And the community’s ability to support themselves, to take care of themselves, to make money, and to screen clients and stay safe.”

But the laws have also had another effect: the emergence of a grassroots movement that’s giving voice to sex workers’ concerns in an unprecedented way.

“One thing that FOSTA-SESTA did do was sort of mobilize very vocal online sex workers with large followings in a way that they maybe hadn’t been politicized before,” Blunt said. “And because it became so visible online, like — despite the ways that we’re being shadow-banned and the ways that we’re being policed, and the ways that we’re being surveilled — somehow this, like, very random set of bills that turned into a law became something where now presidential candidates are being asked about what their stance on sex work is. And I do not think that would have happened without the community organizing that happened around mobilizing against [FOSTA-SESTA.]”

The origins of FOSTA-SESTA

To understand the effects of the laws, you have to know something about their roots.

It all started in the late ’90s/early ’00s, with the launch of the free listings site Craigslist. Its personals section, and later its erotic services section, quickly became a kind of bulletin board where sex workers could connect with clients.

That was quickly followed by another online behemoth — Backpage.com — along with more specialized sites such as Eros, an escort-advertising site, and sex worker directories like CityVibe and NightShift.

For a number of sex workers, these websites were a chance to move negotiations that once happened on the street into the digital space.

“Being able to source clients from an online space gives sex workers more space to negotiate with a client while our work is still criminalized,” Blunt said. “When people are negotiating on the streets, you want to get your encounter with a client going as soon as possible, because you’re being heavily surveilled and policed on the streets. So by having the barrier of interacting with someone over email, I can sort of test how they’re interacting with me. It just gives you more space to make a decision before getting in a car.”

Some websites even offered tools to help sex workers vet potential clients — including shared blacklists for dangerous clients. Working online didn’t just feel safer — research shows it was safer. In a study last year, researchers from Baylor University found that in cities where Craigslist’s erotic services section was rolled out, the female homicide rate dropped by anywhere from 1% to 17.6% (not including crimes in which victims knew their killers.)

There were other perks, too: It allowed some sex workers to strike out on their own, instead of having to work with exploitative pimps or agencies; and sex workers could connect with one another, allowing them to build online communities and begin articulating some of their shared interests and problems.

But sex workers weren’t the only ones capitalizing on websites like Backpage. The classifieds sections were soon populated by sex traffickers, who for years openly posted ads for women and children being held against their will.

The damage done

Melanie Thompson, 24, was one of those children. She works now as the youth outreach coordinator at the Coalition Against Trafficking in Women, but before that she spent many years in the sex trade, after being kidnapped and exploited at the age of 12.
Thompson doesn’t like the term sex work. “I like to say that sex work is neither,” she said. “Sex is not work, and work is not sex. And although I recognize that there is a population of people who self-identify as sex workers, it’s really a term that’s used to mask the inherent harms that come with prostitution.”

Thompson has vivid memories of sitting next to her exploiter as he typed up ads about her to post on Backpage.

“The ads would start with whatever name I was given for the day,” Thompson said. “It would describe my measurements — so my bust size, my hip size, my pant size, and my bra size. It would describe my race, and sometimes we decided to either — because I’m mixed race, so we decided to either stick with one of my races or both of them, try to capitalize on that — and then it was some type of advertisement, something along the lines of, you know, ‘I’ll show you a good time,’ ‘I’m new in town,’ any of these things that we knew sex buyers would gravitate towards.”

The ads finished with a phone number, and, sometimes, prices.

Thompson, who says she’s been exploited in settings that range from street prostitution to underground strip clubs, rejects the argument that websites like Backpage make sex workers safer.

“When I was streetwalking, it was dangerous — don’t get it twisted,” she said. “But at least I could see the face of somebody from the car.”

With Backpage, she didn’t get a chance to scope out the sex buyer until she had already accepted the job.

“And what I found is that, because Backpage made it so easy for sex buyers to continue this behavior repeatedly, many of the sex buyers I’ve encountered on this website were repeat offenders,” she said — and that seemed to instill in them a sense of dangerous entitlement.

“They would choke me. They [would] put me up against the wall. Some of them would smack me with whatever weapon they had. Some of them would threaten me, or threaten to tell my family if they knew me that well, things of that nature,” Thompson said. “And it was always because of the fact that they felt that they can do this whenever they wanted, to whomever they want … because they do it all the time. They had a way of making you feel extremely disposable. Because they knew that with a click of a button, they could easily find another girl whose ad just went to the top of that list in less than five minutes.”

Passing FOSTA-SESTA

Over the years, Backpage became notorious for its role trafficking young women and children — a number of whom were later found to have been raped, abused, and even murdered.

As the horror stories grew, so did the public outrage. By 2012, Backpage had become the target of multiple investigations, publicity campaigns, and criminal probes — including a damning Senatorial report, and a letter signed by 45 attorneys general, both of which spotlighted Backpage’s failure to stop (and active complicity in) the trafficking of minors.

When nothing changed, Backpage was hit with dozens of lawsuits filed by victims of trafficking. But again and again, the lawsuits failed in the courts — thanks largely to a part of the 1996 Communications Decency Act called Section 230, a seminal piece of internet legislation that shields web publishers from being legally liable for what users post on their websites.

Kendra Albert, an instructor at Harvard Law School’s cyber law clinic who specializes in free speech issues, said court rulings in favor of Backpage sparked the creation of FOSTA-SESTA.

“This … prompted a huge backlash, including the congressional introduction of SESTA and FOSTA, in order to remedy what legislators saw as the problem — that the courts had interpreted Section 230 as to sort of prevent lawsuits under the Trafficking Victims Protection Act,” Albert said.

What FOSTA-SESTA did, Albert said, was create an exception that would make websites legally liable for any content that helped facilitate sex trafficking or prostitution — even if it was consensual.

“The laws are important because they very much changed the way that people think about online risk related to hosting sexual content,” Albert said, “and sort of led to significant crackdowns by corporations and online platforms more generally against all kinds of sexual speech online.”

The effects were immediate.

“Right in the aftermath of the passage of FOSTA-SESTA, a number of platforms shut down or greatly limited the kinds of sexual content that folks were allowed to post,” Albert said.

Backpage was the best-known website to fall. (Though it was actually shut down by federal authorities before FOSTA-SESTA passed, supporters of the legislation still have implied that it paved the way for the seizure.) A slew of other websites dedicated to adult services followed, but the laws also affected dating apps and sites (including Craigslist personals), along with discussion forums and social media sites.

“The difficult thing is because of the way this legislation is crafted, where it increases the likelihood that someone will be able to be sued,” Albert said. “It basically encouraged companies online to take pretty broad measures and also not to be entirely clear about exactly what was happening.”

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Studying the fallout

In the two years since, sex work advocacy groups have reported a spike in the number of missing and dead sex workers across the country.

“People have reported that more folks are engaging in street sex work after Backpage got shut down,” Albert said. “Generally speaking, street sex work is more dangerous than the sort of sex work that was engaged over the internet.”

FOSTA-SESTA stirred grassroots organizing — including by Ariel Wolf and Danielle Blunt, who together with a group of other sex workers, researchers and techies, launched a collective called Hacking//Hustling focused in part on studying the impact of FOSTA-SESTA.

“I think the main thing we really wanted to find out was just exactly how this was affecting people’s financial security, how it was affecting their mental health, and just what experiences individuals were having being de-platformed, having their financial processors taken away and just being censored through this law,” Blunt said.

The mission was pretty simple, but the methodology was anything but. Blunt — who has a master’s degree in Public Health — said they wanted their study to be different from the kind of academic research they’d seen on sex work.

“I think the biggest problem in past research about sex work is that they haven’t employed sex workers to actually do the research or to create their research instruments for them,” Blunt said. “And they’re coming at it from an academic standpoint with no actual experience. And a lot of what they’re asking about is based in stereotypes or information that has no relevancy to current sex workers.”

Case in point: Blunt said she’s read some studies that define all sex work as nonconsensual. When you elide differences like that, you miss out on a ton of data, she said.

So Blunt and Wolf knew that to find the answer to their question — How had FOSTA-SESTA affected sex workers? — they needed to first define their terms carefully, and second to figure out who the sex workers in their sample were, their circumstances, needs and motivations. They did that with a survey that contained 80 questions — some multiple choice, some open-ended — to give respondents a chance to explain their answers.

Among other things, they asked about people’s financial security, barriers to other forms of labor, and mental health diagnoses.

“We really wanted to create a portrait of exactly who was doing this work, and why it was so important that they have access to these spaces, and how it was affecting them,” Blunt said.

They distributed the surveys online, and got 110 back. After analyzing them, they concluded several impacts, mostly expected: Yes, FOSTA-SESTA was decreasing financial stability by limiting the ability to advertise. Yes, it was pushing sex workers from online into the streets — and sometimes into the arms of pimps. And yes, all of the above was increasing sex workers’ exposure to violence.

But Blunt said there were also some unexpected findings.

“We found that 50% of our sample group had barriers to other forms of labor,” she said, “and that the most common barriers were mental health diagnoses, chronic illness, and disability.”

For years, studies have connected sex work with poor health. But researchers have always assumed that the health problems — especially issues with mental health or trauma — stemmed from the sex work itself. What the Hacking//Hustling survey revealed was that maybe it was the other way around.

“What we found was that a lot of people were doing sex work because they had this diagnosis previously,” Blunt said. “And their mental health problems were making it difficult for them to hold a 9-to-5 job and that they needed flexibility to work around these issues.”

More than 70% say FOSTA-SESTA has affected their financial situation negatively.

Though some websites offering adult services still exist, many require fees in order to place ads.

“We found that 45% of our group could not afford to place an ad for their services,” Wolf said. “So they were really reliant on free sites like Backpage, and now that they don’t have access to that, they’re struggling to find other ways of advertising or working.”

As a result, a number of sex workers have been forced to return to street prostitution, work with agencies or pimps, or try and make up the difference with other jobs.

“So a lot of them have had to return to work that doesn’t cater to their disability or it doesn’t allow them to take time off, which just causes more flare-ups and more health issues for them,” Wolf said, adding that 26% of their respondents reported an increase in the exacerbation of their symptoms.

One group that didn’t seem to be heavily affected, the study found, was sex workers who work exclusively on the streets.

“They have a lot less agency to defend themselves and to be heard by law enforcement,” Wolf said. “So the fact that FOSTA-SESTA doesn’t affect them at all sort of highlights the fact that it’s not trying to reach people who are in these situations. It’s really just trying to police people who are working online.”

Blunt and Wolf said that’s part of a bigger picture in which the most vulnerable workers are put in even greater danger. Transgender workers, for example, are at an especially elevated risk of violence because it’s harder to find safe clients.

An opportunity for justice

Still, FOSTA-SESTA has its supporters — including Melanie Thompson, the advocate who was trafficked as a child.

“The majority, over 98% of individuals who engage in prostitution, are vulnerable people already,” she said. “I think it’s highly unfortunate if there’s somebody who is disabled. And I do recognize that that puts a strain on their workforce or their employment opportunities. However, there are so many other ways to work from home that don’t involve the constant reusing and repurchasing of your body. I think this is just another way for people to try to push the pro-prostitution agenda by saying that disabled people, their only option is prostitution. I think that’s false. And again, I recognize that they may have a harder time finding work, but this is not the only option.”

Thompson acknowledged that choice can be a tricky thing when it comes to the sex trade, which she calls “an oppressive system that thrives off of other oppressive systems, namely misogyny, patriarchy and capitalism.”

“When you recognize prostitution as a system that thrives on those other systems, you can see how prostitution can never be an individual choice,” she said. “Therefore, many of the people who self-identify as sex workers, although on the surface may not have a pimp or an exploiter, are actually engaging in prostitution because of the level of choice and resources that they had.”

What FOSTA-SESTA offers is a chance for retrospective accountability, which Thompson is hoping to gain through a lawsuit that she filed earlier this year against Backpage for its role in her years of abuse.

“I want people to know that this is something that I will never live down,” Thompson said. “I suffer every day in every part of my life — financially, mentally. I can’t tell you — I suffer with PTSD and depression diagnosed, I still have suicidal ideation, I have to look at myself in the mirror every day and remember all of the negative things my pimp, sex buyers, all of the things that they have told me about how I would never amount to anything or be anything.

“I have to live with those memories. I have to live with the beatings, being held at gunpoint, the constant rapes, the times that I — excuse my vulgarity — but the times that I’ve had to bend over while a sex buyer was having sex with me so that they didn’t see me crying while it was happening,” she said. “And I need people to understand that once this happens, you can take the person out of prostitution, but you can never take prostitution out of that person, that trauma that comes with all of those harms. That’s something that me and every other survivor I’ve ever met will never forget.”

Next-generation legislation

There hasn’t been much evidence showing that FOSTA-SESTA has helped reduce sex trafficking.

The government claims the laws have decreased sex trafficking ads by 90%. But an analysis by the Washington Post found that just four months after FOSTA-SESTA’s passage, that number had rebounded to 75% of the original figure.

There hasn’t been much research, period, on the laws’ effects. (Though a new bill is under consideration that would require the National Institutes of Health to conduct a study on just that.)

“It’s really easy to pass the law when it’s guised as an act that’s just going to help prevent human trafficking,” Wolf said. “But what people weren’t paying attention to was the fact that it really doesn’t do much to actually prevent human trafficking. And what sex workers said was going to happen is that it’s actually going to make people more vulnerable to human trafficking by taking away harm reduction techniques.”

Despite that lack of research — and continued backlash from sex workers and free-speech advocates — a bipartisan group of senators is pushing forward a new bill that doubles down on the spirit of FOSTA-SESTA.

The EARN IT Act (Eliminating Abusive and Rampant Neglect of Interactive Technologies), introduced in March, aims to scrub the web of child sexual exploitation using a model similar to FOSTA-SESTA.

EARN IT encourages web platforms to adopt a stricter moderation/censorship approach by weakening the Communications Decency Act’s Section 230, which shields websites from lawsuits over illegal content posted by users.

The bill originally proposed that websites be forced to “earn” back their Section 230 protections, by adhering to rules created (and judged) by a commission headed by law enforcement. Earlier this week, the Senate Judiciary Committee advanced a weakened version of the bill that hands the power of the commission over instead to state lawmakers.

Though the amended version eases some concerns over law enforcement heading up privacy rules, critics — which include free-speech advocates like the ACLU and the Electronic Frontier Foundation, along with sex worker groups like Hacking//Hustling — remain concerned that EARN IT will deal a serious blow to digital privacy.

“EARN IT is written using language to ostensibly stop child sexual abuse materials,” said Danielle Blunt, “but what it will likely be used to do is end end-to-end encryption, police language on online platforms, chill speech, de-platform sex workers, censor harm reduction materials, and make resources for survivors less accessible.”

Blunt worries that, like FOSTA-SESTA, EARN IT could be especially harmful to people in vulnerable positions, “making resources, community, and information less available and increasing sex workers’, survivors’ and sex working survivors’ exposure to violence.”

Kendra Albert, the cyberlaw clinic instructor at Harvard Law School, echoed Blunt’s concerns, adding that they’ll likely become everyone’s concerns soon.

“As [analyst and researcher] Bardot Smith has said, ‘Sex workers are often the canaries in the coal mine,’” Albert said. “The things that happen to them first are what’s going to happen to everyone else next.”

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