FOSTA Is One More Reminder of Why We Need to Decriminalize Sex Work

So, what is FOSTA and what will it do?

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On February 27, the House quietly passed a bill called the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) and will head to the Senate for a vote on March 12. By name alone, it seems like a positive step forward in the fight against sexual violence and sex trafficking. But, it’s much more complicated than that: as critics have noted, if the bill manages to pass in the Senate there could be devastating consequences for internet free speech, for consenting sex workers and sex trafficking victims, and for the LGBTQIA+ community. As many sex trafficking victims and sex workers have argued, the bill is simply one more reason why we need to decriminalize sex work and why we need to do it now.

So, what is FOSTA and what will it do? It’s a bill that would allow states and sex trafficking victims greater power to sue and prosecute websites whenever their users engage in illegal activity, even if the site isn’t aware that activity is happening. In doing so, the bill would undermine Section 230 of the Communications and Decency Act (CDA) which, since 1995 has more or less held that websites should not be held responsible for illegal user-generated content unless they are aware of said activity or are actively promoting it. It would also make facilitating the prostitution of another person online, presumably by sex traffickers, a federal offense punishable by hefty fines and/or 10 or more years in prison.

However, as the Electronic Frontier Foundation (EFF), a nonprofit dedicated to preserving civil liberties in the digital world, argues, states already have the power to prosecute sex traffickers and Section 230 doesn’t prevent the federal government from prosecuting websites that break federal criminal law.

Thus, it seems that the bill is really a thinly-veiled attempt to limit free speech online, to earn politicians credit for “protecting women,” and to attack consensual sex workers in the process. If the bill passes, websites will need to reconsider how they manage user-generated speech. As EFF notes, “Facing the threat of extreme criminal and civil penalties, web platforms large and small would have little choice but to silence legitimate voices… Platforms would have to take extreme measures to remove a wide range of postings, especially those related to sex.”

And, that’s likely to have devastating consequences. As we’ve seen so many times before, when sexual speech is regulated, LGBTQIA+ folks, sex workers, and the folks for whom those two identities overlap are likely to experience the most backlash. For example, you might recall that YouTube came under scrutiny in 2017 when its new restricted content setting began inexplicably filtering family-friendly LGBTQIA+ content.

But, perhaps the most chilling effect of the bill is how it will negatively impact consensual sex workers and sex trafficking victims alike, many of whom have used the hashtag #SurvivorsAgainstFOSTA to express concerns over how the bill will impact sex worker’s ability to work safely and to share harm reduction tools with one another. Since LBGTQIA+ and especially trans folks are far more likely to be sex workers than our straight, cisgender counterparts, the bill will have an especially major impact on queer and trans communities. As such, sex worker advocacy and LGBTQIA+ organizations have used Twitter to rally against the bill including the National Center for Transgender Equality (NCTE) which urged Congress to reject the bill “which would make trafficking survivors and sex workers less safe by making efforts to protect themselves a crime.”

One major benefit of sex workers being able to advertise their services online is that it’s often a much safer alternative than street-based sex work, especially for trans women of color. In recent years, the federal government has begun to crackdown on online websites that allow sex workers to seek out clients such as the raids and the recent federal investigation of Backpages which helped to spur the FOSTA-SESTA bills in the first place. Without these resources available, it is likely that many more people will return to street-based sex work.

The internet has also been an important resource for sex workers to share harm reduction tools with one another including lists of bad clients, references, and resources on safer sex. As former NYC sex work organizer Kate D’Adamo wrote on her Twitter, “#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.”

The bill also makes dangerous conflations between consensual sex workers and sex trafficking victims. It’s often the case that sex trafficking victims are criminalized as sex workers while consensual sex workers, in the public eye, are seen as helpless victims who only enter the trade out of desperation. Because this bill doesn’t make neat distinctions between the two, sex workers who advertise of their own volition or even simply communicate with other sex workers could face serious federal criminal charges while sex trafficking victims may wind up subject to those same harsh penalties.

Because the same words may be used to advertise one’s services or to speak out against sex trafficking, the bill is likely to silence sex trafficking victims just as much as it will hamper consensual sex worker’s ability to work and do so safely. As the EFF argues, “The very same words and phrases that a filter would use to attempt to delete sex trafficking content would also be used by victims of trafficking trying to get help or share their experiences.”

And, at the end of the day, the bill simply isn’t going to prevent or even decrease sex trafficking. As we know from so many other criminalized behaviors, prohibition doesn’t prevent crimes from happening. It only makes sure that they happen in more dangerous, more risky, and more covert ways. Sex traffickers will find a way to do what they do regardless of whether this bill is passed.

Of course, that doesn’t mean that we should give up on fighting sex trafficking. Instead, just as sex workers and sex trafficking victims alike have argued for years, including the US-based Sex Worker Project which advocates for both sex workers and sex trafficking victims, the best way to advocate for the safety of sex workers and sex trafficking victims is to push for the decriminalization of sex work.

What is decriminalization? It’s the removal of criminal penalties for engaging in sex work. However, this would be different than legalizing sex work. If sex work were legalized, the government would have the power to tightly regulate the sex work industry, intensely surveil sex workers, and impose criminal penalties on those sex workers who fail to meet government regulations. Decriminalization would allow sex workers to continue their business as usual, but much more safely and without fear of criminalization.

Decriminalizing sex work would make it so sex workers could more easily access health care, safer sex tools, and treatment and prevention resources. In fact, a 2014 study in The Lancet of female sex workers in Canada, Kenya, and India found that decriminalizing sex work could have a massive impact on new HIV infections across all settings, amounting to a 33 to 46 percent decrease.

In many places, police profile people they suspect of engaging in sex work, particularly trans women, and can arrest them simply for carrying condoms on charges of intent to engage in sex work. Decriminalization would make carrying, and of course using, condoms a much safer practice.

Decriminalization would allow sex workers to work openly without fearing being found out, meaning they can do so in safer spaces. This is especially important for street-based sex workers who are often forced to work in dark secluded spaces in order to avoid being discovered and arrested, putting themselves at greater risk of harm.

In addition, the police are some of the most likely people to commit violence against sex workers. Although recent statistics on the subject are sorely lacking, a 2003 study of New York City sex workers by the Urban Justice Project found that 30 percent of respondents had been threatened by the police and an astonishing 17 percent had experienced sexual violence at the hands of a police officer. With police out of the equation, sex workers will be much safer.

Lastly, as it stands, if a sex worker is raped, beaten, or robbed, there are very few actions they can take to mitigate that harm without fear of being arrested or experiencing bias whether it’s from the police, medical personnel, or victim advocacy programs. With sex work decriminalized, workers would be able to pursue more options without fear of being outed and criminalized.

And, there are plenty more reasons than what I’ve explored here. Open Society Foundation’s 10 Reasons to Decriminalize Sex Work is an incredibly helpful resource if you’re looking to find out more.

So, if you truly stand with sex trafficking victims, if you truly stand with sex workers, it’s time for you to speak up and make your voice heard. Contact your Senators and urge them to vote “no” on this dangerous bill. Check out the EFF’s website to find actions you can take to stop FOSTA. Get involved with your local sex worker advocacy organization. And, help spread the message:

The time to decriminalize sex work is now.

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