The Human Cost Of FOSTA
As you'll recall in the run up to passing FOSTA last year, supporters of the bill -- backed in secret by Hollywood lobbyists whose sole goal was to create liability for internet companies and force them to install filters -- kept insisting that it was all about "protecting women." There was an infamously misleading Public Service Announcement that supporters of the bill put together, staring into the camera and talking grimly about how necessary it was to amend Section 230 to save women. It starred a bunch of famous actors, including Amy Schumer, Tony Shalhoub, Josh Charles, Seth Meyers, and others.
Of course, since FOSTA passed, it has yet to be used against any website. Indeed, the website that everyone kept holding up as proof for why FOSTA was needed, Backpage, was actually shut down a week before FOSTA became law under existing laws.
And yet, FOSTA has created tremendous real world damage. A bunch of sites and individuals have been silenced out of fear that it might be used against them, creating massive chilling effects -- including chilling effects on advocacy and information providing groups who try to help sex trafficking victims, but who now may violate FOSTA in continuing to do that work.
Lura Chaberlian has now published a deep dive into how FOSTA is a "hostile law" with "a human cost" for Fordham Law School. The quick summary of the paper is that FOSTA hasn't done anything to help sex trafficking victims, but has created real harms for many women, especially those engaged in consensual sex work.
According to the 485 members of Congress who supported the law andthe numerous celebrities who appeared in public service announcementsevangelizing it, the Allow States and Victims to Fight Online SexTrafficking Act of 20176 ("FOSTA") was going to save people. FOSTAenjoyed a glowing narrative as a panacea for sexual corruption in the UnitedStates: it would reduce deaths, prevent rapes, and gut the marketplace forabusive sexual activity. Pimps would no longer be able to so readily sell a woman's body, and children would be safe from predation. These resultswere as good as guaranteed because a significant amount of sex traffickingoccurs online. FOSTA would make it a crime for websites to continueallowing malefactors to advertise for this abhorrent behavior on theirplatforms. With trafficking off the internet, the sex industry wouldshrivel. The right parties would be held responsible. No one would gethurt.
Within one month of FOSTA's enactment, thirteen sex workers werereported missing, and two were dead from suicide. Sex workers operatingindependently faced a tremendous and immediate uptick in unwantedsolicitation from individuals offering or demanding to traffic them.Numerous others were raped, assaulted, and rendered homeless or unable tofeed their children. These egregious acts of violence and economic devastation are directly attributable to FOSTA's enactment. Meanwhile, lawenforcement professionals have complained that their investigations into sex-trafficking cases have been "blinded"-they no longer have advertisementsto subpoena, digital records to produce for prosecutors, and leads that canbring them to live crime scenes full of evidence, like hotel rooms. Thisblindness is not for lack of anything to see: one report suggests that onlinesex trafficking is as prevalent as ever.
Just to be clear, in the actual report, in just those two paragraphs, there are 17 footnotes to articles detailing every statement made (the full paper has 330 such footnoted citations). This is a huge collection of evidence around the very real harms of FOSTA. As the paper notes, rather than saving lies FOSTA is "a law with a body count" attached to it:
FOSTA directly endangers individuals who perform commercial sexualservices by driving these transactions away from the relative protection ofthe internet and back onto the street. Traditionally, solicitation of a sex worker's services took place during an in-person encounter that alsofunctioned as an advertisement for business: a brothel or, more recently,the street. Street work is more dangerous than indoor work and can evenbe lethal. Rape and assault are prevalent and seen as inevitable, andworkers are at risk of violence from clients and law enforcement alike. Asthe internet became a ubiquitous utility, sex workers were able to move thenegotiation and solicitation stages of their business to online forums that didnot demand physical presence. Sex workers gained the means to create anelectronic record of client communications, screen potential clients, andcommunicate with one another about dangerous clients, safe spaces, andother industry-specific health and safety tips. The shift onlinerevolutionized the industry, imbuing sex work with a previously nonexistentlevel of safety and decreasing the need for third parties as security oradvertisement intermediaries. The effect was striking: a 2017 study foundthat "from 2002 to 2010, when Craigslist's erotic-services site was active andsolicitation moved indoors, the female homicide rate fell by seventeenpercent."
Incredibly, the paper highlights how FOSTA is likely to create more sex trafficking since sex workers may feel pressured to have pimps for protection, which they didn't need previously.
FOSTA confines commercial sex to its most dangerous model. SinceFOSTA's enactment, sex workers have reported an increase incommunication from "pimps" claiming that their services are necessary.Although some sex workers work with third parties voluntarily, othersmay feel pressured into a situation that could easily become sex trafficking,meaning that FOSTA could actually facilitate sex trafficking by forcingconsensual sex workers into coercive situations. Further, the workersmost endangered by street-based sex work tend to be from marginalizedcommunities. Women of color are disproportionately arrested andprosecuted for prostitution-related offenses, and forcing sex work into thestreet will only increase these arrests. In addition to scrubbingadvertisements for consensual sex from online forums, FOSTA threatens access to secondary online resources used for protection and verification.284None of these consequences has a valid relationship to FOSTA's purportedaim.
So, despite that dramatic PSA above, so far FOSTA has:
- Not helped take down Backpage (existing laws did that)
- Led to widespread internet censorship, including information designed to help sex trafficking victims
- Put sex workers in much greater risk, leading to multiple deaths and disappearances
- Facilitated more sex trafficking by pushing sex workers into the waiting arms of traffickers for "protection"
- Not shown any actual decrease is sex trafficking or sex trafficking advertisements.
So, maybe, someone should be asking Amy Schumer, Tony Shalhoub, Josh Charles, Seth Meyers, and those others how they feel about this law that they were instrumental in getting passed. Or, better yet, someone should be asking whoever it was who put them up to be spokespersons for this terrible and unconstitutional law.
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