Enough About FOSTA's 'Unintended Consequences'; They Were Always Intended

Legal Issues

from the it's-what-they-wanted dept

It feels inevitable that if you?re talking about FOSTA/SESTA (the federal law passed in 2018 that amended section 230), someone, at some point, will mention that it was aimed at combatting sex trafficking that had unintended impacts on folks doing consensual sex work.

Just to provide a few examples, there?s a law review article about FOSTA called ?good intentions and unintended consequences.? Or you could look at the 2018 OC Register article called ?The Unintended Consequences of a Well Meaning Anti-Sex-Trafficking Law? (complete with cliche sexy legs ?). Even Elizabeth Warren, in the announcement for the SAFE SEX Workers Study Act, said ?As lawmakers, we are responsible for examining unintended consequences of all legislation, and that includes any impact SESTA-FOSTA may have had on the ability of sex workers to protect themselves from physical or financial abuse.?

But as @cybwhoregology has been pointing out, the narrative of ?unintended consequences? is utter nonsense. Negative effects on sex workers (and there were many) were not ?unintended.? The text of the law explicitly criminalizes the promotion of prostitution and it?s hard to argue that an interpretation of the law that was clear from its text is unintended. Sex workers and trafficking survivors were very clear about the likely outcome of FOSTA/SESTA prior to its passage. Finally, this narrative is contradicted by what the organizations that supported FOSTA say about their own goals.

1. FOSTA explicitly criminalizes the promotion/facilitation of prostitution that does not involve trafficking.

So the first conclusion I reach when I read these takes is that people have not even skimmed the text of the bill. I don?t really blame them – it?s pretty incomprehensible. But go take a look – the final text is here. I?ll wait.

Okay, do you see why it?s ahistorical to claim that negative effects on sex workers were unexpected? Just in case not, I?ll break it down for you.

Look at 18 U.S.C. ?2421A – the bottom of the first page. This is a federal criminal provision, created by FOSTA, prohibiting promotion or facilitation of prostitution. Note that this does not require that any sex trafficking took place. The text clearly says that it is a federal crime to run a computer service with the intent to promote or facilitate prostitution of another person.¹ You can have an aggravated violation under 2421A(b) if the website promotes or facilities the prostitution of 5 or more persons, OR acts in reckless disregard of the fact that such conduct contributed to sex trafficking.

I am going to repeat that point again. You can have a criminal charge under FOSTA, including an aggravated criminal charge, without any trafficking taking place at all. Just promotion or facilitation of prostitution (aka consensual sex work).

This concern is not merely hypothetical. The one criminal prosecution that has happened (US v. Martono, about CityXGuide) under 2421A just resulted in a plea deal where the defendant pled guilty to promotion of prostitution and conspiracy to facilitate prostitution. Although the Department of Justice talked about trafficking in their press release, they never ultimately charged Martono with trafficking, likely because they could not prove that he had the level of knowledge required.²

As if that wasn?t enough, FOSTA also changed Section 230 (the federal law that previously had limited internet platform?s liability) to also allow for state criminal charges against platforms based solely on conduct related to sex work, so long as the conduct underlying the charge is based on 2421A.³

You cannot pass a bill that creates additional federal criminal charges and removes immunity from state criminal charges for the promotion/facilitation of prostitution and then claim that negative effects on sex work were an accident! If the people who passed this bill, and those that advocated for it, didn?t want to harm sex workers, they shouldn?t have passed a bill that created additional crimes for the promotion of prostitution.⁴

2. Sex workers were incredibly clear about the likely impact of SESTA/FOSTA before and at the time of its passage.

The second reason that the narrative that the negative outcomes of FOSTA on sex workers was an unintended consequence is nonsense is because it requires erasing (or ignoring) the people who pointed out contemporaneously that the bills were going to harm sex workers.

If you want receipts, there is the Survivors Against SESTA page from 2018 that encouraged folks to call their Senators to explain how FOSTA/SESTA would harm sex workers. Survivors Against SESTA also produced a one-pager on why sex workers need online spaces. Oh, and here?s their one-pager on how FOSTA and SESTA would harm workers. New Orleans Harm Reduction has a page from 2018 where sex workers outlined materials as part of the social media campaign against FOSTA.

Media even covered these concerns! Here?s a contemporaneous article from Melissa Gira Grant quoting sex workers? rights experts about the negative impact of either FOSTA or SESTA on sex workers. And there?s a FastCompany article with a tweet from Kate D?Adamo, who said ?I was a #sexworker organizer for years in NYC. #FOSTA would undermine almost every single thing I would tell people for how to stay alive. ALL screening, ALL peer references, ALL bad date lists I could send. #SurvivorsAgainstFOSTA.?

It?s also worth checking out the #LetUsSurvive or #SurvivorsAgainstSESTA hashtag, where you can still find many of the posts that people made prior to FOSTA?s passage. (Although the historical record is obviously incomplete because of account deletions, caused in part by platforms? fear of liability under FOSTA. I believe Alanis Morissette would call that ironic.)

FOSTA and SESTA were two bills that were advocated for by different organizations that were combined into one, giant, bad, law. If SESTA alone was passed, it would have been plausible to argue that anti-sex work effects were collateral damage to efforts to prevent sex trafficking, if not for the accurate predictions about consequences of the bill. In short, sex workers expected these consequences, and said quite clearly that these were the likely outcomes. To quote Bardot Smith, ?WHORES TOLD YOU.?

3. Many of the people who advocated for the bill saw increasing the difficulty of engaging in consensual sex work as a feature of the bill, not a bug.

Content warning for language that ignores sex worker agency – skip the next paragraph if that?s harmful to you.

It?s not just that calling the effects unintended erases sex workers? advocacy and labor. It also ignores the fact that some people who oppose ?sex trafficking? often do want to eliminate all sex work. For example, one supporter of the bills was CATW (the Coalition Against Trafficking in Women). CATW explicitly seeks to end what they call ?sexual exploitation,? which it defines as possible ?only if no woman or girl is trafficked, exploited or prostituted in the sex trade.?⁵ So from the angle of organizations like CATW, as well as the National Center on Sexual Exploitation (formerly known as Morality in Media), and others, the harm to sex workers (who they often do not believe are legitimate stakeholders) is, in fact, a feature, not a bug. If you?re looking for a useful summary of how this dynamic plays out in reporting, I suggest this piece from WHYY Philadelphia. In it, someone who works for CATW and who is speaking from their experience being trafficked makes the claim that ?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.? That?s not a statement that is consistent with the idea that harm to sex workers is an unintended result of anti-trafficking efforts.

Of course, this debate goes back far further than section 230 — it?s a rehashing of a set of conversations that took place during the white feminist sex wars of the 1970s. Far more eloquent people than I have written about how it is true that the binary between sex trafficking and sex work does not do a good job of capturing folks? experiences, but that?s because it is a product of whorephobia. Whorephobia comes down to the idea that there is something uniquely damaging about work that involves sex, rather than the damage coming from society?s distaste for sex work and the stigma that comes along with that and criminalization.⁶ (Just to be clear — there is not. Many of the harms that people articulate as coming from this kind of work come from criminalization itself, as well as the lack of affirming health and social services.) Fundamentally, it is impossible to truly respect and listen to sex workers and believe that the goal should be the elimination of sex work, unless you also believe that all work should be eliminated.⁷

To pull us back to FOSTA, I suspect most mainstream technology policy organizations (and reporters, and pundits/scholars) do not want to comment on or engage with the fact that some (but not, by any means, all) anti-sex trafficking organizations believe that all sex work is inherently exploitive or leads to sex trafficking. Thus, the argumentative move seems to be to suggest that the intentions of the people who promoted FOSTA/SESTA were good and the harm to sex workers was unexpected. I understand this from a realpolitik perspective — the politics of the anti-trafficking space can seem complicated, and no one wants to appear to be pro-trafficking. And admitting you?ve caused harm is hard! However, again, pretending that prostitution was ?accidentally included? or that FOSTA was a bill that was only aimed at ending what the law defines as sex trafficking is at best, revisionism.

Conclusion:

Most people who talk about FOSTA?s unintended consequences are not bad people, nor are they trying to erase or ignore sex workers. But the narrative that sex workers were ?collateral damage? of an anti-trafficking bill is ahistorical and compounds the harm. Please, please, stop saying that the effects were unintended.

Did you find this post useful? Please throw some money at Hacking//Hustling, who has been working to cultivate a better understanding of the impacts of FOSTA. You can donate here.

Thank you to Danielle Blunt and Riana Pfefferkorn, who provided very helpful feedback on this post! All mistakes are my own.

Notes

Originally posted to Kendra’s personal blog.

Filed Under: consequences, fosta, section 230, sesta, sex trafficking, sex work