The Real Story of the Bipartisan Anti–Sex Trafficking Bill That Failed Miserably on Its Own Terms
“In case after case, we successfully prosecute traffickers, but we cannot pursue the websites that profited from the ads placed by these vile operations,” Manhattan District Attorney Cy Vance told reporters in 2018. “FOSTA-SESTA would finally enable action against what are essentially online, open-air bazaars.” That law, the “Stop Enabling Sex Traffickers Act” and “Allow States and Victims to Fight Online Sex Trafficking Act,” more commonly known as SESTA/FOSTA, which was pitched by Vance and countless others, such as (then) President Trump and Senator Kamala Harris, as an urgently necessary tool to fight sex trafficking, has since resulted in just one federal prosecution, according to a new report from the Government Accountability Office, or GAO. Congress passed SESTA/FOSTA three years ago, a direct response to a network of anti–sex work groups, along with high-powered lawyers and celebrities, who had told lawmakers and the public that without such a law, websites like Backpage would be able to, in the words of one of the campaign’s PSAs, sell children for sex “as easy as ordering a pizza.” Mary Mazzio, an attorney whose documentary I Am Jane Doe was viewed as a singular catalyst for the legislation, said in an appearance on Dr. Oz that SESTA/FOSTA was a necessary tweak to existing internet law to “ensure that children can’t be bought and sold online with impunity.” Lawmakers reinforced the talking point by claiming that without changing the law, Backpage could not be held accountable for alleged sex trafficking. Senator John McCain, who co-sponsored the legislation, announced his support by claiming, “It is disgraceful that the law as written has protected Backpage from being held liable for enabling these horrific crimes. Our legislation would eliminate these legal protections and ensure companies like Backpage are brought to justice for violating the rights of the most innocent among us.” That wasn’t true, as the GAO report backs up: “Federal prosecutors say they have only used the law once because it is new and they’ve had success using other laws to prosecute such offenses in the past.” And that single prosecution wasn’t even against Backpage.If SESTA/FOSTA was intended to protect people by making it easier to prosecute traffickers, it was a miserable failure. This has already been documented by sex workers’ rights advocates and attorneys. In the first in-depth legal analysis of SESTA/FOSTA and its impact, published in the Columbia Human Rights Law Review, Kendra Albert, Elizabeth Brundige, and Lorelei Lee concluded, in part, that “though the exact legal applicability of FOSTA is speculative, it has already had a wide-reaching practical impact; it is clear that even the threat of an expansive reading of these amendments has had a chilling effect on free speech, has created dangerous working conditions for sex-workers, and has made it more difficult for police to find trafficked individuals.” If SESTA/FOSTA was meant to associate sex workers with allegations of sex trafficking, leading platforms to refuse them service out of fear of increased legal risks, and in turn further marginalizing and stigmatizing sex workers, it was a tremendous success. Sex workers’ rights advocates and advocates for victims of human trafficking alike warned Congress that passing new laws and demanding tougher prosecutions would end up harming all of them. “It’s the assumption that if we go after all prostitution, we will by definition get some trafficking in there anyway, since it’s all ‘exploitative,’” anti-trafficking and sex workers’ rights advocate Laura LeMoon told me in 2018. “SESTA will send these women back to the abusive managers, cop violence, rape, and monotonous misery of street work,” another advocate, Caty Simon, told me, also in 2018, reflecting on the women she organized alongside who use drugs or are unhoused, and whose access to online ads helped them gain more control over their work and lives in general. Banning these websites, I heard over and over that year, as the laws were up for debate still, would make people in the sex trade more vulnerable. The new GAO report on SESTA/FOSTA, issued Monday, helps validate many of these concerns shared by sex workers and survivors of trafficking. As the report notes, rather than helping identify and prosecute traffickers, what SESTA/FOSTA did was push online sex work ads to the margins. The reason only one federal prosecution has resulted from the law illuminates this broader reality: “Gathering tips and evidence to investigate and prosecute those who control or use online platforms has become more difficult due to the relocation of platforms overseas, platforms’ use of complex payment systems, and the increased use of social media platforms.” It’s no mystery why it has “become more difficult.” The report concludes that two events that “disrupted the landscape of the online commercial sex market” are responsible: The Department of Justice seized Backpage.com on April 6, 2018, and just five days later, Trump signed SESTA/FOSTA. The “solution” became the problem.This order of events is significant, too, as it undermines the case made for the law. Backpage operators did not face prosecution under SESTA/FOSTA, because it hadn’t been enacted yet. They were charged with violations of the Travel Act, the same law that had successfully been used to prosecute another ad site, MyRedbook, in 2014, as well as prosecuting Rentboy in 2015, both cases the GAO report notes. That is, contrary to claims by SESTA/FOSTA supporters, SESTA/FOSTA was not needed to prosecute Backpage. But this was lost even on one of the law’s most prominent backers. Representative Mimi Walters, a Republican congresswoman from California, said on Twitter the day Backpage was seized, “Thanks to #FOSTA with my #SESTA Amendment, the Department of Justice has seized backpage.com and affiliated websites that have knowingly facilitated the sale of underage minors for commercial sex.”The GAO report is careful to note, “Because these events occurred so close together, it is not possible to trace changes to the market to one event or the other.” Sex workers, too, report that it was incredibly difficult for sex workers who relied on online ads to respond, in part because it was so unclear which event was responsible. Before both events, websites escalated the removal of sex workers from their platforms when the House and then the Senate passed their respective bills. Still, both events were seen as one victory by those demanding passage of SESTA/FOSTA and those demanding the closure of Backpage, who saw one as the tactic to eliminate the other, even if that wasn’t borne out by the way laws work. But then again, maybe they did have an accurate understanding of how laws work: By generating a media and political moment in which they could elevate Backpage into a bogeyman, they very likely made the passage of SESTA/FOSTA easier, even if one—in terms of the mechanics of the actual prosecution—had little to do with the other. The anti–sex work groups in particular who pushed SESTA/FOSTA saw it as part of their broader political project of eradicating sex work altogether, even as they insisted—and continue to insist—that sex workers were not the targets of the law.This is why the GAO report could go down as just more dubious fuel in the stubbornly fact-resistant anti–sex work wars. First, the report might end up pretty much ignored in Congress, even if it commissioned it as a provision of SESTA/FOSTA, as it invalidates its own arguments in favor of the law. Second, if I were an anti–sex work group that wanted to further gaslight sex workers about these laws, I can see why, “It was only used once, and it wasn’t even used against a sex worker, directly” might seem like an accurate read of the GAO report, too.Perhaps the GAO report will give some momentum to a bill calling for a comprehensive study of SESTA/FOSTA, introduced in 2019 by two Democrats, Representative Ro Khanna California and Senator Elizabeth Warren—who herself voted for SESTA/FOSTA in 2018—with support from Representatives Barbara Lee, Ayanna Pressley, and others, and which did not pass. “It’s not even like we had a debate in Congress and said, ‘OK, this is going to drive sex workers out onto the streets and increase violence, but the benefits outweigh the risks,’” as Khanna described the passage of SESTA/FOSTA to MTV News. “There wasn’t even a consideration of the impact.”Yet sex workers and trafficking survivors—who are also sometimes the same people—tried to inform Congress and the public, before the law passed, that as a result of SESTA/FOSTA, they would face increased marginalization while it also failed to protect them from exploitation. Congress just failed to listen. Despite its clear aims, sex workers did not disappear after SESTA/FOSTA. After the law’s passage, sex workers in the United States mobilized in unprecedented numbers, launching new community-based organizations, legislative campaigns, community-based research, and mutual aid projects across the country. In the three years since, they have shifted public opinion in support of decriminalization and introduced a number of bills repealing anti–sex work laws (and in New York state, they have succeeded in abolishing an anti-prostitution loitering law, also known as the “Walking While Trans” ban). Sex workers’ concerns about SESTA/FOSTA are the concerns they have long had about criminalization: that the criminal legal system is more a source of harm and violence than safety or justice. Congress is likely unready for a debate about the limitations of the legal system. But perhaps, in the meantime, it could at least acknowledge what the GAO is trying to tell it: It was wrong about SESTA/FOSTA.
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