Fighting Surveillance Tech with Trademark Transparency: Workshop with Decoding Stigma

Decoding Stigma and Hacking//Hustling present a workshop with Gabriella Garcia, Kendra Albert, and Amanda Levendowski.

Sex work stigma has been used to justify research funding for surveillance technology that profiles and further harms at-risk communities. From non-consensual image and data scraping to algorithmically-informed deplatforming, the sex worker is both indispensable yet disposable for those behind the development of these technologies.

Amanda will teach you how to access the Trademark Electronic Search System (TESS) and use trademark disclosures to take action against surveillance technology in development.

Let’s get started.

Gabriella Garcia: So I am Gabriella. I am here on behalf of Decoding Stigma along with a couple of other comrades. I am on the unceded land of Haudenosaunee peoples. I urge you to research the communities that you’re located on. And this acknowledgement demonstrates a commitment to the beginning process of working to dismantle the ongoing legacies of settler colonialism.

But beyond just acknowledging this is extraordinarily relevant to our conversation today. The ongoing genocide of indigenous bodies is a product of state surveillance that protects extractive capitalism and incarcerates and disappears some of our most marginalized comrades.

I must also pause for a moment to highlight that today is trans day of remembrance. In the past 12 months, 350 trans and gender diverse people were reported killed globally and sex workers do make up the majority, about 62% of victims. Enforcement of gender conformity is a surveillance practice.

Bathroom bills are a carceral technology that endangered trans bodies. Walking while trans laws that disproportionately target trans women, and particularly trans women of color, for purportedly loitering for the purpose of prostitution. The horror of being trans while incarcerated, even Chelsea Manning’s gender identity was held as a point of threat, attempting to intimidate her into complying with the state. If you haven’t read it, I highly recommend Going Stealth by Toby Beauchamp.

So in terms of this workshop, sex work stigma has been used to justify research for, and the deployment of surveillance technology that ultimately profiles and further harms at risk communities. Non-consensual image and data scraping of online sex work platforms in order to train AI victim tracing technology, for instance, Stanford bragged about scraping more than 30 million advertisements of sex workers.

There’s zero accountability measures for how these images are classified, are they classified as criminal or victim. There’s no accountability about how they’re actually used, though we get reports of sex workers being stopped at borders or being identified in other manners despite any sort of attempts to actually create and protect their identities.

Algorithmically informed account shutdowns that strip laborers of their sources of income. We don’t know how algorithms codify sex workers. Literally, what does a sex worker look like to a machine or who has defined what high-risk behavior is and how that high-risk behavior can stop that person from being able to access income. The sex worker is both indispensable yet disposable for those behind the development of these technologies

So with all of that heavy information in mind, let me introduce our two panelists.

Kendra Albert is a clinical instructor at the Cyberlaw Clinic where they teach students to practice technology law. They hold a degree from Harvard Law School and serve on the board of ACLU of Massachusetts. They enjoy redistributing money from institutions, working on their solidarity practice and making people in power comfortable. Thank you, Kendra.

Amanda Levendowski is an associate professor at Georgetown Law, where her research and scholarship examine how intellectual property law can be used to creatively address challenging social issues that cross cut privacy and technology. Her recent work has explored non-consensual pornography, biased artificial intelligence, secret surveillance technology, and invasive face recognition.

Thank you both for being here and I will now pass the torch.

Kendra Albert: Awesome. Thank you so much, Gaby. That was an amazing introduction. And I feel really grateful to be here with Amanda and with all of y’all. I am on the unceded lands of the Lenni-Lenape people in Philadelphia, otherwise known as Philadelphia, Pennsylvania.

Amanda and I figured we’d start out by talking a teeny bit about sort of what is trademark and how does it fit into a broader constellation of tech tools, legal and otherwise, that you might use to learn about surveillance that affects your community or that’s happening in your community.

I’m going to turn it over to Amanda, to talk very briefly about what trademark is, because she has that down way better than I do. And then I’m going to talk about a little bit about some of the other tools that you might use. We’ll talk a little bit about why you might use trademark transparency in particular. And then Amanda will start with her very excellent slides.

So Amanda, over to you.

What is trademark?

Amanda Levendowski: So other than that so trademarks are at their core a form of intellectual property that protects a brand. You can think of Coca-Cola as a trademark, you can think of Georgetown University as a trademark, you can think of Harvard University as a trademark.

What trademark does in the context of what we’re going to be talking to you about today is using a tool called the Trademark Electronic Search System, or a TESS just to keep it catchy. And one of the things you can do is search to basically figure out how brands described themselves, to figure out what they’re actually saying when they create a surveillance technology that has a branded image, what do they use to describe its capabilities, its scope, and in some cases, how do they actually market it and advertise it to law enforcement to figure out how it’s going to be deployed in practice?

So that’s what we’re going to be talking about today. This is not how trademarks are traditionally used. This is one of those creative ways to use IP to break the system that Gabriella mentioned in our introduction. But it is a way to creatively uncover how these sort of aliens companies are describing their products in their own way.

How does trademark fit into the broader constellation of tech tools?

Kendra Albert: Thank you so much, Amanda. So I think one thing I want to just start with is to talk about how this fits into kind of our broader constellation of tools that you might use to get information on surveillance.

And I want to start by acknowledging that often the first and best tool to get information on surveillance is talking to the folks who are surveilled, right? About the things that they experience, about the ways in which they have seen things that police or law enforcement or child protective services, or any other sort of institutional actor have sort of found out about them. Because often that’s actually the first invest clue as to what’s going on sort of more broadly behind the scenes.

But let’s say you’ve already done that, what other tools are at your disposal?

So one thing that Amanda will talk about a little bit is procurement processes. So sometimes governments when they’re buying surveillance tools, either off the shelf or sort of asking companies to create them for them, will develop records of either what they’re looking for or what’s actually developed. And you can get those through the sort of lens of looking for procurement stuff. The legal tool you usually use to get that is freedom of information request.

So in the US there’s a Federal Law, which is FOI, the freedom of information act, but each state has its own FOI laws. That can be really useful, especially if what you’re looking for is certain kinds of government information. You can get all kinds of stuff that way.

But FOI laws generally don’t apply to private corporations. So you’re not necessarily going to be able to get ahold of Amazon’s internal information about how ring works using FOI, unless they’ve sort of sold it or given it to a government official and you’re able to kind of navigate the thicket of exemptions, and exceptions, and government delay tactics to sort of get a hold of that.

Other tools that you can use to kind of get access to government information about surveillance include litigation. So if you do sue a government agency over any particular set of practices, when you’re in what’s called discovery, which is sort of a process by which you can request information, you can sometimes get information either through talking to officials on the record, or being able to get documents about sort of different types of surveillance practices. What other methods am I forgetting Amanda?

Amanda Levendowski: There’s two that we’re going to talk about in just a minute, and we’re going to talk about securities and exchange commission filings which is a kind of surprising place. And I’ll explain a little bit more about that in a moment, but just know that they exist and you can find out information about a company’s market practices from those filings.

And the other one is patents, which we will also talk about in more depth than just a moment. But patents are publicly filed. They exist in a publicly searchable database, and there are ways to find otherwise previously unannounced surveillance technologies using patent system practices.

What’s the difference between a patent and a trademark?

Kendra Albert: So maybe you’re going to get to this in the slide. So if so, tell me to hold it and I will. What’s the difference between something in a patent and with a trademark?

Amanda Levendowski: Oh, we will get to it, but I would love to give a little amuse-bouche of what it is. The big difference is trademarks are related to something that is currently being used in commerce, the brand is currently being used on a product or a service, or there’s an intent to use it. You have to have a bonafide intent to use the brand in connection with the thing that you’re saying you’re going to use it for in order to acquire a Trademark Lawfully.

Patents are not a promise to create a product. You could file a patent for something that is technically impossible to create right now, but may exist in the future. You could file a patent defensively to prevent other people from trying to move in on something that you’re not interested in doing, but you also don’t want anyone else doing. You could also file it proactively about something that you may want to develop a long time in the future, depending on a bunch of different factors.

So those are the main differences, is a patent is not a promise to produce a product just to keep it alliterative and a trademark requires you to either be producing or have the intent to produce a product or service with that brand on it.

Kendra Albert: Awesome. So with that, do you want to get into the slides?

Using the Trademark Electronic Search System to Find Surveillance Technologies

Amanda Levendowski: Let’s do it. Okay. So the title of his talk is Fighting Surveillance Tech with Trademark Transparency. I am so grateful to be here. Thank you for that wonderful introduction, Gabriella and Kendra, and it is just an absolute pleasure and I’m so excited to talk about this project with all of you.

And hopefully my goal for the project is that you leave with two things. One, I want you to leave knowing something you didn’t know coming in. And two, I want you to leave feeling confident that you can use the Trademark Electronic Search System to find out something about a surveillance technology. So maybe that’s a really ambitious second goal, but I feel confident that we can do it.

But before we get there, I want to talk about how I came to this project. I came to this project because of Amazon Ring. A couple of almost two years ago now, I went on the Trademark Electronic Search System, I came up in my practice as a Trademark Lawyer when I was working at a private company. And I was curious about sort of the intersection of trademarks and surveillance, because I was like, “Well, you should be able to find out about surveillance technology at…”

Waffles is here… this is Waffles, she’ll be making a guest appearance….

“You should be able to find out about surveillance technologies based on the way companies describe their products.” And so I popped on a test and I looked up surveillance. And it just so happened that Amazon had filed a trademark for a product called Amazon Ring.

This was almost a year before it was publicly exposed that it was being partnered with law enforcement to essentially create a giant surveillance, a civilian surveillance dragnet of these devices, including ones that were sold or not sold, but given to law enforcement to give out to their communities to create a bigger network.

So, in other words, if we had been watching the trademark register more carefully, if we have been using tests more strategically, we could have found out about Amazon Ring a year before it was sort of on the public consciousness radar, and we may have been able to mount more of a defense and a resistance.

So that’s one opportunity that we have by using the Trademark Electronic Search System is finding out about these surveillance technologies before they are already entrenched in our communities.

Using Securities and Exchange Commission Filings to Find Surveillance Technologies

So I mentioned two other places that you can find publicly available information with pretty low friction. You can look through securities and exchange commission filings to find out publicly available information about how Amazon describes its strategic business plans.

However, as you can see, this is pulled from the 2018 acquisition activity filing from their K-filings, and you can see that it doesn’t reveal a lot of specific information about the plans for Ring. It doesn’t tell you that they were going to create, potentially partner with law enforcement with this technology. It doesn’t reveal that it’s going to be used for surveillance in that particular way.

It just talks about how much it costs and why they think that they want to do it, which is to serve customers more effectively. So you can use K filings, but it’s not going to be the most revealing.

Using Patents to Find Surveillance Technologies

Another possibility is patents. This is a form real patent that Amazon filed for generating composite facial images using audio visual recording and communication devices. Essentially this would be technology for again, surveillance.

However, when this was written by the press Amazon’s comment was, “We aren’t producing this product. This is just a patent file, a lot of patents, it’s kind of what we do. So you can’t really take this at face value and say, we’re going to produce a product, ’cause that’s not really how the system works and that’s not how it really how our business operates.”

And while that does sound a little bit like corporate doublespeak, it’s also true. It’s also how it operates in practice. There are a lot of technology companies who have some very sketchy patents, but a lot of those products are never, ever going to come to pass.

That does not mean we should not scrutinize these patents and take them to task for filing in the first place, but it’s not going to be the most revealing source of information because it’s always possible that it is just a perspective patent, not actually a promise to produce the product.

Why is surveillance transparency hard?

So the overview of what we’re going to talk about today is why is surveillance transparency so hard, ’cause it’s pretty hard as a lot of you know from experience, and how Trademark Law can help?

This is definitely not what was intended by the folks who pass the Lanham Act in 1946, but we’re going to take it and give them a new legacy, which is surveillance transparency. So let’s start with why is surveillance transparency is so hard?

I’m about to take you through a journey with the Queens of Obfuscation, who are a bunch of bad-ass scholars who have all the written about reasons surveillance transparency is so darn hard. So we’re going to go with the Queens.

The first queen is Catherine Crump, who’s written about, as Kendra mentioned, problematic procurement practices. I’m just, alliterating all over the place today. One of the challenges is that not every jurisdiction has procurement policies in place.

Procurement policies have basically guidelines for how municipalities and localities can acquire surveillance technology. And in some cases they have requirements that there’d be a public hearing, where civilians could hear about the technology and they can weigh in. There may be requirements about there being a civil liberties oversight board, who brings an opinion about the impact of the technology.

It can take a lot of different forms, but as maybe some of you know, because you’ve never heard of this before, not every jurisdiction has them and not every jurisdiction has them with the same strength.

So that’s one challenge, is while procurement policies can be really valuable in terms of finding out about these surveillance technologies before they’re entrenched, they’re not available everywhere and they’re not available equally.

Our second queen is Elizabeth Joh, who talks about private power. Because as I’m sure a lot of you know, a lot of these law enforcement agencies are not using law enforcement developed surveillance technology in order to use to surveil marginalized communities.

They’re using privately developed technologies by companies like Amazon, like Amazon Ring, in order to exercise their surveillance practices. And because of their private power, that means that a lot of the ways to work transparency that are usually available for government developed products are not available. And that’s one of the things that Elizabeth talks about in her [inaudible 00:18:04] scholarship.

The reason this comes up is because this can get in the way of freedom of information act requests, because our third queen, Hannah Bloch-Wehba, has talked about the flaws with the Freedom of Information Act and local laws in order to find out about these surveillance technologies, because there are lots of ways to obfuscate, and delay, and otherwise be non-responsive, or as Kendra alluded to, exemptions, exceptions, and delays.

What is trade secrecy?

There are also another challenge when it comes to surveillance technologies in particular, and that’s toxic trade secrecy. Trade secrecy is actually the fourth area of intellectual property law, it doesn’t get talked about in the same breath as the others, but it is just as important in the context of surveillance technology and particularly other algorithms because trade secret law is often used to shield those from public scrutiny as Sonia Katyal, our next queen has talked about.

In this context, companies can insulate themselves from disclosure because when you file a freedom of information request, you may not be required to disclose that information as a government agency if the information is protected as a trade secret.

This applies more to algorithms than it does to physical products, but a lot of you mentioned that you’re interested in algorithms generally, and this is one way that you would not be able to find out that information is [inaudible 00:19:22] the Freedom of Information act.

Rebecca Wexler has also written about this in the criminal context, because if there’s contact with the criminal system and an algorithm was involved, trade secrecy can be used to shield that even from a criminal defendant, which is particularly alarming. So all of these queens have addressed the ways in which surveillance transparency is so hard.

How can trademark law help with surveillance transparency?

But luckily I’ll be the next queen, I’ll tell you, there are ways that’s Trademark Law can help. So this is a quote from a case about Trademark Law, and it is unlikely that more than a tiny fraction of the public has any idea what federal registration of a trademark means.

Well, you are now in that tiny fraction of the public, who knows what trademark registration means, or you will by the end of this conversation.

So there are three key disclosures and trademark applications. To back up a little bit in order to acquire a trademark, this is a federal process, you have to fill out a trademark application, submit it to a government agency called the US Patent and Trademark Office, where a trademark examiner will do exactly what the title says, they’re going to examine it. And they’re going to see whether it hits all of the qualifications in order to become an actual federally registered trademark.

Most of the brands that I mentioned earlier are federally registered trademarks. Most of the brands you’re familiar with are also federally registered trademarks. As part of that process in the application, there are key disclosures which are relevant for finding out about a surveillance technology. There are others, but these are the three big ones. And I’ll be honest, they’re the three sexiest ones.

So the first one is a use definition. It doesn’t sound sexy, but I promise it is I’ll deliver. They use designation is what I was saying earlier, that’s the opposite of patents.

In order to get a federal trademark registered, there has to be… The mark either has to be in use, or there has to be bonafide intent to use. In other words, a company couldn’t come back and say after filing a trademark for a dystopian surveillance technology, “Oh, well, we didn’t really mean to do anything with it. We didn’t have any intention of producing the product.”

Because then while you’re in a rock and a hard place, you either lied to the US PTL and made a materialist representation in your trademark application, or you’re lying to the public in a pretty transparently obvious way. You can take your pick, but not either of them are equally… They’re both bad.

The other possibility is in your goods and services description. And this is what I was alluding to earlier, where how the brands have to describe what the thing that they’re on, actually writing it out. So we will look at some examples later, but just keep in mind that a goods and services description is basically a TLDR of what the thing does. It’s just written out in a fancy way. That’s all it is.

And the third possibility of finding important information about surveillance technology in a trademark application is held in what’s called a specimen. After you file your trademark application, if it’s in use, you have to include a specimen that shows how the mark is being used.

And that includes photographs of a product, that includes the interface of a computer software system, that includes marketing materials, in some cases, that includes a really sensitive information, developer guides as we’ll learn later. And those are all ways to show how the mark is used in commerce. And this is probably the most fruitful way to find out about surveillance technology, because it is often the most revealing and it’s the most straightforward.

What does a trademark application look like?

Now I just gave you a lot of information. We’re going to go through it and it’s going to be easier to understand and practice. But I want to come back briefly to Amazon Ring and show you what it looks like to find out what that goods and services description looked like that revealed, to me at least, that I thought it was going to be used for law enforcement down the line.

So this is a screenshot of the Trademark Electronic Search System, our buddy TESS. And I just searched for the term surveillance in the field goods and services.

This is what a trademark application looks like. I’m going to move. Can you see my mouse on the screen? Great.

So this is in class nine, class nine, which is for computer hardware and software. So there’s international classes that essentially categorize the different ways in which the products are explained. And one of those is saying that this is hardware software, which makes perfect sense. It’s a little bit of both. But I highlighted the part that stood out to me, saying that this is an electronic surveillance device that can be deployed to gather evidence or intelligence.

When you’re talking about a smart commercial doorbell, that’s just generally not how you describe your product in my opinion. I’m not an expert. I’ve never written the goods and services for a commercial doorbell, but I don’t think that if it was just going to be a commercial doorbell, I would describe it with the language evidence or intelligence.

To me as a lawyer those are lawyer words that signaled lawyer things and they specifically signal a particular type of law enforcement surveillance. Because who are the kinds of people that gather evidence? Law enforcement. I mean, other people too, but we’re not all in the law homes.

So in the paper that I wrote, that I accompanied this theory of how we can use trademarks for surveillance transparency, I explored three pretty significant surveillance technologies.

The first is PredPol, which is a predictive policing algorithm. The second is Stingray devices, which are used to intercept cell service, and they’re often used at protests. And the third is Vigilant Solutions, which was used for automated license plate readers.

However, I’m not going to bore you with all three of them. If you want to go read an academic paper about this theory, please be my guest, but we will be adapting it into a more TLDR friendly format as well.

What is PredPol?

I’m going to start with PredPol though, because this is probably the best example from the paper that shows the power of the Trademark Electronic Search System for checks or surveillance transparency.

So dozens of cities had secretly experimented with predictive policing software and public record requests were used to verify some of those departments. So this is a case of working in tandem with freedom of information laws in order to amplify the impact of the surveillance revelations.

So if we go back to TESS, this is the interface for PredPol. You see class nine again, which makes perfect sense. Class nine is very commonly used for surveillance technologies because again, that Is hardware and software.

Class 42 is another class that is commonly used, it’s related to computer and scientific instruments or services. And so you will see those two coming up again and again in your searches. And you may even want to explore within those classes for particular terms to keep a really broad approach to your investigation of these surveillance technologies.

But this doesn’t really tell us anything we didn’t already know, because we did know that PredPol existed. This isn’t like Amazon Ring, where we could have had a headstart on this technology.

So what is so revealing about the PredPol application? Well, I told you that there was a specimen file, that there has to be a specimen filed in connection with the trademark application, either when the mark goes into use, and you can see that there was a statement of use on the same day and they submitted something kind of interesting for their specimen.

This is the third page of their specimen. They decided to share an actual contract with a jurisdiction that had not been publicly disclosed yet. And we know that because that hadn’t been one of the jurisdictions that came up in other journalists searches for municipalities that were using PredPol. That was Red Richmond, California.

And there’s some pretty interesting information in here, how much money it costs and the fact that they’re getting a discount, or in part G that there will be engaged in joint marketing, including but not limited to press conferences and media relations, training materials, marketing, trade shows, et cetera.

And my favorite part, for example, if a chief is required to attend and speak at a conference of police chiefs, to which they are not already traveling, PredPol agrees to reimburse the city for travel expenses if requested.

They also included somebody’s real cell phone number, which I redacted because I’m sure this guy doesn’t know that this is in the trademark filings, but I’m sure he would not be thrilled to find out that his employer included it.

But this is the kind of information that these companies accidentally reveal. I’m not a sports person, let’s be honest this is absolutely an own goal. This did not have to happen. It could have uploaded a ton of different stuff, but they happened to upload this contracts. And it’s particularly rich because well, those joint marketing efforts didn’t work out, because the Richmond police chief said that they were going to discontinue predictive policing software use midway through their term.

So we’ll do I think, are we going to do questions and comments Kendra? Or do we want to…

So we’ll do questions and comments, and I hope that that was enough to give you a little taste of what we’re going to explore today before we turn it over for… I’ll do one live demo, and then we’ll let you go wild and figure out what you can find.

Kendra Albert: Awesome. People should feel free to like unmute and ask questions if they’re comfortable being on the recording, or feel free to either throw them in chat or just message me directly and I will happily read them. But questions, comments, reactions before we sort of dive in.

Amanda Levendowski: We can also just dive. Do you want to dive? Thumbs up if we want to dive? Okay. So let me stop sharing and I’ll show you a live demo to give you a sense of what this will look like.

Kendra Albert: And I think we can keep recording through the live demo and then stop after. Does that sound okay to you, Amanda?

Amanda Levendowski: That sounds good to me.

Kendra Albert: Perfect.

What does the Trademark Electronic Search System (TESS) look like?

Amanda Levendowski: This is what a standard search on the Trademark Electronic Search System, our buddy TESS looks like. We will drop a link in the chat to the US PTO website. So you can go there and go straight to TESS yourself and have it open on your computer. But here is the place to start.

So this is a regular search, this is your basic search. And you can put in the term Amazon Recognition, which is Amazon’s commercial enterprise facial recognition software, which is used by a number of organizations in ways that could identify as sex workers.

So you clicked submit query, just kidding.

Kendra Albert: The problem with live demos always.

Amanda Levendowski: I just did that to make everyone feel great if they had troubles later. This was just normalizing those mistakes and just keeping it iterative. So you submit query.

So this is what an actual page looks like that’s not cropped or a filing like this. It has goods and services descriptions of what Amazon Recognition is, image analysis and identification, animal recognition. We know that that’s not really the concern that we have, it’s the face recognition in particular.

But this gives you a sense in class nine, as we previously discussed, class 42, and it has the holy triumvirate of classes likely to disclose surveillance technology, class 35. And those are again, just ways to chunk out how these brands are describing themselves.

What kinds of categories of goods and services they are associating themselves with. And so they’re telling us through classes nine, 35 and 42, that is as hardware and software, computer and scientific services and entertainment business services, that’s class 35 that are going to be relevant.

So you can continue that information as you go through your searches. And we will remind you of that as well. So now we’re going to leave TESS and go to another service, but you don’t need to know the name of it. It’s called TSDR, that’s the TLDR for the TSDR.

We’re going to wait for that to load.

So now we’re in TSDR and you can look at a lot of that information in just a different way. So what you’ll do is you’ll navigate to the documents tab and you’ll navigate to the specimen, because that’s going to be where you’d find the beefy information. And one of the things Amazon uploaded is the developer guide for Amazon Recognition and they uploaded the entire thing.

So it is completely possible that they could find… Gabrielle was like, “Oh shit.” And it’s terribly true. This is a huge question about whether or not this is something they meant to disclose.

I’m sure it does adequately show the Amazon Recognition mark in association with the relevant goods and services, but did they need to disclose the developer guide in order to get that? No, they did not.

This is another own goal, this didn’t have to happen, but it’s for our benefit that it did. However, now that we’ve done the live demo, you can see the basics of navigating the Trademark Electronic Search System.

This is the kind of thing that you can all go and discover for yourselves. And so maybe we can offer questions again, and then if there are no questions, we will go into breakouts and people can explore the system.

Where do you get started with trademark transparency?

Kendra Albert: So there are two great questions from chat. One is, “What do you do if you don’t even know the name of a thing or what to start even looking for?” So I’ll start with that one.

Amanda Levendowski: That is such a good question. Where to begin when we don’t know what the brand name is. We begin with goods and services, because as you recall, I did not find out about Amazon Ring because I searched for creepy Amazon stuff. Although, could I? Yes.

I did it because I searched for just surveillance in the goods and services. And there are lots of goods and services that may be relevant. I did do some work earlier to see what kinds of goods and services were relevant potentially specifically related to sex workers.

You will be interested to find, I don’t know, maybe you won’t be, but I was interested to find that there happened to be only three trademark applications or registration that used the phrase sex workers.

One is for a denim company, and I have some questions about that. And then one is for a charity and then one of them I already forgot. But they’re not anything related to surveillance.

There is a specific place where you can look for particular phrasings of goods and services descriptions. Are they official phrasings of the US PTO? Basically it’s called the trademark manual of examining procedure. That’s one place where you may find examples.

There’s also the trademark ID manual, which I think I have up, yes. The trademark ID manual, you can also look and see, this is in the Google doc. You can look and see for particular phrases or particular words that might be relevant that have been pre-approved by the US PTO and they are likely to be more commonly used as goods and services descriptions because they’re pre-approved, and that means it’s easier for an examiner to look at them and say, “This makes sense. I’m good to go.”

So you can experiment with this tool as well to come up with goods and services descriptions related to surveillance of a whole variety of communities, individuals, but you may also want to focus on the technology because some of the most dangerous technologies for marginalized communities are face recognition technologies. Those can be particularly invasive, particularly damaging and particularly dangerous.

So looking at face recognition technologies by commercial companies may be another way to find out about the technology without knowing its name. So goods and services is the ticket when we’re talking about finding out about things when we don’t know the name.

Kendra Albert: Okay. Amanda, could I ask you to do me a favor and just do a very brief, the same thing demo, where you searched for goods and services.

Amanda Levendowski: I guess.

Kendra Albert: We can even give you a phrase if you want.

Amanda Levendowski: Oh, I was going to do the only one that came up earlier related to… Well, give me a phrase.

Kendra Albert: Fraud prevention. Ooh.

Amanda Levendowski: Interesting.

Kendra Albert: Fraud prevention, yes.

Amanda Levendowski: So the ones that are crossed out means they’re no longer valid, but that doesn’t mean that the goods and services description they were used for initially that product doesn’t still exist. But forensic analysis of surveillance video for fraud and threat prevention purposes, that’s one. Check marking machines on preventing fraud, and let me just even take this to another level.

We can go back to TESS, and we can go to a structured search. Now we’re elevating, we’re taking it to the next level. Okay, we’re ready for it. Fraud and threat prevention purposes, that’s a phrase from the verbatim one, you change it to goods and services, and then you submit the query.

These are all the technologies that have been registered at the US PTO that use that phrasing in their product. So you may have some false positives that happens occasionally, I did put it in quotes so it should be exact. What you can do is start here and go through these and see if any of them are relevant.

So for example, Stealth Monitoring for some reason it seems like it might be promising. Here you go. They do the forensic analysis of surveillance video for fraud and theft prevention purposes.

So now we know this is a company, Stealth Monitoring, it’s based in Texas, and we actually know a good amount about it. We know a lot about what they say, what they do. Let’s go to TSDR.

I know we’re all waiting with bated breath.

Kendra Albert: I am, I stopped breathing a while ago. I’m very excited.

Amanda Levendowski: What is the specimen going to be? Is it going to be weird? Who knows? Okay. So this is actually a pretty standard specimen, although it could potentially reveal sensitive information.

I haven’t looked through all five pages, as you all know, this isn’t a magic trick. I didn’t like know in advance that Kendra was going to give this one to me.

But this looks like a pretty standard printout of marketing materials that show the Stealth Monitoring mark used in commerce with those goods and services related to forensic analysis of footage from video surveillance to look for fraud and theft.

So that’s how you could reverse engineer finding out about a company or finding out about a product when you’re just operating from using the goods and services.

Kendra Albert: Great. So there are two more questions.

Amanda Levendowski: Great.

Can you search by trademark class or groups of classes?

Kendra Albert: “Can you search by class or groups of classes?”

Amanda Levendowski: You cannot search by groups of classes because the US PTO is pretty old school, but you can search by class and you can also search by goods and services within the class.

As I showed you with the structured search, that next level searching mechanism, you can search by one line being the class, just remember that you have to put two zeros before a one digit number, I don’t know why, but otherwise it won’t work. Two zeros and then class nine and you can search for it.

And then the other thing is you can also search for the goods and services descriptions in that class. So you can search with an and joinder and you will have a more specific search than if you’re just searching in one.

So you could literally just go through and search for all of the surveillance marks in class nine and 42, if that’s what you wanted to do, however, they would have to be two separate searches because you can’t search multiple classes.

What would stop someone from creating a trademark scraper for a particular good and service?

Kendra Albert: And then one last fantastic question, “What would stop someone from creating a scraper that grabbed all of the marks with a particular good and service?”

Amanda Levendowski: Nothing. And indeed, I’m delighted to tell you, thanks for teeing that up, a student at Georgetown and I, Dylan Brown Bramble have actually developed a tool called Trademark Watcher that does exactly that.

It essentially monitors for surveillance related marks that show up on the US PTO’s registered and we’ll send eventually either a tweet or an email digest, we’re still experimenting with what we’re going to do with it. And it will basically give you an update about here’s what’s new in surveillance tech.

So the US PTO’s website is very scrapable is it turns out and we’ve tried to do it so that it would go off late at night and it wouldn’t interrupt any services because there’s another law that we’re not getting into that could potentially be an issue.

So the goal is to basically make this process easier. I think it’s great for everyone who’s in this workshop to learn how to do this for yourself, so that you can experiment and find things that the bot may miss.

But if you’re looking for a new technique to have in your repertoire to keep an eye on surveillance technologies coming down the pipe, this could be a really powerful tool. And also anyone could create a competing or other tool, a complimentary tool.

It’s hard. I didn’t do it Dylan Brown Bramble coded it, but it’s doable. So you could also do this for yourself if you were curious in particular technologies.

Kendra Albert: I swear I actually did not tee that up in advance. That was an actual question from the actual chat. So before we stop recording and we send everyone into sort of doing this for yourself, any last questions? We’ll obviously provide materials related to all of this. So there’s plenty more coming. But any last questions before we stop?

Amanda Levendowski: Okay.

Kendra Albert: Awesome. All right.

Movement Lawyering: Challenging Narratives Around Online Laws Pertaining to Sex Work

Movement Lawyering: Challenging Narratives Around Online Laws Pertaining to Sex Work. The Office of Clinical and Pro Bono Programs, The Cyberlaw clinic and Berkman Klein Center at Harvard University. July, 2020.

(add video and transcript)

What is Movement Lawyering?

Mason: Thank you all for coming. Welcome to day two of our two day series
on Movement Lawyering. Very excited today to have two incredible speakers with us.
First, we have Danielle Blunt who is a professional New York City based Dominatrix, the and Sex Worker Rights Advocate. She has her master’s in public health and researches the intersection of sex work and equitable access to tech. Blunt is one of the co-founders of Hacking//Hustling, a collective of sex workers and accomplices working at the intersection of technology and social justice formed in response to SESTA-FOSTA. Blunt is on the advisory board of Berkman Klein’s initiative for a representative first amendment,
and she enjoys redistributing money from institutions, watching her community thrive, and making men cry.

We also have Kendra Albert, who is a clinical instructor at the Cyberlaw Clinic where they teach students to practice technology law. They hold a degree from Harvard Law School
and serve on the Board of the ACLU of Massachusetts. They enjoy redistributing money from institutions, working on their solidarity practice, and making people in power uncomfortable.

So two amazing speakers. And I’m going to turn it over to Kendra to begin the first part of our discussion

Kendra Albert: Awesome. Thank you, Mason. I’m super excited to be here and be in conversation with Blunt. Building off of Asana and Yumina’s fantastic introduction to movement lawyering yesterday. Blunt and I talked about this a little bit in advance. I think what we’re kind of hoping to talk about is sort of realistically how conversations around movement lawyering style relationships might work in practice. And I’m using the example of some of our work together.

I figured we kind of start with what, I guess, I’ve been jokingly calling our organizing meet Q, which was how Blunt and I became connected and started working together. And then talk a little bit about how we think about our work and some of the stuff that we’ve done together and how that fits into the movement lawyering frame, and how there maybe other frameworks to think about it, and then what lessons we might be able to learn from some of our work together that we’re taking into the future and then maybe helpful to use. That’s my plan. Blunt, anything you want to add to that?

Blunt: No, I’m really excited to chat about this and for the opportunity to reflect this, because from my perspective, it wasn’t so much as an intentionality of seeking out movement lawyers so much as screaming into the void and Kendra responded.

Kendra Albert: Do you want to talk a little bit about that?

What role does social media play in movement work?

Blunt: Yeah. I retweeted it yesterday, but I… Hacking//Hustling was formed in response to SESTA-FOSTA. Melissa Gira Grant and I, and some other comrades put on some immediate harm reduction programming with Eyebeam. Eyebeam is an art and tech organization in Brooklyn that funds some pretty awesome work. They had recently done a panel series on women in tech, and sex work was left out of the conversation, so we invited them to continue the conversation. This was in our programming there, which then turned into the organization that Hacking//Hustling is.

While we were organizing against FOSTA-SESTA, we were met with this sort of deafening silence from the tech community, from tech lawyers, from just about everyone other than sex workers and very few allies. I was researching content moderation and doing as much research as I could because people who I expected to be having these conversations weren’t. I was reading custodians of the internet and saw that Tarleton was giving a talk at, I think, Berkman Klein. And Kendra just happened to be moderating that conversation.

I raised my hand on Twitter and tweeted. I didn’t even tweet at you. It’s just something we were discussing. But I tweeted at Berkman Klein and Tarleton asking about how you can write a book on content moderation and have a whole chapter on section 2-30 and not ever mentioned FOSTA-SESTA. Kendra, do you want to sort of talk a little bit about what your response was?

Kendra Albert: Yeah, sure. I think I asked the question to Tarleton at the session. A little bit of backstory prior to where sort of that moment was that sex worker rights issues were something I’d been sort of paying attention to kind of in the background for a while. I’d read Melissa Gira Grant, Playing the Whore, which is an excellent book for folks who haven’t read it. And sort of have been roughly following some of the aftermath of FOSTA-SESTA and the things that had happened with the organizing before. Mostly, I think through the lens of EFF sort of talking about sex workers and working with sex workers a little bit in their organizing against FOSTA-SESTA. It came time to ask that question, and so I asked the question and I don’t really remember what Tarleton’s response was.

But then afterwards I sort of reached out to Blunt on Twitter and found the thread and was like, “Hey, I hope I asked it okay. I didn’t see you.” There was a longer bit that Blunt had screen-shoted

Blunt: It was very verbose.

Kendra Albert: Yeah. And I don’t think I asked quite that. I think I just literally was like, “So what about FOSTA-SESTA?” Right? But happy to talk more. And so then we ended up, I think, having a phone call where I got to hear more about what Hacking//Hustling had been doing. And I actually had tried to tune into the Ibeam event, but I hadn’t been quite able to hear it.

We started talking about what next steps look liked or felt like for Hacking//Hustling and how maybe I could be useful. And I think one thing to note about those initial conversations is I think I was very much approaching them from a lawyer frame. Not necessarily that I would take Hacking//Hustling on as a client, but my expertise is as a lawyer. What I’m bringing to this is my ability to interpret FOSTA-SESTA. Or my ability to sort of do legal reasoning or whatever. And that wasn’t exactly what you were looking for from me. Can you tell me more, tell us more about that?

Blunt: Sure. Yeah. We’ve been just sort of very frustrated in trying to get a response. And I also want to note that your initial response to me made me very excited to pursue working together, having conversations together, because your response was something like, “Yes, this is really exciting for me. I’ve been really interested in thinking about FOSTA-SESTA but didn’t want to do that without input from sex workers.” And I was like, “Great. Like an ally. Great, amazing.”

And so we sort of took it from there. I think we had a phone conversation and then you invited myself and a few other sex workers to Berkman Klein to have a conversation. And what I also remember about that conversation is that it was a group of folks who have access to those institutional spaces who benefit from the privileges of being employed by, or going to Harvard, sitting in a room listening to three sex workers sort of scream about how horrible this legislation was and what our fears were and what we were experiencing in community.

Reflecting on that, it very much was in alignment with the work that Hacking//Hustling had been doing, where people who have power in institutions give that power to, are being put in a situation where they first have to listen to the communities who are impacted and who they’re purporting to serve.

That meeting to me followed the same sort of way that we planned our initial programming at Hacking//Hustling at Eyebeam, which was the first day was a panel of sex workers talking about their experiences with navigating online spaces, losing access to these online spaces. And then it wasfollowed up by a day of… We actually found T for Tech, a trans led organization providing harm reduction materials who also had sex working teachers to give the harm reduction, digital security trainings, which was actually very cool. Yeah. It was really amazing that our first time… My first time entering the Berkman Klein space was people were really interested in listening before moving into brainstorming solutions.

Kendra Albert: Yeah. And I think one thing to flag there is we also did sort of think about what were the next steps and brainstorm solutions. And there were a couple of different things that came out of even that meeting. I think there were sort of a harm reduction seen on understanding financial systems and how platforms track you, with an eye towards reducing the chances that folks weren’t getting their financial accounts shut down, because that’s something that happens, for folks who aren’t aware, to sex workers all the time. And then also we drafted, actually with the clinics, some clinic students, models that are sent to a platform that sort of deleted your account because there was sexual content on it.

Not that that held any particular legal weight. There’s no legal claim you can bring. But just in terms of having access to a draft or a template letter that’s in lawyer language, that was something we worked on. What I remember about that first meeting is I was really nervous because I was really worried that it wasn’t going to be useful or whatever. And that I went and bought very fancy donuts because-

Blunt: I remember the donuts.

Kendra Albert: I wanted to suggest that y’all were worthy of very fancy donuts, and that my colleagues in the clinic, including Nathan and Adam Nagy and many other wonderful folks helped me carry all the coffee equipment upstairs because I felt very strongly that it should be hospitable. I don’t know. My relationship to my Judaism is questionable at best, but the Jewish mother instinct that like, “I will make sure you get the appropriate fancy food.” Is strong, right?

Kendra Albert: So yeah. And then I think one of the things that we worked on from there actually was something that came to fruition yesterday, which was, as I started prepping for this conversation, because one of the things I also wanted to do was talk a little bit about the legal context of FOSTA, again, because that’s where I kind of felt comfortable. I sort of realized that nobody had really written a ton on it, and it wasn’t really clear what it did.

I sort of did some analysis, but was also like, “This is vastly incomplete.” And we ended up, along with Hacking//Hustling comrade, Lorelei Lee, sort of working with the Cornell Gender Justice clinic to sort of produce this very long form guide. Every time we thought we were done, it grew three sizes, so it’s 87 pages. It’s on [SSRM 00:12:05]. I tweeted it yesterday.

In some ways, it’s not a great example of movement lawyering because it’s not really community. But on the other hand, it is in response to a need that we sort of identified together, which was the lack of ability to really understand what FOSTA was doing and to be able to point people to things.

Blunt: I also want to backtrack just a little bit about framing that as an act of movement lawyering, because it was addressing the needs of the community, I think better preparing other lawyers to have the conversation. It was impossible to find a lawyer after FOSTA-SESTA was signed into law to give a “know your rights” training, because no one knew what the law did or no one understood the law. I think that that did meet a need, as well as while… What I think you’re not giving yourself credit for there is, what we also did was we provided a brief, a little card that could be handed out to street-based workers who were interested in knowing what FOSTA-SESTA was. There was also educational components.

Kendra Albert:That’s fair. Yeah. I do think, in some ways, it was the analysis we needed to do a lot of the community- based work, even if it isn’t directly accessible to community. And I think that’s fair. I’m wondering if we want to talk a little bit about the event, the bigger event that we did and that process, and then maybe we can sort of migrate towards talking a little bit about how we think about movement lawyering as a term or to describe what we’re talking about, or other lessons we’ve learned.

Blunt: Yeah. Something that Hacking//Hustling is interested in is moving these conversations about how sex workers utilize technology and the ways that sex workers are harmed by the same technologies that they need to use to survive and stay in touch with community, make money, and to organize, and to fight legislation like FOSTA-SESTA, and to fight legislation like EARN II. We want to be these conversations primarily by and for community, but something that is also very important to me into the work that Hacking//Hustling does, is that these conversations are also being had at spaces who have institutional power.

Blunt: And I think that people who their MO is already operating within those spaces of institutional power, often overlook how much can come from attaching movement work to a name. There are definitely pros and cons to this, but if my organization collaborates with Berkman Klein or has Berkman Klein’s name on something, which we’ll talk more about later, that then allows the work that we’ve been doing to be seen as the Academy, as worthy of putting two years of resources to you and then collaborating with Cornell to create the legal document that we needed and served a need of the community

Kendra Albert: I note that Tim in the Q&A has been like, “Kendra said they talk about how they screwed up, and I haven’t heard about that yet.” This is perfect. I’m so glad you asked that, Tim, because actually what Blunt just said about not understanding how powerful these institutions are is like conveners and legitimizers of work was something I didn’t understand before I started working with Blunt.

I think when I started working with Blunt, I didn’t really understand why Hacking//Hustling was really so invested in throwing an event at Harvard. And this actually led to a really interesting news communication, which I’m going to talk about for a second, which was I felt really… Even before I started working with Blunt super formerly, I felt strongly about making sure folks got paid. And I feel way more strongly about that now as anyone who is working with me knows, or has worked with me knows.

Kendra Albert: I ran into a lot of barriers around getting Hacking//Hustling folks paid when we were trying to put on an event at Harvard. And it made me really uncomfortable because I felt weird going to Blunt and saying, “I can’t pay you.” Because I understand how important getting money for this kind of work is.

I think basically what I did was stop responding to email for three weeks, out of shame. Finally, I think we finally got on the phone and I was like, “Look, I’ve tried and I just don’t know how to pay you.” Like, “I cannot pay you what this work is worth. Do you want to cancel?” Blunt, do you want to talk about what you said?

Blunt: Yeah. I was trying to parse that because I was like, “Canceling wasn’t on my mind.” First of all, we do this shit for free all the fucking time, and that’s fucked up. But also I want to call out that for the first year, Hacking//Hustling was 100% funded through our main organizers direct labor in the sex trades and through a client donation that went through a 501(c)(3). I frame sort of all of my work as hustling, so when we’re having this conversation about movement lawyering, I’m like, “Oh, like hustling academic institutions to shift their power? I can talk about that.” Since we had that client donation, Hacking//Hustling was able to then… Which we had done with Eyebeam as well, is Eyebeam was able to find X amount of money and where we felt people should be paid more for their labor, we were able to fill in the rest, which is sort of what we also did with the event that we put on with Berkman Klein.

But it wasn’t just the access to the financial resources that Harvard has, which they do have, it was just very difficult to find them for this purpose. We were able to pay people through the work that our main organizers were doing in the sex trades, and we pay people fairly well. I was like, “Don’t worry. We hustle in other spaces too. We’ve got this covered.”

Having this event take place at Harvard is something that would get press coverage in a way that it wouldn’t normally, is something that will bring these ideas and this community’s expertise to people who don’t normally have access to that. There were a few things that came from that. I don’t know if you want to talk about a little bit of the internal process of organizing that and the work with Whose Corner and what came from it.

Kendra Albert: Yeah. I think that through that event, I got introduced to the folks at Whose Corner, anyway, which is a sex worker focused, street sex workers, homeless and drug user focused mutual aid org out in Western Mass. There are some of the stuff where they needed not necessarily legal advice, but sort of counseling that had to do with law stuff.

I ended up working with them on that. And then it turned out that they had this need where what they were looking for was record ceiling for a number of their members who had prior felonies or misdemeanors on their records. And that was the thing where actually I think… This is the point at which I feel I maybe crossed the threshold into movement lawyer, where I was like, “Oh, I could learn how to do that. I can find somebody to do that.” Not that that can’t be that hard because yeah, it’s hard work and it’s real, but the fact that this is not my core area of expertise and the work that I studied in law school, doesn’t mean that that need is not real and it’s not important to folks I’m in community with. If the need is real and the work is important to folks I’m in community with and it’s in my capacity, then that’s a thing that I should be doing.

That project actually got put on hold because of the pandemic, but we were working with them to figure out everything from where can we get a photocopier? When we’re in Holyoke Mass, notarizing all this paperwork, right? That was the thing. And I think that that felt really good because this is a community… Whose Corner Is It Anyway is an amazing group of folks doing really, really fantastic work. I got to know them because Blunt and Red, who organized the Hacking//Hustling event on Thursday, Blunt is probably about to hustle by putting their link in the chat and I’m here for it, said, “We don’t want this to just be sex workers who work primarily online in terms of who has access to the space. And we want to hear different sets of concerns, different folks, different views on sex work and surveillance.” They knew the Whose Corner folks, and Whose Corner folks were able to come because they were paid through the acts of Hacking//Hustling. I think that’s super important.

Blunt: Yeah. I was going to say, and also, I think with the work of Hacking//Hustling is also sort of… It’s bridging gaps between communities and institution, bridging gaps between who is funded for their labor and who is not. Who is speaking on behalf of themselves and who’s speaking… I think there’s a very big difference between inviting me to have this conversation with you, Kendra, or you then telling this as a story, as if I’m not a person who is also involved in this work.

We thought that it was incredibly important to also have the perspective of our incarcerated comrades and had my comrade Red called up Alicia Walker, who I’ll also drop the GoFundMe in the link in a second, who is an incarcerated survivor of gender-based violence, who’s currently locked up in Chicago in the middle of a pandemic. But she was able to call in, and I think that was the most moving part of the conference that we put on. For me, it was hearing the process that Red goes through to… I feel a lot of people just maybe haven’t called folks who are incarcerated. And hearing that process, or not knowing if we would actually be able to get in touch with Lily to hear what she wanted to say and what she wanted to share with folks. And I think that that was my favorite part. And I think broadening the conception of what is technology and how does technology affect and impact people was also a very important part of that project.

Kendra Albert:Yeah. Do we want to talk a little bit about movement lawyering as hustling, which Blunt came up before this call and I love it. I’m going to let her talk about it for a little, and then I can talk about my sort of relation to you and reaction to it.

Blunt:Yeah. When you asked me to have a conversation with you about movement lawyering, I was like, “I don’t know anything about movement lawyering.” I also think that this conversation is interesting because it’s bringing to light a lot of work that we were both doing internally. I didn’t know some of the fears or hesitations that maybe you had that you’re talking about now. Like I said in the beginning, it wasn’t my intention to put on this programming at Harvard when I reached out to you. I was literally screaming into a void. You were one of the only people who responded in a way that made me feel comfortable with engaging with you.

I thought of all of my work as an act of hustling, whether or not it’s directly with my labor in the sex trades. All of my work is currently funded by my direct labor in the sex trades. And this was somethingthat I believe it was… Yumina mentioned on the last call that her work is largely funded through the corporate law that she does. And I’m like, “Oh, I know something about that.” I know something about finding alternate ways of funding work that is traditionally unpaid. And so much of sex worker organizing is unpaid.

My work comes out of a space of harm reduction care coordination, which I frame as hustling fucked up systems that were never meant to make work in the first place for beautiful people that I care deeply about. And trying to bridge that gap of service for sex working people who are trying to access healthcare. And so when it moved into more of a space of tech, I saw gap that needed to be bridged as these spaces with institutional support and power. And so I just truly think of movement lawyering as how can I hustle lawyers and people with access to institutional power to have the conversations that I want them to be having and encourage them to do that.

I just want to note that frame of how you serve, how you get these institutions that were never meant to take care of folks, to take care of folks better, is one that I really love and I think is really beautiful. And I think it also speaks to things that I think about in my work. And I think that’s a point of commonality between us.

Kendra Albert:

Yeah. I think I often make this joke that Blunt taught me how to hustle, and it’s totally true. I know that there are some folks on this call who have benefited from my advice about how to get paid, I don’t know where you are in the [crosstalk 00:27:51]-

I love teaching people how to hustle.

Kendra Albert:

Institutions often make us feel we should be grateful for whatever we get. What I’ve learned from working with Blunt is just like, “No, ask for more.” Right? Often our relationship to asking and sort of pushing is that a lot of us who have had access to these spaces are afraid because maybe our access will get taken away or maybe someone will get annoyed at us. For me, I think what I’ve learned in some of our work together is that pales in comparison to the harms that our people are experiencing. And that the people I care about and who I am in community with are experiencing. And so it’s my fucking job to be able to be like, “Okay, does this make you a little bit uncomfortable when I ask for this thing? I’m sorry.” But actually the people who need it, need it.

I don’t think I had that frame or that understanding before I started doing work in community, because I think that it’s really easy, especially as a lawyer, where you’re kind of role constrained. The whole point of certain forms of lawyering is to sort of put a barrier between you and the client, to separate you from the client in terms of their emotional needs or their material needs. I think Massachusetts maybe just allowed for lawyers to occasionally pay for food for their clients. I have friends who are public defenders and often they can’t actually pay for a sandwich for their client who’s really hungry because that’s a violation of the ethical rules.

That kind of relationality is such a big part of actually working together rather than sort of standing up and telling the trauma story in order to serve some greater political point. And I also think, for me, the other thing I’ll say about it is it’s really changed the way I think about scholarship.

I don’t produce a lot of traditional legal scholarship. It’s just not really my bag. And I think part of that is because obviously I have opinions, and plenty of opinions, on how things should be. But in some ways, many of the subjects I’m most expert on, I’m most interested in doing work for clients or sort of community work because what I think about what should happen, doesn’t feel that meaningful. Right?

I was talking to a staffer, legislative staffer, for a Senator about 2-30 reform. They were like, “What do you think?” And I’m like, “I don’t know how to answer that question.” What I said was the Hacking//Hustling party line from our last press release of like, “Here are the five things that we’re thinking about.” Right? Because Blunt taught me how to hustle, I’m not that much of an idiot.

The relationship of academics and of lawyers of this idea of our personal beliefs are what should inform our work rather than like, “Oh, actually, what are the community of folks that I work with? What I need out of this moment from me.”


Yeah. I’m thinking back to a lot of when there was just infinite programming and infinite bills about 2-30. No one was talking about the communities that would be impacted about it. Everyone was talking about platform liability. And I’m like, “People are literally dying because of this legislation. They need to be at the front and the center of these conversations and not added on as an afterthought.”

If the work isn’t centering the people who are literally feeling it. Platforms are not people, people are people, and we need to listen to humans who are impacted by these policies. And I think there’s this difference. I’m thinking of it of like movement lawyering versus savior fetishism, and how different those power dynamics need to be so that you’re not causing harm by telling someone’s story as if it’s your own, that you as a lawyer then don’t own that story and then build a brand around that.

Kendra Albert:

Yeah. Part of it is also, I think, something Asana said yesterday about who’s the expert, right? Now, having worked with Hacking//Hustling and Blunt for a while, I’m not an expert very much of the stuff we talk about. Yeah, I maybe know more about 2-30 than some of the other folks we talk to, or that are in our conversations, but I, even as a lawyer or as a lawyer have so much to learn about movement work, about organizing, about sex workers, about folks lives and where they’re at and how I can be helpful. I think that’s really humbling, but also I think as someone who likes to learn new things, it’s really just Even since we’ve been in the pandemic, there’s now a group chat that at times has been very active.

And just feeling close to and in community with folks in terms of being like, “Okay, this is who I talk to everyday.” And I think at this point often talk every day. Just thinking about it, Lisa is like, “Oh, this is my movement lawyering work.” And we’re like, “Oh, this is who I talk to, who I work with, who hears me, who watches me drink too much Rose on Zoom and then not finish the book club book, that kind of thing. There’s another thing I screwed up, Tim. I didn’t finish the book club book. To be fair, nobody else did it.

Anyway. Before we sort of open up for questions, because we’re sort of nearing, we’re a little more than halfway through, anything else you want to add? I know we talked a little bit about your view about sort of institution…

Blunt: Yeah, I think one thing that we talk a lot about, and that I think that this conversation help facilitate is that a lawyer who is doing movement work doesn’t necessarily represent the institution that they work for or the beliefs of that institution. I remember having a conversation with you about how important it felt to have a Harvard affiliation of some of the programming that Hacking//Hustling has done. And how that will literally help us get grants to fund the unpaid labor that we’re doing. And you were like, “That happened because I put…” The internal work that a movement lawyer is doing within their institution doesn’t reflect the values or the principles of that institution necessarily.

Berkman Klein or Harvard might be happy to have me on this panel or have Kendra pushed to have this really radical conference and give us space and a little bit of money, but I, as an actively sex working woman, who’s naked on the internet, not going to get a fellowship from Berkman Klein or from other institutions like that. And I think that that’s something that’s become really… Frankie is mad. That’s something that has become more and more apparent to me of what are the ways that my privilege allows me to move in and out of these academic spaces, and how can I create a bridge for other folks to come with me? And then what are the barriers that I may be blind to because of my ability to sort of move through those spaces that actually hinder me from moving forward.

Blunt: What I’m also interested in, or talking about is like Kendra is awesome and a great accomplice, and is consistently inviting me into those spaces in a way that allows me to have these conversations publicly, but also gives me more options in the work that I do and the choices that I make and will ideally, hopefully, eventually end in funding. I can’t overlook that enough of what it looks to be invited into a space which is valuing my expertise and my experience as well as providing me with opportunities to move further into those spaces without that person.

Kendra Albert: Yeah. I think that’s so important because I think that what you don’t want is the movement lawyer to always end up as the gatekeeper who is like, “Oh, you only get access to these spaces through me.” That’s a really shitty dynamic. I will have succeeded when Hacking//Hustling throws a conference at an Ivy league institution and I have literally nothing to do with it. And actually I will have succeeded when we’ve abolished prisons and sex work is decriminalized and lots of other stuff. But in terms of short term movement goals.

Kendra Albert: But yeah. I see Asana threw a question in our chat. I’m going to take that first. And then if they have questions for either of us in the Q&A, we would really love to hear them. Or just topics you’d like us to talk more about. That also works.

Kendra Albert: Someone asks if we could discuss the notion of recruiting and creating more movement lawyers and how you’ve been successful/unsuccessful in doing it.

It’s up with a hard question because I actually don’t think we’ve spent a ton of time. Well, I was going to say and that’s not true. We haven’t necessarily explicitly set it as a goal, but I think I’ve watched Blunt sort of worked with bringing law students into these conversations. I think one tricky thing I will flag and then I’ll let Blunt sort of react as well, is that there are ways in which my positioning at a technology law clinic is really ideal for the work that we’re doing., because that’s consistent often with some of the needs that Hacking//Hustling has in terms of subject matter. But often, folks who go into a technology clinic are not necessarily always the most motivated by social justice or have the background in sex worker issues.

If I worked at a gender justice clinic like the one at Cornell, it might be easier for me to attract students who are really invested in doing work that serve sex workers and sort of ready to do movement lawyering. There are many things I love about my current position, but I definitely don’t feel the majority of students I work with their dream is to become a movement lawyer. Maybe I’m just pushing them a little bit further towards doing public interest work, even if I’m not sort of being like, “Movement lawyering, that’s the paradigm.”

I also think I’m still learning how to do it. There is definitely like, “Oh, you can totally teach while you’re learning things.” But some of the work we do feels really high stakes, and I don’t want to harm people. And I think for me that sometimes I think lets with me to be more cautious about including folks I don’t know super well in it. I’m so grateful for the trust that folks place in me and the conversations that I get to be a part of, and I wouldn’t want to do anything to jeopardize the people who have trusted me in that way.

Blunt: It’s so interesting to me because it’s not like I was intentionally seeking out movement lawyers when Kendra and I began our working relationship. That it wasn’t an intentional process so much as one that evolves, which I think is also a really interesting framework for just being in contact with community, I think is a helpful way to push people and recruit movement lawyers.

I think that the folks, the law students who came to the Hacking//Hustling event that we put on at Harvard, would not have gotten that type of education and heard the expertise of the communities that they may or may not be working with without that.:

The other thing that I think about is also really important is, we’re talking about our relationship of a sex working person and someone who’s working at a tech law clinic. I’m currently shadowbanned online and at constant risk of being de-platformed. And when I think about Kendra and my relationship, I think about, what would have happened if I did not have access to Twitter and I could not have asked that question? It’s something that comes up a lot for me.

I think fighting against bills like the EARN IT Act and fighting against bills like FOSTA-SESTA because not only does it like… These laws have killed people and people have died because of these laws. And they also de-stabilize movement work and de-stabilize our ability to be present online and speak for ourselves. When I think about this, I think it’s all so related to me, of fighting for things that allows me to have the same access to online spaces as my non-sex working peers do, as part of that work. Because if these communities disappear from online, how are you going to get in touch with them? Especially in the middle of the pandemic.

It’s just another layer that invisibilizes and decreases the power of a community when people are banned from these spaces. Yeah, I think it’s just a matter of inviting community in to educate you. And this is also something that I did as my job at Persist Health Project, which serves sex working people in New York state accessing healthcare.

One of my jobs was providing best practice trainings for doctors and med school students. Hacking//Hustling also provides best practice trainings for people in the Academy who are interested in bettering their sex worker competency. Something that came out of that when I was teaching of like taught those classes that all the major New York city teaching hospitals and the med students were like, “This hour and a half is the most that we’ve ever talked about sex in our entire three years of med school so far.” That was a feedback that I found really interesting.

Mason Kortz: Yeah. I was just going to jump in and once again ask, anyone who has questions, please feel free to ask them. First of all, thank you. This has just been really incredible and it’s really inspiring hearing both of you speak every time I interact with you. One question I wanted to dig a little deeper into is, Blunt, you specifically mentioned bringing in different members of the sex working community who have different needs, who are affected in different ways by the same policy changes. And that’s something that as I’ve kind of started to learn about movement lawyering was one of the first things that I really became aware of.

Mason Kortz: Communities that often look or are represented as being monolithic from the outside, once you begin interacting with them, or not, and people have different interests and what may be helpful to one person could be harmful to another. I was just wondering if the two of you could speak a little bit more about navigating that and the experience of making sure that the communities you’re working with are not reduced to those people who have the most access or the most voice.

Blunt: Yeah. The work of Hacking//Hustling is I’m sort of starting to conceptualize it as threefold of tech law policy that affects how we interact with these online spaces, what happens when we lose access to those online spaces, and making sure that we’re providing harm reduction resources for our street working comrades, that we’re also figuring out what the tech needs of folks who are trading sex on the street are, as well as being in touch with our incarcerated comrades.

That’s sort of how I’ve been conceptualizing the work that we’ve been doing. And I’m always interested in also learning more and how to do better and to make sure that I’m not speaking over other people or I’m not providing… The Hacking//Hustling isn’t providing resources to people of what we think people should be learning, but rather what people actually need. And meeting the needs of community by not assuming them.

Kendra Albert: I think that makes a ton of sense. And the thing I want to just add is, Blunt said a lot of nice things about me, which is very kind, but I think one thing that I don’t want to lose track of is how amazing Hacking//Hustling is, and Blunt is specifically, at making sure that we’re not just hearing from the sex workers with the most privilege. One of the terms I learned for the first time at the Hacking//Hustling commuting last November… Oh my God, eternity ago, right? Was the term whorearchy, which was just this idea that within sex work and sex worker, Jason Fields and Blunt, please correct me if I fuck this up. There are inherent hierarchies about how folks interact.

I didn’t know that when I started working with Blunt. To Blunt’s credit, she knew that. She had thought about, how do we bring in different folks? How do we be making sure that Hacking//Hustling isn’t just the folks talking about SESTA-FOSTA online but also serving the needs of street-based sex workers.

I also think how you might show up for folks really does vary based on what their needs are. Obviously. I mean, that sounds obvious when I say it, but just to be very clear. Which is that if Hacking//Hustling might need a bill analysis, that’s something I can do. Some of our street-based comrades might need money. They don’t need legal advice, they just need money so they can pay rent, right?

Blunt: Or a letter from their PO officers so they can come speak at Harvard.

Kendra Albert: Yeah. Being willing to show up in different ways and thinking about… I think if you’d asked me six years ago, I may be like, “Well, maybe I’m a little uncomfortable giving money to these folks I also work with because this is going to reduce me to my money.” And now I’m like, “Oh, I’m sorry.”

Actually, I was being interviewed for something, where it was for a nonprofit. They were like, “We want to be one of the primary places you donate.” And in all seriousness, to this folks of nonprofits, I was like, “Actually, I don’t really give too many nonprofits anymore. Most of my giving is to sex worker mutual aid funds.” They just kind of looked at me and I was like, “Oh, is that not…” And that now just feels like a natural extension of this work, and being in community with folks and showing up for them. And that can mean bill analysis and it can also mean money. That, it feels important to me.

Blunt: I think something that was very interesting about the work that Hacking//Hustling has done is we conduct very casual needs assessments before putting on programming to sort of assess that what we think folks need is accurate. And if it’s not, where do we fill in the gaps? As well as when we were conducting our research on FOSTA-SESTA, which I also want to point out that the only actual research that exists on the impacts of FOSTA-SESTA have been done by sex workers. I think there are two or three reports, one which was done by Hacking//Hustling.

When we did the research on Hacking//Hustling, we distributed it primarily online, so that means that it’s only accessible to folks who have access to the internet. We also partnered with Whose Corner Is It Anyways, the really amazing organization that Kendra was talking about early in Western Mass, to do the survey with their community at one of their meetings.

I learned a lot about that practice because I worked really… We hired and paid Naomi to modify the surveys so that it was both accessible to the community using the language that that community uses. And also we added on 40 questions for them that they were just interested in for grant purposes. We had the questions that were the same so that we would analyze it and then also then just gave them all of the raw data so that they can do whatever the fuck they want with it. That data is theirs to use to hopefully help them get more money and be used for grants.

What’s something that’s so interesting that came out of that is that folks who are working on the street have no fucking idea what FOSTA-SESTA is. What they did say is that they noticed… On their small stroll in Western Mass, they noticed 10 to 15 more street-based workers hanging around and had heard about FOSTA-SESTA from them. I think that it helped contextualize the research in a way that FOSTA- SESTA pushes people into unsafe working conditions, but people who did not have access to those safer working conditions in the first place didn’t know what FOSTA-SESTA was.

What are good resources for sex work 101?

Mason Kortz: We have three questions in the queue. I’m going to read them out loud for people who are watching this after the fact. First one from Rom. Two-part question, how can technologists amplify cause, and what is your favorite resource about sex work 101 for non-sex workers?

Blunt: Sure. I think Melissa Gira Grant’s Playing the Whore is an excellent book, as well as Revolting Prostitutes, are the two books that I would recommend diving into first. I would also suggest following sex workers and sex worker organizations online to see what they’re talking about and being in internet space community with folks. Because I think often our social media followings are so siloed that we don’t see this and don’t see how the communities who are directly impacted are responding. And also because the platform is literally erasing people from it, is also part of the problem. So being intentional about making that you’re seeing community responses too.

Kendra Albert: Can I just add something to that Blunt? Is that okay? I think that one, Rom you asked, how can technologists amplify this cause? And I think there are maybe two things I want to flag. I think one of the lessons I’ve learned as a lawyer in this space is actually letting go of my identity as a lawyer and just being, “What are the other capabilities that I have?” I have a Twitter account with probably mostly followers who are in tech policy. I have access to institutional spaces, right? Literally physical spaces at Harvard in non-pandemic times, and Zoom spaces at Harvard in pandemic times. Or access to other kinds of resources.

One question I would ask first is, how do I let go of my professional identity in doing this work? And just show up as a person who wants to help. And then I think it can be helpful to also, as you sort of get to understand people’s experience better through doing the one-on-one work and through showing up as a person, then think about, okay, how can I show up as a technologist? What’s going on there. That feels like a sort of part of the answer to me as well. Blunt, you want to add anything?

Blunt: No, I’m just echoing that. It’s like when so many sex workers are shadowbanned. Melissa Gira Grant was trying to @ me in something the other day and couldn’t find me because I’m name suggestion banned. She literally couldn’t find my account to tag in a post. And like with the Berkman Klein, I’m not tagged in any of those posts. I’m not sure if it was just for typing my name because people literally couldn’t find my name to add.

I think thinking about how sex workers do not have access to these same tools that people take for granted, both academic power as well as the ability to be seen on social media, is part of that. Someone’s asking a question, which I feel is somewhat related. Can you address how platforms especially payment processors fear of processing money related to sex work affect these direct giving efforts?

I’m going to drop a link right here that we put together on account shutdowns and a harm reduction guide, which I think is interesting and helpful, about understanding internally the way that this oftentimes network shutdown of sex worker, financial processes happen. And right now Hacking//Hustling is conducting research on content moderation in response to the police violence against black folks as well as the intersection between sex worker and activist, because a lot of activism is actually funded by folks direct labor in the sex trade, because it is oftentimes unpaid labor.

One thing that we’re finding in one of the common themes, is how sex workers losing access to financial technologies disrupts movement work. Is one thing that we’re focusing on. And our ability to provide mutual aid to each other, especially in a pandemic where we’re not allowed to just… We’re not as able to just hand people cash, which is how we pay people at the first Hacking//Hustling event. It was just handing people cash before they spoke, which felt very important because sex workers always get paid before rendering a service ideally.

None of us have access to the same financial technologies. It’s really difficult to move money in a community whenever… I’ve lost access to three or four different financial services. And when we were paying folks for the Hacking//Hustling event, it was coming out of my personal account and then being reimbursed. I had to use four different payment processors in order to be able to provide everyone with stipends that… Yeah. I think people just also overlook how impactful it can be to provide someone with money who needs money to give them that money. That is a hugely radical act that is very effective.

Kendra Albert: Yeah. And I think the other thing I’ll say there is my experience of some of this from the Harvard side is the institutions often have no ability to meaningfully assess risks to folks when they’re paying them. The wallet name that you have that you need to get paid under maybe very different than the name you organize under or appear under as a sex worker. And so if you appear at an institution and they need you to be one honorarium, but it has to go to the wallet name rather than the name you work under, even though the name you work under is the name you spoke under, that’s a point of connection between two identities that you may not want to connect it as a sex worker.

Sometimes, as someone who works at the institution, part of my job is trying to navigate that, right? Being like, “Okay…” Blunt, can I talk about the Case Western thing? Okay. We were on a panel together at Case Western and they were like, “Oh, we want to pay you.” Which was great. But then it was like, “Oh, we need you to fill out this W-9 or whatever.” And it’s all this personal information that Blunt didn’t necessarily want to give. What we did was it was like, “Just pay Kendra and Kendra will pass along the money.” Right?

And that works because we have a pretty close relationship where that was something that I think we both thought that was going to work fine in terms of trust. Some institutions would definitely not do that, right?

To your point, to Brianna’s question about sort of the way in which account shutdowns and financial shutdowns affect folks. I think institutions often take for granted access to financial infrastructure, whether it’s certain kinds of bank accounts under whichever name or Venmo or PayPal, or even if it’s stuff like paying folks two months after an event, or reimbursing people. That’s something that institutions often take for granted and people don’t have a lot of space to be like, “This is not cool and this doesn’t work for me.” Yeah.

Blunt: Yeah. No. Truly. Something I think that everyone in academia could learn is to pay people before they render a service. It’s just mind boggling to me that this is not common practice. But asking a marginalized community member for legally revealing information about them without understanding how that could expose them to potential harm, I think it’s something that definitely needs to be considered as well as how quickly are they getting those funds.

Blunt: I will often pay people either before or right after something ends with a direct transfer that lands directly in their accounts so they have access to that money the same day or the next day when it is processed. When I have had to postpone events, I have offered to pay people upfront when the event was supposed to occur in case people were relying on that payment to get through the month.

Kendra Albert: Yeah. I know we’re at 2:00 PM and I see there’s a couple of questions left, but I guess we want to sort of wrap up. Blunt, are there any other thoughts you want to share or things you want to say?

Blunt: I mean, I’m just really excited for the opportunity to have this conversation and sort of reflect on our relationship because I feel we were both doing a lot of invisible work or work that also I wasn’t super aware that I was doing just by it being radical, just asking for access to these spaces. I was just like, “I’m just trying to bridge these gaps.” It’s really interesting to sort of deconstruct the power dynamics in our relationship as well as what we’ve both learned from working with each other. Thank you for taking the time to invite me here to have this conversation.

Kendra Albert: The best way to ever have conversations is by force in front of a whole bunch of Zoom attendees. No. The feeling is so mutual. I hope it’s clear to everyone attending, and I actually say this all the time, how much I’ve learned from working with Blunt and how grateful I am to be in community with her and the many other folks you work with.

Kendra Albert: I think movement lawyering can feel kind of abstract. And I think for me, I guess the takeaway I would just offer is that it felt so natural. Obviously, I’m getting to learn a ton, and obviously if I’m working with sex workers and their lives and livelihoods and community is on the line, they’re calling the shots. Obviously, I need to let go of some of my own ego around this stuff and get over it

I think that in some ways, as Blunt said, movement lawyering is a framework I came to apply after the facts to the things that I was already doing, because they were what felt right at the time and felt responsive to the needs of our relationship and the folks we work with. And so as y’all go out into doing your work, whether it’s movement lawyering or other kinds of movement work, I wish you some of the same ease, I guess, of finding folks who you click with and who you can grow together with. Mason, I know we need to mention our sponsors, so I’ll stop there.

Mason Kortz: Thank you. And again, let me just echo, thank you both of you for giving us so much to think about and to bring back to our work. I want to also just say thank you to Asana and Yumina for their amazing presentation yesterday. I think between the two days we have stuff that we can take back and reflect on and hopefully really improve the way we all do our own tasks.

Apologies to those questions that we didn’t get to. And thank you to all the attendees for coming. And finally, thank you to our sponsors, to the Berkman Klein Center for Internet and Society for providing the infrastructure to have this talk, and to the Office of Clinical and Pro Bono programs for helping us make sure that our panelists get paid.

Thank you all for coming. Welcome to day two of our two day series on movement lawyering. Very excited today to have two incredible speakers with us. First, we have Danielle Blunt, who is a professional New York City based dominatrix and sex worker rights advocate. She has her master’s in public health and researches the intersection of sex work and equitable access to tech.

Legal Literacy Training

Yves, Lorelei Lee, Kendra Albert, and Korica Simon will present on the First Amendment, section 230, Patriot Act, the ways in which fear creates a push for state surveillance and the impact that this has on our community.

DANIELLE BLUNT: Hi, everyone. I am Danielle Blunt. I use she/her pronouns. I’m with Hacking//Hustling, a collective of sex workers and allies working at the intersection of technology and social justice to interrupt state surveillance and violence facilitated by of technology. Do we want to go around and do introductions first?

KENDRA ALBERT: I can go. Hi, everybody. My name is Kendra Albert. I’m an attorney, and obliged to say via that that none of this is legal advice. I work at the Harvard Cyberlaw Clinic as a clinical instructor there, and also do some work with Hacking//Hustling, and my pronouns are they/them. I’m super excited to be here with y’all.

YVES: Hi, I’m Yves. I use she and they pronouns. I’m an organizer with Survived & Punished New York, which is an abolition group. And with Red Canary Song, which is around supporting migrant sex workers.

KORICA SIMON: Hi. I’m Korica Simon. My pronouns are she/her. I’m a law student in third year at Cornell. I got involved with sex worker legal rights when I was in Seattle, and I worked for a nonprofit called Legal Voice. And I also got involved through a clinic at Cornell called the Gender Justice Clinic. So I’m excited to be here today and talk to you all more about the subject.

LORELEI LEE: Hi, everyone. My name’s Lorelei. I’m an activist and I work with Red Canary Song, as well as Hacking//Hustling, and have worked with these folks on issues of surveillance and tech‑related violence that’s impacting people in the sex trades for the last few years. So I’m really excited to be in conversation as well!

DANIELLE BLUNT: Awesome. And Yves, do you want to kick it off with a little community report back? That’d be a great place to start.

How does surveillance impact the sex workers?

YVES: Hi. So, yeah! I’m just going to talk about a little bit about how we got here, and then a little bit how it’s affected mainly the sex working community, but also in general.

So what we’re mainly talking about, or what I’ll mainly be talking about, is around contact tracing and public health, like, uses for surveillance. And then also SESTA/FOSTA and the EARN IT bills.

So these have all increased policing, and I don’t just mean the police department, but also through citizen surveillance and deputizing not only just like people, but also deputizing nonpolice department agencies and companies. Right? This includes a lot of different people, and this really like increases the scope of policing and criminalization in a way that it wasn’t previously. And the way that this has happened is, like, structural violence that has led to so much harm to already marginalized and stigmatized communities.

So kind of the reason why this is, like, happening the way that it is is because a lot of the conversation around surveillance, like, belies powerful moralism that resists against evidence and logic. We see this like happening post‑9/11, where you get this idea of like, if you see something, say something. Which sort of creates these hypervigilant crusaders for both antiterrorism but also anti‑trafficking, which is also an issue that is often tied up with sex work.

So when we see this happening ‑‑ the surveillance has increased in such a way that we’ve seen this happen before? Like, this predates all of these sorts of things. Right? They’ve used contact tracing before to criminalize… different marginalized communities and sex working communities for a really long time. With HIV/AIDS we see as an example, right? They ask you, when you get tested for HIV, they’ve also criminalized the spread of HIV period, right? But when you go into a clinic and you are asked, you’re gonna be asked if you test positive, or if you think that you have any STI, right, but especially HIV/AIDS, they’re going to say, who have you had sex with? Like, name those people. In what timeframe did you have sex with those people? We want to contact those people; how do we get in contact with them. Right? Whether that’s from someone directly, or from you yourself when you go in to get tested. They’re getting that information, and the truth is that information doesn’t just stay at the health clinic, doesn’t just stay where you think it stays. Right? That information gets passed on to the police, to these different agencies like CPS, right? And that leads to the criminalization of a lot of people, not just sex working people. Right? Also people who are profiled as sex workers. They use that information to be like, oh, you’re selling sex. So then the cops are going to come knocking on your door. And this similarly happens with COVID, right?

How is contact tracing used to surveil marginalized communities?

So we’re seeing what’s happening with COVID is they’re using contact tracing in a very similar way. And also, if you’ve seen the public rhetoric around this, right, the way public health officials and government officials are talking about it, they say that sex workers are high‑risk people, right, to have COVID. So if you are working in a massage parlor or on the street and you come in to get tested for COVID, they’re going to be like, oh, how did you get contact ‑‑ how did you get this? Who were you in contact with? Or if someone you know has got COVID and goes to get tested, they ask who were you in contact with, and you tell them, oh, I went to this massage parlor or met them on the street, that’s a way of criminalization. The truth is they are not just out to treat you, right? They are going to turn over that information to the police. This happens to spread the scope of policing in so many different ways, not just in the sex working community. Right? In a lot of different communities, they use these exact same surveillance techniques. We should think of surveillance as a strategy that exists within the larger frame of policing.
Also contact tracing, like, these different methods of policing are used to marginalize other communities, who are not sex workers but are targeted as if they were anyway? We see this targeting protesters, recently. We see them surveilling a lot of communities in this way. How did you get this? Oh, you were at a protest last week? Who was there? This all happens in the same scope, and in all of these different agencies that have then been deputized. Right.

What happens when you have these situations ‑‑ with SESTA and FOSTA and EARN IT, we wouldn’t directly think of them as surveillance? Oh, they’re censoring and taking down these sites; that’s not directly surveillance. But that’s not exactly true. A lot of these bills are also like collecting information, right? Because they’re putting these sorts of laws in place to go against sex trafficking? So they tell you, these are the indicators of sex trafficking, looking for these indicators. But really, those indicators aren’t indicators of sex trafficking most of the time and are also spread out to sex workers and other people and people who are profiled as sex workers. So it’s also a lot of data collection that is happening in order for them to censor, shadowban, and do all of these things anyway. And that data is also being turned over to the police to be used.

But also, we generally see the kind of attack that happens to sex work coming in from all ends. Where like, so SESTA and FOSTA, we saw this. Right? This is just what happened already. People are pushed to work in more dangerous ways because you can’t go on Backpage, you can’t go on Craigslist ‑‑

DANIELLE BLUNT: Can I stop you for one sec? That is amazing. Thank you so much for that. I just want to take a moment to ask for definitions on what is contact tracing and just, like, anyone who wants to jump in a one‑sentence summary of FOSTA‑SESTA and EARN IT, just so folks are on the same page from the forefront.

What is contact tracing?

YVES: Well, I can like expand a little bit on contact tracing, right? So when an epidemic occurs, right, which I brought up HIV/AIDS, how they kind of figure out who might have it so that they can “treat them,” right, in the best case scenario, this information would not be used to police people. Right? But that’s not what happens. But, like, contact tracing is when they try to figure out who has had it, or who gave it to you, and like ‑‑ or who you could have possibly given it to, right, in order to stop the spread, so you can get those people into treatment centers or in treatment.

So if I, for example, was to go into a clinic, and I was like, I have chlamydia. Right. And they’re like, okay, so you have chlamydia. Who did you have sex with before this? Who did you have sex with after you thought you might have shown symptoms? And then you like list them off, like, okay, I saw Blunt! I saw Kendra! I saw Lorelei! I saw all of these people! And then they’re like, oh, did that person tell you that they have chlamydia? Did that person tell you that they have HIV/AIDS, da da da da da. We see the criminalization of HIV/AIDS like similarly with the criminalization that’s happened with COVID, where they’re criminalizing directly the spread of COVID and HIV, but also generally, right? They use this information to be like, oh, who did you get this from? And ideally, they wouldn’t police people, but what ends up happening is they ask you all of this information, and then they kind of pick out those indicators to be like, you’re a sex worker. Like, you’re selling sex. Right? So we’re gonna like show up, and we’re going to arrest you. Right.
I hope that that makes sense.

DANIELLE BLUNT: Yeah. And I also think, too, with the protests that are going around, I think that there’s a lot of contact tracing that’s being done with like sting rays and cell phone tracing, which I hope some other folks can talk about in a little bit. And I would just love like a one or two‑nonsense summary of FOSTA‑SESTA and EARN IT before we go into them in more detail.

KENDRA ALBERT: Um. I will do my best. Lorelei is watching me with an amused look on their face.


So, FOSTA and SESTA are laws that were passed in 2013 that greatly increased the incentive ‑‑ F‑O‑S‑T‑A and S‑E‑S‑T‑A. Thank you, Blunt. That greatly increased the incentive for online service providers, folks like FaceBook or Twitter or Craigslist, to remove any content related to sex work or possibly attributable in any way to sex trafficking or related to sex trafficking. And we can talk a little bit more about how specifically they did that, but that’s like the one‑line top‑level summary.
EARN IT is a pending bill in front of Congress right now that is meant to do some similar ‑‑ basically, engages in some similar legal stuff around child sexual abuse material, making it ‑‑ incentivizing companies and online platforms to be more potentially invasive in their searches for child sexual abuse material by creating more liability if they’re found hosting it.
Lorelei, how was that?

LORELEI LEE: Great. I think that was great. It’s very ‑‑ I mean, FOSTA‑SESTA has a lot of parts, and so it’s… But I think what you are talking about is the most important part, which is the impact of it and what it incentivizes.
And the one thing I would add about EARN IT is I think what EARN IT will do that is similar to FOSTA‑SESTA is that it will incentivize companies to remove all information related to sexual health and anything that teaches youth about sexuality.


KENDRA ALBERT: Very upbeat.

DANIELLE BLUNT: And ‑‑ yeah. (Laughs) We’ll be getting into those a little bit more. I have one more question for Yves: Is turning health info to the police doable via legal loopholes, like HIPAA, or is that happening in the shadows?

KENDRA ALBERT: I can also take that one, if you prefer. So HIPAA ‑‑ HIPAA, which is the U.S. health care privacy law, federal health care privacy law, explicitly has a carve‑out for so‑called “covered entities,” health care providers, turning over information to law enforcement. So it specifically says, you don’t need to get consent from people to turn their information over to law enforcement. So HIPAA doesn’t prevent that.

You know, another thing, and actually I think this really ties in really nicely to some of the stuff we want to talk about a little bit, like the Patriot Act, which brought in surveillance powers to the U.S. government, passed in 2001, right after 9/11, is a lot of times even if there isn’t an explicit process for getting a law enforcement agent or even a public health entity to request information, say if they went through appropriate legal process, many ‑‑ there are now ‑‑ there are often legal regimes that encourage what’s called “information sharing.” Which just basically means, like, that there are… They try to eliminate, like, privacy or other reasons that information might be siloed between different parts of the government or different governments, like federal, state, local. So even if, you know, you don’t have law enforcement knocking on the health providers’ door with a request for information, like a subpoena or whatever, there’s often these efforts to kind of standardize and collect and centralize these forms of information.
Yves, do you have anything ‑‑ do you want to add to that? Did that feel like an adequate summary?

YVES: I feel like that was very clear. Yeah.

What is the Patriot Act?

KENDRA ALBERT: So I think ‑‑ Blunt, do you mind if I keep going to talk about Patriot Act stuff for a second? So I think that, you know, one of the things that I think is worth noting is you see a couple general trends, in surveillance. And I’ll also let Korica talk more about some particular ways this plays out in particular communities. But just on a super high level. We can see this sort of movement from the Patriot Act to now, where A, we see more requirements around information sharing. One big critique of the U.S. government’s… I hesitate to say intelligence‑gathering apparatus with a straight face, but! And what I mean by that is the CIA, the NSA, the sort of intelligence agencies, as opposed to more traditional law enforcement agencies like the FBI or police. Was that they were gathering all this data, but they weren’t sharing it in ways that were actionable across multiple agencies. So when the Patriot Act was passed after 9/11, one of the goals was to make it easier for agencies to share information. I think that’s a general trend that’s happened, post‑Patriot Act to the current moment, where we see things like fusion centers and other ways to collect surveillance data from multiple ‑‑ and Palantir’s databases, and ICE’s data collection… Data that’s collected across multiple methods of surveillance and putting it together to gain more information about the lives of individual people.

Obviously, this has dramatic effects on sex working populations, often because, A, often specifically criminalized and over‑surveilled? But also, you know, if… Often, information that is innocuous, sort of not raising a red flag on its own, when combined with other information can suggest more specifically what kind of activities folks are engaged in or who they’re spending time with.

The other thing I want to highlight about the Patriot Act is surveillance after ‑‑ well. Two more things. I’m trying to be brief, but the lawyer thing is everything comes in threes, so I have to have three things I just want to highlight about the Patriot Act. Okay! So number two is that you see these particular surveillance tools be originally deployed for what’s considered very, very important law enforcement activity. So originally, actually, a lot of stuff we talked about in the context of antiterrorism work, and that’s what the Patriot Act was about. But over time, these law enforcement tools get sort of “trickle down,” for lack of a better term, into sort of more day‑to‑day enforcement activities. So we’ve seen these actually a lot with something called the sneak‑and‑peek warrant. Which that’s actually a term that, at least, Wikipedia tells me, that the FBI coined, not anti‑surveillance activists? It’s kind of funny that the FBI thinks that’s a good description of what this thing is. But basically, traditionally, if someone gets a warrant for searching your property, it’s basically a document where you go before a judge and you say here’s why we want to search, and the judge says, okay. You said where, you said why you’re allowed to. I’m going to sign off on this, and you police can go search that person’s house, for example.

So traditionally, you know, if you’re at the house, and police show up, you can ask them to see the warrant. And say, hey, I want to confirm that this is the warrant that allows you to search my house. What a sneak‑and‑peek warrant does is say ‑‑ is actually allows ‑‑ this is kind of, it kind of sounds like bullshit, but this is what really happens. Right? Allows the police to set up a ruse? Like, oh, to get you out of the house, go into the house, and sort of search your stuff. And actually, like, one of the contexts in which we’ve seen this really recently, and one of the reasons I connect this back to the Patriot Act, is the surveillance on massage parlors on the Robert Craft case in Florida. Actually what the police did is get a sneak‑and‑peek warrant, claim there was a bomb threat or a suspicious package at a nearby building. All of the folks who worked in the massage parlors were sort of escorted ‑‑ had to be away from the building for their own safety, and the police went in and put cameras in.

And we know this because they tried to criminally prosecute Robert Craft, and Robert Craft had enough money and sort of ‑‑ to hire a legal team that was able to challenge the validity of the sneak‑and‑peek warrant that they used to surveil the massage parlors and others working there.

So, when those warrants were included in the Patriot Act, there’s nothing in there about human trafficking investigations, let alone the stuff that happened in Florida, which actually ‑‑ there’s no human trafficking prosecution coming out of it. Right. From what I read, and others may know better than I do, so I’ll cede whatever claim I have to the truth there, but. It doesn’t look like human trafficking was involved.

So sneak‑and‑peek warrants weren’t written into the law for those sort of investigations, let alone surveillance of prostitution, but these information technologies ‑‑ and here, I include technologies in the computer sense but also in the ways governments do surveillance. Once they get written into the law, their use often gets broadly expanded to new populations, new circumstances. It’s sort of like, you might as well use it.

I had a third thing about the Patriot Act. But… I guess the third thing I’ll say quickly, before I stop, is that I think one thing you’ll see a lot of in discussions about surveillance reform, and especially how it sort of fits into conversations like we might have here about sex work, is sort of an inherent trust that like procedures are going to save people. (chuckles) Which, I’m really skeptical of, just sort of personally? But you know, if you look at sort of what happened, you know, between the Patriot Act and now… So, there was ‑‑ there’s a thing called Section 215 of the Patriot Act, which basically functionally allowed the National Security ‑‑ the NSA to search people’s call logs to see who was calling who. And this was a ‑‑ there was like a legitimately robust debate about this. But one of the sort of reform methods that was actually put on the table and passed as part of the… USA Freedom Act, in I want to say 2016? Don’t quote me on the date. Was actually, they were like, okay, great. Well, the U.S. government can’t hold this giant database of call data anymore. They can’t see who you called and when. But they can go to the phone company and ask them.

And like, yes, that is better. I’m not gonna ‑‑ I would rather they have to go and ask Verizon nicely before they get the call data. But functionally, I’m like, that’s not ‑‑ that’s not safety. Right? And I think that, you know, when we see a lot of the surveillance ‑‑ some types of surveillance reform activity, especially post‑Patriot Act, we’re not even getting close to back where we were pre‑Patriot Act. We’re sort of, like, trying to kind of tinker around the margins, slash maybe add a teeny bit more process. That’s not going to help the folks who are most criminalized and most surveilled.

Anyway. That was a lot from me, so I’m going to stop. Blunt, do you have another question you want to tee up, or folks want to react to any of that?

LORELEI LEE: I have a question, actually. What is a fusion center?

What is a fusion center?

KENDRA ALBERT: Um. Well, so I’m ‑‑ I’m gonna do my best. It’s been a little while. But the… Ha. Despite the weird, kind of futuristic name, it’s basically where all the cops get together. So different ‑‑ (Laughing) Yeah. Different types of law enforcement often, like, have different beats. So one of the goals of fusion centers is to like combine information and share policing and surveillance information from different law enforcement agencies. So that can be, like, you know the one actually I’m most familiar with is the one outside of San Francisco. And there’s been a lot of ‑‑ I don’t to erase ‑‑ there’s been a lot of really amazing research and activism against fusion centers. But actually often and primarily by communities of color. But usually, they’re like… It’s where the San Francisco PD and the Marin County PD, which is the county north of San Francisco, and the BART ‑‑ which is the public transit, one of the public transit organizations ‑‑ where they cops would all share information and sort of share tips. And they were a result of the sort of, the attempt after 9/11 to deal with this ‑‑ what people saw as this problem of all this information being siloed.

DANIELLE BLUNT: Awesome. Thank you so much, Kendra.
Korica, I would love to hear from you if you feel like now’s a good time to chime in.

The history of surveillance in marginalized communities

KORICA SIMON: Yeah. So I can speak a little bit on the history of surveillance. So, as Kendra stated earlier, marginalized communities have historically been affected, have been victims, of government surveillance. And surveillance does have roots in slavery. So in 1713, New York City passed lantern laws. These laws were used to regulate Black and Indian slaves at night. So they ‑‑ if you were over the age of 14, you could not appear in the streets without some kind of lighted candle so that the police could identify you.
And we’ve seen like this same thing recently, with NYPD, where they are shining survey lights like floodlights in Black communities. And we saw that increase after they received a lot of criticism over stop and frisk. And people in those neighborhoods were reporting that they could not sleep at night. Like, the lights were just blinding them.
And Simone Browne has written a lot about this subject, and how the ways in which light has been used to surveil people. And I believe they also write about technology, as well, and how we’ve moved to that side of things.


So in regards to technology surveillance, one of the most well‑known abuses of surveillance by the government is COINTELPRO. I think it stands for counterintelligence program. It was basically a series of illegal counterintelligence projects conducted by the FBI aimed at surveilling and discrediting, disrupting, political organizations. So the FBI in particular targeted feminist organizations, communist organizations, and civil rights organizations. And the government’s job was basically to do whatever they could to just like disband them and get rid of them by any means necessary. And they mostly did this through, like, wiretaps, listening in on people’s phone calls, tracking them down, as well as having informants involved as well.

And as a result of this, quite a few people were murdered or put into prison. Some Black members of the Black Panther party are still in prison. And… Two of the most talked about people who are victims of this are Martin Luther King, Jr., as well as Fred Hampton, who was drugged by an FBI informant and then murdered by Chicago police. But also Angela Davis has been a victim of this as well. And again, we know that these practices are still continuing today. So we kinda got into the protesters and how they’re being surveilled. And I think it came out in 2018, 2019, that Black Lives Matter activists were being watched. Their activity was being watched on the internet. And now we have seen recent reports that protesters today are being watched, as well, either through body cameras, cell site simulators, license plate readers, social media, drones, as well as just cameras in that area that may use facial recognition technology that could help the police identify who the protester is and get access to your social media accounts.

So these are all, like, issues that are happening today as technology increases. We’ve only seen it get worse. And we know that marginalized communities are the most affected by this. If they use this on Black, Native, Latinx, immigrant communities, they’re also going to use this on others as well. Sex workers, and sex workers mostly fall into marginalized communities. So.

I don’t know if I should talk about the third part right now, or if I should wait? ‘Cause it’s a little bit different, but… Okay. I’ll just go ahead. (Laughs)

What is The Third Party Doctrine?

So, kind of transitioning a little bit t. The Third Party Doctrine is a doctrine that comes out of two Supreme Court cases, United States v Miller and Smith v Maryland. And what they state is if you voluntarily give your information to third parties, then you have no reasonable expectation of privacy. So third parties include your phone company, Verizon, Sprint; e‑mail servers, if you use Gmail; internet service providers; as well as banks. And so that means that the government can obtain your information from these companies without having a warrant. So they don’t have to have, like, probable cause that you’re doing something in order to get access to this information.

And the Supreme Court’s logic behind this decision was that, well, if you tell someone something, then you’re giving up your privacy, and like you can’t expect that that will stay private forever. What ‑‑ I should also back up and say that these cases were decided in the 70s? So. Not today, where like our whole life is on the internet, and we are constantly giving third parties our information. And actually Justice Sotomayor, she has suggested that she would like the Court to rethink the third party doctrine, because it’s just a completely different time today. A lot of us use our GPS, and we wouldn’t think that ‑‑ I don’t know. That they could just share all of our information without us knowing.

And I will say that if you’re ever curious about like how often the government is requesting access to this information, some companies, like Google, I think FaceBook, and Sprint, they do report this. I know Google reports it under transparency reports. And you can see how often the government has asked them ‑‑

KORICA SIMON: Oh. Well, hopefully, they’re still doing it, and you can see. I think it’s roughly a hundred thousand people a year. But we don’t know, like, what the result of that is. It’s honestly probably a lot of people who aren’t doing anything at all.

And so we’ve also seen, like, some people starting to move their e‑mail accounts from using Gmail to e‑mail servers that care a little bit more about privacy and that are more willing to fight these requests from the government.

And then I’ll also say the last thing is that the government can also request that these companies, like, not tell you at all that they’ve requested this information. So… This could be done completely in secret, as well. So.

Privacy from law enforcement and the Fourth Amendment

KENDRA ALBERT: So. I think ‑‑ I want to just sort of flag some stuff that Korica said and sort of highlight certain parts of it, and I want to contextualize a little bit of this. I think, you know, often ‑‑ we’re sort of talking here about sort of privacy from law enforcement, and the primary source of privacy from law enforcement in the U.S. is the fourth amendment, which is so obvious Korica didn’t say it, but I’m going to say it just in case it isn’t obvious for other folks. And, you know… Two ‑‑ one thing worth noting about the fourth amendment, for like folks who are sort of concerned about where ‑‑ about like the relationship between all of these legal doctrines and their actual lives? You know, for many, like… Often, I want to contextualize for folks that having Fourth Amendment protection, or like saying, oh, the U.S. government violated the Fourth Amendment, only gets you so far. Because if what you want is the government not to have access to that information, the horse has already left the barn, to use the right metaphor. Which is to say that most of the remedies that come from, you know, unconstitutional searches and seizures, or unconstitutional requests for information, just are about not having ‑‑ like, that information not being able to be used against you in court. Which is of very limited value if what you’re concerned about is like the safety of yourself or your community, of not getting folks arrested, or if you don’t have questions access to the kinds of representation and resources that would allow you to go through a legal battle and you’re going to plea out the second that you get arrested.

So, you know, I always want to caution any story I tell, or any story we tell, about the importance of constitutional rights in this area with a little sort of real politic about what does it mean, or real talk about what does it mean, to have access to these kinds of rights.

The other thing I want to flag is one ‑‑ what Korica said is 100% correct, as a matter of doctrinal law. There is a weird thing that has happened with regards to government access to data, which is a lot of the larger online service providers, and in this I include Google and Twitter, some of the like… FaceBook, actively will not provide certain types of information absent a, like, appropriate legal process. So it’s actually legally contestable whether the government can get access to your e‑mail that’s stored on a server without a warrant. It has to do something with ‑‑ in certain contexts, with how old the e‑mail is, and whether it looks like it’s been abandoned on the server? Is statute that covers that, the electronic communications privacy act, was passed in the 90s, and boy does it read like that! Like, good luck!

Does the government need a warrant to access your e-mail?

But point being, Gmail will require a warrant to get access to your e‑mail content. That’s great, except that, you know… If your e‑mail content gets turned over and then you then want to challenge it, you’re still in the same place you were previously, which is that the government has access to the e‑mail, and that could mean serious consequences for you independent of whether it’s later admissible in court.

So part of what we’re talking about with legal literacy in this space, what I want to encourage folks to think about is, okay, how do I keep me and my community safe independent of the legal remedies? Because oftentimes, those legal remedies aren’t acceptable to everybody. Just realistically and very obviously. And/or will sort of help you after the fact? Maybe it means you recover money. Or maybe it means the evidence isn’t used against you in court. That doesn’t help very much if what you’re concerned about is the safety of you and your people.

So making sure that, like, we don’t pretend these remedies will make people whole for the harms they experience from surveillance or from the government. But rather that, you know, some of these protective measures that folks can take are about sort of trying to prevent the types of harm that the surveillance might cause in the first place.

Apples one more quick note is that a relatively recent Supreme Court decision has suggested that the government does need a warrant to access your cell phone location. So that was like one little bit of good in a sea of terribleness that is the third party doctrine.

LORELEI LEE: I think ‑‑ so I think I’ll respond to a little bit of that to say that I… you know, I’m thinking about the connections that are between what Yves has been talking about, and then what you folks are talking about, in terms of… the way that information gets used against you that isn’t really cognizable in the law, but once they have your information and have you on their radar, they use that information to get more information, to follow you, to trace your contacts, and happening in multiple different contexts. And… Something that I think is really important that people don’t think about all the time is that everyone breaks the law. And… (Laughs) And it is people who are criminalized. It is ‑‑ so, we think of criminalization as being about behavior. But it is really about people in communities.

Because everyone breaks the law, and the only folks who are targeted by police ‑‑ and I mean state police, federal police, et cetera ‑‑ like, those are the folks who get punished for breaking the law. And that punishment can be… you know, because they have followed you for a certain period of time in order to collect enough information in order to the make something cognizable in the law.

So I’m thinking about how one of the themes of what we’ve been talking about is the deputizing of folks who are not thought of as law enforcement agencies, but whose collection of your information becomes a way of enforcing behavioral norms. And that happening in a way that is ‑‑ goes beyond what criminal law can even do. And so… Thinking about sort of the modern history of how this has happened in law that ‑‑ in some of the laws that we’ve been talking about, some of the federal laws that we’ve been talking about. So, the Patriot Act, one thing to think about in terms of the Patriot Act is how prior to 9/11, Congress had been considering passing some form of regulation for internet companies and data ‑‑ regarding data collection. And Kendra, please jump in if I am messing this up. Or anyone, obviously. (Laughs) But… When 9/11 happened, that regulation sort of was pushed to the side. And it is during this time period that we have this sort of ‑‑ we have the increase in government surveillance, but we also have this sort of recognition by private corporations that data collection is something that can be monetized. And they are unregulated in doing this, and there is this idea that if you have given over your information voluntarily, it belongs to those people, regardless of whether you did it knowingly or not.
So we have this sort of rise of data collection that is a creation of surveillance tools by corporations, and there’s sort of a monetary incentive to keep creating stronger and stronger data collection tools that can be more and more invasive and do this kind of contact tracing that does the thing that Yves has been talking about, that you folks have been talking about, where you don’t ‑‑ each piece of information looks innocuous, but when you put it together you have a map of who you are, and that’s especially concerning for sex working people because they identify sex working people based on this collection of seemingly innocuous information. And you have the incentive to create tools that are more and more effective at collecting that information. And then you have the partnership between government and private companies that then allows that information to be used in order to enforce norms that are… expected by the state, that are thought of as beneficial to the state. And, obviously, targeting people in the sex trades at a high rate. And especially people in the sex trades who are parts of ‑‑ part of other marginalized communities.

And so FOSTA and EARN IT are just sort of… I think we talk about FOSTA a lot as though it is a, like, a revolutionary law that was passed, as though it made huge changes in the law. And it, you know, it did make a change to one specific law that I think people thought of as being sort of dramatic. That’s Section 230. However, it is ‑‑ it really was just an evolution out of stuff that had already been happening. So FOSTA’s purpose, and EARN IT’s purpose, as well, one of the main purposes of both of these laws is to decrease limits on civil liability for internet companies. And you can think of that as being Congress sort of taking out, taking themselves out, taking their responsibility away from themselves in terms of regulating these companies and putting, deputizing civilians to do that regulating for them, and deputizing corporate ‑‑ also deputizing corporations to create… rules and collect data that is thought of… (Sighs) Or is publicized! As being some, having some impact on trafficking and sexual exploitation and sexual violence? But all of that being simply… a show. And actually increasing sex workers’ vulnerability to exploitation. And when you decrease our ability to communicate with each other, when you decrease our ability to be visible online, when you decrease our ability to share information, health and safety information, you increase folks’ liability ‑‑ sorry, folks’ vulnerability, to violence and exploitation.

And I notice that someone asked earlier whether EARN IT had a piece about not prohibiting sexual health information for use. And it doesn’t, at all. But what it does is increase civil liability so that it incentivizes companies to draw the line further than the law specifies. And that is the same thing that FOSTA does. So, these laws ‑‑ because civil liability can be ‑‑ right, anybody can sue. You know… So, think about ‑‑ in terms of criminal law enforcement, that ‑‑ you need specific resources. Like, the police and the FBI ‑‑ policing happens on all of these different levels, state and federal. I mean, they do have ‑‑ obviously, this has been, you know, this has been in public conversation for ‑‑ especially recently, is how many resources these folks do have. And it is a obscene amount of resources. However! It is still less likely that you will be subject to criminal prosecution than that as a company you will be subject to a lawsuit. And the lawsuits also have a lower requirement in court in order to have liability. Like, civil liability, you have to show less in court than you do to prove criminal liability.

And so when you increase civil liability, you incentivize companies to draw the line much further than the law specifies… because they want to get rid of even the appearance of liability, and even, you know ‑‑ because also, lawsuits are expensive, regardless of whether the claims can be proven or not! So, that’s ‑‑ I’ll stop there.

DANIELLE BLUNT: I wanted to make sure that we take a few minutes to sort of talk about what FOSTA‑SESTA and what EARN IT are amending. So Kendra, I would love just like a two‑minute summary of Section 230, and then Lorelei, if you wanted to sort of continue with what ‑‑ like, what EARN IT is, and what EARN IT’s proposing, and why the over‑‑‑ how ‑‑ and the ways in which it’s so overly broad that things like queer sex ed could get caught up in it.

KENDRA ALBERT: Yeah. And I think actually I want to sort of tag on to the end of what Lorelei was saying, ’cause I think it ties perfectly into a discussion about Section 230, which is to say the sort of what we lawyers would call “commandeering,” but the use of private companies to do things that the government… isn’t sure that it has the political capital or will to push forward? It’s not just because they, like, can make it happen using civil liability. It also is much harder to bring a First Amendment challenge to, like, companies deciding “voluntarily” to over‑enforce their own rules. Which, they’re not bound by the First Amendment. Versus the government making a particular rule, which would be susceptible to a First Amendment challenge.

So I can talk a little bit more about that, but I just want to make that point what Lorelei is saying. Which is delegating these responsibilities to private companies is not just better from, oh, you can kind of throw up your hands and claim no moral responsibility for what happens, but also it limits the ability of individuals what are harmed by these sort of changes to legal regimes to effectively challenge them.

What is section 230 of the Communication Decency Act?

So let me talk about 230, which I think will help us conceptualize the stuff, and then we can jump back to SESTA and FOSTA and EARN IT.

So Section 230 of the Communications Decency Act was passed in 1996…? I’m really bad with years. Anyways! Passed in 1996. And it was originally part of an omnibus anti‑porn bill, that had everything ‑‑ that was supposed to restrict minors from seeing porn on the internet. Everybody in the 90s was real worried about porn on the internet. And… It turned out that most of that bill was unconstitutional. It was struck down by the Supreme Court in a case called ACLU versus Reno. But what was left was this one provision that hadn’t gotten a ton of attention when it passed called Section 230. And what Section 230 does is it says that no online service provider can be held liable for the sort of ‑‑ or, to be the publisher of content where someone else, like, sort of spoke it online.

Okay. What the fuck does that mean? So, let’s take a Yelp ‑‑ let’s take Yelp, for example. On Yelp, there are Yelp reviews, posted by third parties. So if I post a Yelp review of my local carpet cleaner. Is always use them, because there’s a funny case involving carpet cleaners. Um. Anyway! I post a review, who I have not used. They have cleaned zero of my carpets. I say, these people are scum bags. They ripped me off. They told me it would cost $100 to clean all my carpets, and it cost me 3,000, and I got bedbugs. So that’s inflammatory. They could potentially sue me, because it’s not true and it harms their business.

What Section 230 says is carpet company can come after me, Kendra, for posting that lie, but they can’t sue Yelp. Or if they do, they’re going to lose. Because Yelp has no way of knowing if my claim is true or false.
So that’s the original meaning of Section 230. It’s gotten broadly interpreted, for lots of good reasons.

So right now, there are something like 20 lawsuits against Twitter for facilitating terrorism, all of them thrown outed on Section 230 grounds. The one that is most relevant to our conversation right now is a case out of Massachusetts called Doe v Backpage, which was brought by a number of folks ‑‑ survivors of trafficking against, for what they claimed was complicity and sort of knowledge of the ads that were placed on Backpage that they were harmed as a result of. And the first circuit, which is a sort of… one step below the Supreme Court, in terms of courts, said: That’s all very well and good, but Backpage isn’t the speaker of any of those ads. They didn’t write the ads. They don’t know anything about the ads. We’re throwing out this case. And in the aftermath of that, Congress was like, this shall not stand! And passed FOSTA and SESTA. And I’ll turn it over to Lorelei to talk more about that.

LORELEI LEE: I think I’m curious what the audience’s questions are about FOSTA‑SESTA, because I think there’s been quite a bit of information written about them, about that law, and I wouldn’t want to just talk on and on about it when it’s not focused to what people want to hear. Or should I talk about EARN IT? Or ‑‑ I don’t know, someone tell me ‑‑

DANIELLE BLUNT: I think we did a summary of FOSTA‑SESTA. I would like another one‑sentence summary of FOSTA‑SESTA, the impact. And then what the fuck EARN IT is and where it’s at, would be helpful.

LORELEI LEE: Yeah, so we can talk about why Section 230 matters to these laws.


Why is Section 230 important?

LORELEI LEE: So FOSTA‑SESTA does several things, does like six things in federal law, including create a new crime under the Mann Act, which is originally the White Slave Trafficking Act of 1910, and it’s been renamed, but it’s not better…? (Laughing) Oh, boy. So it creates new crimes. That’s one thing that it does. But it also a changes Section 230 so that it no longer protects against lawsuits under federal law regarding specifically the federal anti‑trafficking law, 1591 ‑‑ 18 USC, 1591, in case anyone wants that number. Um. (Laughs)

And so that, what that does… There ‑‑ it’s not clear that Section 230 was actually preventing people from suing companies, specifically Backpage. Backpage was the center of congressional conversations and the center of media attention. And… The chamber was that Backpage was going un‑‑‑ they were held ‑‑ not being able to be held accountable for trafficking that was happening on their website. But actually, the first circuit case was maybe… just didn’t have enough evidence yet to show how actually Backpage could have been held responsible regardless of Section 230, because Backpage was doing things like editing ads and that kind of thing that would have made them liable in a way that’s unlike Yelp.

And so… So, okay. But! People started talking about Section 230 because there was a documentary made about the first circuit case, and it was very well‑publicized, and that documentary was shown in Congress. And people started talking about Section 230 as though that was the thing preventing lawsuits.
I mean, another important piece to remember about making civil liability the place where we enforce anti‑trafficking law and anti‑exploitation law is that it puts the onus on victims of trafficking and victims of exploitation to bring those lawsuits that are very expensive, that ‑‑ lawyers for those claims are inaccessible. You have to spend years talking about your trauma. And! You know, it takes such a long time to get ‑‑ if you are going to even get compensation ‑‑ and then, at the end, you get monetary compensation if you win your lawsuit. But ‑‑ it doesn’t prevent trafficking! And it doesn’t prevent exploitation. And we know that there are other methods of doing that that are much more effective. And many of those methods involve the investment of resources, I think ‑‑ I think this is one of the reasons that this is happening, is that many of those solutions involve the investment of resources in marginalized communities. And instead, Congress wants to pass bills that don’t require the redistribution of wealth in this country.

So EARN IT does something similar to Section 230. And the way that FOSTA makes a carve‑out in Section 230 around the federal anti‑trafficking laws, EARN IT makes a carve‑out in Section 230 around the child exploitation laws, specifically child sexual abuse material laws. And, similarly, when Kendra and I did this research, there haven’t ‑‑ there hasn’t been a lot of examples of Section 230 preventing those claims being brought. So, again, it feels a little bit more like this is for show than anything else. But we can predict that the impact that EARN IT will have will be very similar to the impact that FOSTA had in terms of the removal of information online and the censoring of people online. And the ‑‑ not just the removal of information, but the prohibition on specific people talking.

And we think that, based on our, like, analysis of EARN IT, that that impact will be really on queer youth. So, because that’s a specific community for whom there’s a lot of fear around sexual information being shared, and it’s also a specific community who is seeking that information out! Because, I mean, just being ‑‑ having been a queer youth once myself! I know that, like, you just don’t ‑‑ you just don’t necessarily have access to folks when you’re a kid who can tell you that you’re okay and you’re normal.

DANIELLE BLUNT: Yeah. Thank you for that, Lorelei. And I wonder, too, if Yves and Korica, if you have anything that you would like to add before we open it up to the Q&A.

YVES: I mean, I think that… you know, y’all covered it pretty well, right? Like, I think that like everybody covered a lot of stuff. I mean, I’ve been looking at the questions, and I also only really have, like, a little bit to say in terms of… you know, the way that we see a lot of this happen, right? We’ve obviously talked about criminalization; we’ve talked about censorship, and kind of what happens. But specifically, in talking on this panel around the impact on sex workers and marginalized communities, like the ways that we really see a lot of this happen, and the push for this, right? Like, whenever there’s an increase in surveillance, like that increases the scope, it’s going to increase the scope of policing, and also the general stigmatization. Right?

So we don’t ‑‑ like, I think everybody kind of knows that I’m, like, most knowledgeable in terms of the impact on in‑person sex work. But when we also look at the impact these things have on like digital sex work, that has gotten so much more popular during these times, right, we also see that all of these groups, and like ‑‑ the groups that are behind these bills to begin with, right? Are pushing for other forms of censorship or limitations being put on not just sex workers, but other marginalized communities, but also, like, you know, we know that these intersect. We know that there are intersections here. Is that, they ask people like credit card companies to not accept payments for sex workers. We’ve seen that happen, right? And like, in terms of like in‑person sex work ‑‑ and Lorelei talked about this, right? People get pushed into the most dangerous forms of sex work, making them more vulnerable. In fact, making them more vulnerable to the human trafficking that these people are so against, and make everybody so much more vulnerable to all of these things, which we like kind of talked about. And I think it’s kind of important in talking about the questions that I’m kind of seeing about, you know, what do we do? Because I feel like a part of our conversation kind of scares everybody into being like, oh, my gosh, I should just not use social media! I shouldn’t even text! (Laughs) Which, I don’t want people to think that that is the case? Right? F I think that, like, all of these different encryption methods, and these things, right ‑‑ although! Right? I do not think that they’re foolproof, which they’re not! Like, there are still many ways in which the police and like other agencies can get access to this information, one of those ways being like whomever you’re sending the information to, and wherever that information kind of ends up. If you like, you know, sync it to your laptop, sync it to your phone. All of these different ways, right? But these are tools that can protect you.
So I think that if you want to use these encryption methods, these like ‑‑ proton mail to encrypt your mail, iPhone messages, that’s a good thing. Take what you have. But know they’re not foolproof.

I also want to talk about ‑‑ Kendra kind of talked about this and the reforms and what they look like, and how we think we’ve solved this, or people think they’ve been solving it? Obviously, I came into this conversation, I told everybody I’m an abolitionist. Right? I work with abolitionist groups. I think at the end of the day, surveillance is a strategy that they use in policing, before this technology existed. Before they started doing this stuff, they always surveilled. It’s just an arm of policing. At the end of the day, the problem is policing, policing that has always been used and meant to use to disappear communities. right?
So the bigger fight that we’re fighting is policing. So I don’t want people to think that the fear is, oh, you shouldn’t do anything. The truth is, if you’re a marginalized person, if you’re a sex working person, they are going to want to police you, no matter what, and we’re fighting against that.
(silent applause)

DANIELLE BLUNT: Thank you so much for that. Korica, did you have anything that you wanted to add?

KORICA SIMON: I will say I went to a conference. It was a Law for… Black Lives? I think is what it’s called? And they do things around, like, the law and liberation of Black people. And the speaker talked about how, like, have you ever noticed if you lived in a Black neighborhood, or a person of color, people of color neighborhood, police are everywhere? But if you live in white neighborhoods, police are not there. And it’s not because there is more crime in one area over another. In fact, like, police just make the crime worse. And I thought about that a lot, ’cause I’ve lived in Black neighborhoods. I’ve lived in white neighborhoods. And there is a stark difference. And there is still, like, “crime” happening in the white neighborhood, but nothing ‑‑ like, police weren’t there. So I think it is important to think about how policing is the problem.

And then one other thing I forgot to bring up is that before this talk, I was doing like research on what’s been happening lately, ’cause I feel like there’s just always so much happening. And something that I missed was that some police departments at NYPD and Chicago Police Department, they have been putting like ads… sex ads on websites, and people will text that number looking for services. And they will ‑‑ the NYPD Police Department will send them a message saying ‑‑ I have it pulled up. It’ll say, like, this is the New York Police Department. Your response to an online ad for prostitution has been logged. Offering to pay someone for sexual conduct is a crime and is punishable for up to seven years of incarceration. And… Yeah!
So, people in that article were talking about how the police have access to their name and their phone number, and they don’t know like what’s gonna happen to them. Like, are they just logged in some database? And I think it’s safe to assume that they probably are logged into some kind of database. And I think, as we think about how ‑‑ as yeast said, how sex work is becoming even more digital with the time that we’re in, like the impact of this on sex workers, I’m guessing it’s gonna be really large. So, yeah. I just wanted to bring up that extra way that surveillance is happening.

LORELEI LEE: I actually wanna add one more thing that I intended to say and forgot to say, which is just that in terms of this question of what we do, I do think that one other point to me, like, when they’re passing these laws, something else they’re doing is deputizing us to police ourselves and to chill our own speech and to prevent us from organizing and to prevent us from using any tools at all to communicate with each other and to talk about these issues. So, I don’t know. I do think that the… It is a mistake for us to use this as a reason not to… speak to each other! I mean, that is like really what we’re talking about, when we talk about not using online tools and other electronic tools of communication that are…

DANIELLE BLUNT: Yeah, it’s really interesting, too. And right now, some of Hacking//Hustling’s researchers are wrapping up the survey that we were doing on content moderation and how it impacts sex workers and activists who are talking about Black Lives Matter over the last few months. And like, we’re definitely noticing themes of speech being chilled, just like we did with our research on FOSTA‑SESTA, as well as the impact of, like, platform policing on both social media and financial technologies has just about doubled for people who do both sex work and are vocally protesting or identify as activists. And… The numbers are just… very intense.

So like, I think… Being mindful about how we communicate, rather than not communicating, is a form of harm reduction and community care. And I also see that this ‑‑ this panel as a form of harm reduction and community care, and this in partnership with our digital literacy training. Because I do believe that the more that we know, the more we’re able to engage meaningfully when legislation like this comes up. And… Like… A lot of these laws aren’t meant to be ‑‑ aren’t written to be read by the communities that they impact, and they’re often intentionally written to be unintelligible to the communities that they impact, and think that they can just like get them signed into law without ‑‑ without having to check in with the communities that are harmed by this legislation.

So I think that anything that we can do to better understand this and decrease that gap between the people who are writing this legislation, or the, like, tech lawyers who are opposing this legislation, and like bringing in our own lived experiences? Is incredibly important work.

KENDRA ALBERT: I also ‑‑ well, I know we want to ‑‑ well, I’ll stop. Blunt, you want to do Q&A?

DANIELLE BLUNT: Sure, we can do Q&A. If you had one thing to add, that’s fine.

KENDRA ALBERT: So one thought I had there is, one, it’s totally right? But it can feel like oh, my god, there’s so much? That’s one of the hard things with talking about surveillance. It’s like, yeah! You know, police and law enforcement have so many tools in their law enforcement, and… You know? But at the same time, like, our ‑‑ we care for each other by, like, creating space to talk about what makes us feel safer, and how can we make ‑‑ take risks that we all agree to be taking? Right? Risk‑aware consensual non‑encrypted information.

DANIELLE BLUNT: I love that! (Laughing)

KENDRA ALBERT: It rolls just right off the tongue.
But I think I want to highlight what Yves was saying, in terms of the problem is policing? And I think one of the ‑‑ and Korica also said the same thing, so, you know. What we’re all saying, in terms of the problem being policing, and the solution not just being like finding more ways to like slightly narrow the surveillance tools? I think one of the real problems around surveillance, sort of surveillance debates generally, and I say this as somebody who comes out of a technology law tradition, is that they are ‑‑ the folks who are doing work on like sort of high‑level surveillance tools, like things like the sneak‑and‑peek warrants or Section 215 of the Patriot Act, are often deeply disconnected from the communities who are most likely to be harmed once these surveillance tools are widely used. Right? Like, just like with the technology laws, right, there is this way in which, you know, the conversation around like mass surveillance is up here, and we’re supposed to be afraid of mass surveillance, because mass surveillance means surveillance of white folks like me and not communities of color. Right? But at the same time, like, that… So much of the rhetoric relies on like the idea that it’s okay to surveil some folks, but it’s not okay to surveil others. And part of how we fight back is by deconstructing the notion that it’s okay to do this ‑‑ to use these tools on anybody. That like, you know, it doesn’t ‑‑ it’s not actually like, oh, there’s a bad enough set of crimes to make this okay. Right? And that’s part of ‑‑ part of it is not getting sucked into the sort of like whirlpool of like, well, you know, is terrorism worse than human trafficking? Well, if terrorism isn’t worse than ‑‑ if they’re both equally bad, then we need to have the same tools to prosecute human trafficking as we do to terrorism. And here we are where they’re getting a sneak‑and‑peek warrant to go into a massage parlor in Florida.

And I don’t say that flippantly, because those are real folks’ lives, just like there are real folks’ lives impacted by surveillance of supposed terrorist communities. Looking at all of the mosques in New York and Detroit, where folks were under persistent surveillance after 9/11.

So I think part of what we do is we resist the idea that it’s okay if this happens to other people. Because, you know, that’s how… That’s how the tools get built that will, like, eventually be used against all of us.that was what I wanted to say. I’ll stop there.

DANIELLE BLUNT: Thank you, Kendra. Okay. We’re going to open it up for Q&A. Someone asked if we could touch on the recent encryption legislation and how protected we are using services like Signal, WhatsApp, and Telegram.

KENDRA ALBERT: I can take that, and then if Lorelei and Blunt, if you want to jump in if I screw it up.

So, you know, EARN IT was one of the sort of pieces of legislation that was kind of proposed to… make it sort of ‑‑ I don’t want to say “end” encryption, but would have had the practical effect of making encryption, encrypted services more difficult to sort of produce. The other is the LAPD I think laid ‑‑ that’s probably not how people have been pronouncing it. But.
The ‑‑ that bill is way worse. I do not think it’s going to pass. It sort of all‑out tries to ban encryption.

EARN IT actually, sort of between the initial proposal and the version of the bill we’re currently on, got much better on encryption? So now it specifically says that, you know, using encryption won’t ‑‑ like, isn’t supposed to be able to be used against a service. Like, for purposes of figuring out whether they’re liable for child exploitation material. It’s really ‑‑ it turns out that that construction is not just complicated when I say it, but very complicated in the bill, and might do less.
In terms of what the impact is gonna be on like Signal, WhatsApp, and Telegram ‑‑ you know, what I’m hearing in this question is sort of end‑to‑end encrypted services, where the service provider doesn’t have access to your communications? You know, I think that it would be unlikely ‑‑ if ‑‑ if, God forbid, EARN IT as currently existing passes, I think it would be unlikely to sort of result in Signal or WhatsApp going away. In fact, actually, some advocates are currently ‑‑ like Miles Nick in particular ‑‑ are arguing that the current internet construction earn best of your knowledges encryption? I’m a little more skeptical about that than he is. Happy to sort of ‑‑ you know, at me on Twitter if you want to talk about that.

But I don’t ‑‑ those services are not going away under the current version of EARN IT. However, the Justice Department has been trying to sort of get back doors into encrypted services for a long time, and they’re not going to stop. So it’s sort of a… nothing to watch for right now, but stay vigilant on that front.

YVES: I just wanted to generally say, right, like I think… Like, if the question’s kind of getting at like in your personal life, like, how ‑‑ what’s the danger, or like if you’re doing some kind of criminalized work, or something that you are afraid of like the police getting information of, right? Like, it’s not gonna do your harm to use an end‑to‑end encryption service, like iMessage, like WhatsApp, like Signal, like Telegram. Right? But it’s not something that’s gonna protect you wholly? But also should note that, you know, the like the person asking this question is like an organizer or a whore, like, you know. So like, when ‑‑ most of the time, when this information gets in the hands of police from like your texts or things like that, it’s not because they’ve like hacked the system. It’s not like something like that. It’s usually because someone you’ve talked to has like the, the police have gotten ahold of them, they’ve given that information to them. And like, the ways like ‑‑ I kind of talked about this in the beginning, right? When they deputize civilians, we’re not just generally ‑‑ I literally mean there are also people who are just going to be, like, I think that there’s a sex worker at my hotel! Like, da da da da! I think there’s a sex worker in my Uber! Right? And like handing over that information.
So I don’t want people to be like, oh, I’m just like not safe anywhere. Because that’s not really what the scenario looks like in real life, when you’re like on the street and like working. Right? But they’re not, like, fully safe. It’s not like, oh, you can type anything into Signal, and it’s like Gucci.

DANIELLE BLUNT: Right. And I think, too, people can take screenshots. Oftentimes, that’s how information is shared even when you’re using encrypted channels. So I think also just being mindful about what you say, when our saying it to. If you’re using Zoom, knowing that this is going to be a public‑facing document, and we’re not currently planning any political uprisings in this meeting? So it feels okay and comfortable to be using Zoom as the platform. But like… Personally, in my work, even if I’m using an encrypted platform, like, I don’t say anything that would… like, hold ‑‑ I do my best to avoid saying things that would, like, hold up in court as evidence, in the way that I use language.

KENDRA ALBERT: Yeah. I think in the immortal words of Naomi Lauren of Whose can have corner Is It Anyway, people need to learn how to stop talking. Which it turns out is both solid advice, and what my advice is if the police want to talk to you. So, solid on many different front seat.

LORELEI LEE: I think it’s really important ‑‑ like, I think several people have said this already, but just to really emphasize that when we’re talking about this stuff, the intention is to have… you know, informed consent, you know, for lack of a better word, of using these tools. And that… You know, especially if we’re talking about, we’re talking about sex working people, we’re talking about ‑‑ Aaa! Caty Simon! (Laughing) I’m sorry, I had to interrupt myself to get excited that Caty Simon is here. Another expert on all of this stuff.

The thing I was going to say is I do think that sex workers are criminalized folks from many marginalized communities are really good already at risk assessment. Understanding what level of risk you are comfortable with. And using these tools with that in mind. And knowing that nothing ‑‑ there are no answers! Right? There’s no, there’s no system except abolition that is going to prevent these kinds of harms from happening. Abolition of actually policing and capitalism, perhaps! So.
Oh, and the thing I was na say, which is maybe not that important, but the question I had for Kendra, is whether you think EARN IT is still part of encryption in terms of best practices and how that might inform future corporations. I’m not sure if that’s too far in the weeds?

KENDRA ALBERT: I think it could be. So one of the things we’ve been saying internal internally about EARN IT, like in Hacking//Hustling, that I want to emphasize here, is the lack of clarity of what the bill is going to do is a feature by the creators, not a problem? It’s not that we’re failing at interpretation? ‘Cause we’re not. You know. But the… You know, I can say all I want what I think EARN IT means with regards to Signal and Telegram, but as Lorelei pointed out one of the things EARN IT does is create this commission that creates best practices, which who the hell knows what’s going to be in there. And it’s really unclear even how the liability bits are going to shake out.

So even with a specific amendment to the current version of EARN IT that’s supposed to protect encrypted services, we don’t really know what’s going to happen. So really good point, Lorelei. Thank you.

DANIELLE BLUNT: “Other than being educated or somehow not using any technology, what can we do?” I feel like we touched on that a little bit, but if anyone wants to give a quick summary.

KENDRA ALBERT: Yeah, I mean, I think just to echo what Lorelei and yeast have already said, right. Engage in thoughtful conversations around how you’re using the technology, and be thoughtful around how you’re using it, when our sharing what with. I think for me ‑‑ and actually, maybe this gets to the next question, which is sort of like… It doesn’t matter if you don’t break the law? Or what ‑‑ but I don’t have anything to hide! Right? You know, the way I think about this is that, like, everyone has something that law enforcement could use to, like, make your life miserable. That’s just reality. Some folks have many more things! Like. But everyone has something. And so… Not ‑‑ my goal, like our goal I think here is not to sort of suggest like paranoia, they could be listening to everything. Although, you know, yes! I’m not pretty sure that there’s a legal authority to do most things that law enforcement wants to do, and like I’m not under any illusions about that. But so part of how we think about this is, you know, how do we take care of the folks around us and be thoughtful around the risks that we’re taking and make sure that we’re taking risks that are aligned with our values and the things we need to do? Right? And those are gonna look different for everybody. But I welcome thoughts from other folks on the panel, ’cause I think I’ve said enough.

LORELEI LEE: I think I’d like to add something, which is that oftentimes when we talk about this stuff, we talk about it in terms of personal risk as though risk belongs to us alone, when I think it’s really important to recognize the communities that you’re interacting with and the people that you’re interacting with and to understand that even if you feel as though law enforcement won’t do anything to you, you’re not a likely target, it’s highly likely that there are people in your life who are likelier targets, and your refusal to talk to law enforcement, or your care around how you communicate with folks, is protective of the people around you and the people that you care about who you might not even know what their levels of risk are.

And then the other thing I want to add in terms of things to do is that to think about how ‑‑ what, what actions you’re capable of to oppose the passage of anti‑encryption laws, to oppose the passage of laws that target sex working people and people of color and people in marginalized communities, and to think about if you feel as though you have a lower level of risk of being targeted by law enforcement, that means that you have a greater capability for maybe going out and protesting! I have to tell you, I know a lot of criminalized people who do not feel safe protesting on the street, do not feel safe talking on un‑encrypted platforms, don’t feel safe talking on panels like this. And if you feel safe doing those things, then it’s your responsibility to do those things. So.

YVES: I mean, I don’t know if you were going to ask the next question, but like Lorelei and Kendra kind of talked about it a bit. I kind of just want to say if someone asks you, or like, it doesn’t matter if you don’t break the law, that’s not really a part of the issue, right? Like, laws, crimes, the things that we define as crimes are entirely arbitrary. Right? So who gets arrested, who gets criminalized, all of these things are… just simply based on who, like, the system is against. Which we know that that means Black, Indigenous, people of color, especially trans people, any gender non‑con forge ‑‑ gender nonconforming people, sex working people, anything that is outside the scope of what white supremacist culture would consider to be a good and appropriate person! Right?

So it’s not really about breaking laws. Or, you shouldn’t be afraid of anything if you haven’t done anything. Because it doesn’t matter. They’re going to criminalize people regardless of that. Right? They’re going to incarcerate people regardless of that. Like, all of these things are a death sentence to marginalized folks, which is why we kind of talk about it in this way. It’s not about, like ‑‑ well, I mean, it is about like surveillance is bad? It’s infringing on rights of people, right? But it’s also about the fact that surveillance is just like a tool that is used for policing, for incarceration, in order to just disappear whomever. Right?

So, when talking about that, surveillance is bad for that reason. For the reason, like, I talked about a little bit with contact tracing, right? That, in theory, should be a good thing. Should mean that we are keeping people safe. Should mean that people aren’t getting COVID, or are getting treated for COVID, are getting treated for HIV/AIDS. But we know that in a world where we have policing, that is simply not what happens! Right? It’s not a case of, will they use it? They will. They will use it, they will criminalize it, they will arrest people. So we want to get rid of it. Wholesale.

DANIELLE BLUNT: Yeah. And I think, too, when you talk about contact tracing in that capacity, I can’t help but think about the ways that data is scraped from escort ads to facilitate the de‑platforming across social media and financial technologies of sex workers and other marginalized communities, as well as activists. So I think both on the streets and on the platforms, like… This is not being used for good? And that it needs to end.

Okay. I’m gonna try and get one or two more questions in. Someone asked, do you think that EARN IT is going to be passed?

(all shrugging)

I think that’s our official comment!

KENDRA ALBERT: Yeah, for anyone that’s not watching the video or is not able to watch the video, there is just a lot of shrugging.

DANIELLE BLUNT: Yeah. But if you keep following Hacking//Hustling, we’ll keep talking about EARN IT and updates when they come, so. If you want to follow @hackinghustling on Twitter, that’s usually where our most up to date shit is.
Someone said, hypothetically, if someone wants to be a lawyer and is studying the LSAT and hoping to apply in the fall, should they not post publicly about these things or attend protests where you could be arrested?

KENDRA ALBERT: I can take that one. So, you can absolutely post publicly about these things. So the thing to worry about here is that the… like, for lawyers, is this thing called character and fitness, which is basically if you want to practice as a lawyer after you go to law school, you have to get admitted to one of the state bars, and state bars have particularly requirements. I actually don’t know a ton about how those interact with, like, a past history of sex work? But the sort of watch word in terms of thinking about character and fitness is honesty, generally speaking. Like, the goal ‑‑ folks generally ‑‑ pretty much most things are overcomeable through character and fitness, if you explain sort of what happened. So getting arrested at a protest, like, that’s ‑‑ you can totally still pass the bar and become a lawyer through that. Absolutely posting publicly about like abolition or sex work or, you know, those kinds of things.

You know, where I would start to sort of think about whether you want to talk to someone who has more experience about this than me is, um, if you have felonies on your word, or if you are sort of worried that you have any behavior that folks might use, might believe makes you less honest. So things like fraud convictions often come up. But I’ll stop there.

DANIELLE BLUNT: Awesome. And then I think this will be our last question, as we’re just at time. Any books recommendations along with Dark Matters: On The Surveillance of Blackness by Simone Browne? So sounds like folks are interested and want to learn more.

KENDRA ALBERT: This isn’t a book, but Alvaro Bedoya recently wrote a piece on The Color of Surveillance. It’s really amazing. So I recommend that.

DANIELLE BLUNT: Will you tweet that out? If folks say things, will you tweet them?


KORICA SIMON: I have a few books that I’ve ordered and I need to read, before the summer is over? Black Software: The Internet & Racial Justice, from the Afronet to Black Lives Matter. It’s talking about how technology can… Oh. Digital racial justice activism is the new civil rights movement. There’s Automating Inequality: How High‑Tech Tools Profile, Police, and Punish the Poor. Have you read that?

KENDRA ALBERT: It’s really good. I really recommend Automating Inequality.

KORICA SIMON: The last one is Race After Technology: Abolitionist Tools for the New Jim Code.

LORELEI LEE: I think I would add The Age of Surveillance Capitalism, which talks a little bit about the history of the development of some of these data collection tools.

DANIELLE BLUNT: Yves, did you have one you were saying or typing?

YVES: I mean, I would recommend there’s The Trials of Nina McCall, which is about sex work surveillance, and I think it’s the decades‑long government plan to imprison promiscuous women. I would also recommend, if you’re interested in learning more about how public health is weaponized as surveillance against marginalized communities, Dorothy Roberts writes a lot of stuff about this. So, yeah.

DANIELLE BLUNT: And ‑‑ that’s a beautiful place to end. Thank you, Lorelei, for sharing that. I feel like ‑‑ (Laughs) We’re all ‑‑ everyone’s crying. I’m crying. Speaking for everyone. (Laughs) If people want to be found online, or if you want to like lift up the work of the organizations that you work with, can you just shout out the @?

KENDRA ALBERT: @HackinHustling. It’s really great!

YVES: You’re fine. @redcanarysong, and @SurvivePunishNY.

DANIELLE BLUNT: Well, we are slightly overtime. Thank you so much to our panelists, and Cory, our transcriber, for sticking with us. I’m going to stop the livestream now, and stop the recording.


Lorelei Lee (they/them)is a sex worker activist, writer, recent law school graduate, and 2020 Justice Catalyst Fellow. Their adult film work has been nominated for multiple AVN awards and won a 2015 XRCO award. Their essays, fiction, and poetry have been published or are forthcoming in The Establishment, Denver Quarterly, $pread Magazine, Salon, Buzzfeed, n+1, WIRED, The Believer, and elsewhere. They are a contributor to the anthologies Coming Out Like a Porn Star, The Feminist Porn Book, Hustling Verse, and others. They were a founding member of Survivors Against SESTA, are a researcher and analyst with Hacking//Hustling, and serve on the steering committee of Red Canary Song.

Yves (they/she) is a queer and disabled Viet cultural worker and sex worker whose organizing home is with Survived & Punished NY, Red Canary Song, and currently FTA4PH. Yves comes from a background in Rhetoric and focuses on the study of collective and public memory and uses it as a framework for their work in art and organizing for prison/police abolition and the decriminalization of sex work.

Kendra Albert (they/them) is a clinical instructor at the Harvard Cyberlaw Clinic at the Berkman Klein Center for Internet and Society, where they teach students how to practice technology law by working with pro bono clients. They also have held an appointment as a lecturer, teaching classroom courses on the First Amendment as well as transgender law. Kendra holds a B.H.A from Carnegie Mellon University and a J.D. from Harvard Law School. They previously served on the board of Double Union, a feminist hackerspace in San Francisco and run a side business teaching people how to use their power to stand in solidarity with those who are marginalized. Kendra’s research interests are broad, spanning constitutional law, queer theory, video games, and computer security. Their work has been published in Logic, WIRED, and the Greenbag, and covered in The New York Times.

Korica Simon (she/her) is a third year law student at Cornell University and a fellow for the Initiative for a Representative First Amendment through Harvard’s Cyberlaw Clinic. This past year, she worked as a graduate teaching assistant for an information science course at Cornell called Information Ethics, Law, and Policy, where she taught a course around the ethics of up and coming technology and engaged with students on how the law should respond to these innovations. In addition, she has had the pleasure of working on sex worker rights issues through an internship at Legal Voice in Seattle and through the Cornell Gender Justice Clinic. After graduation, she’s hoping to become a privacy lawyer focusing on freedom of expression issues that marginalized communities face in the age of technological surveillance.

EARN IT Act – Harm Reduction Guide

With the EARN IT Act on the horizon we want to build power and community care. We compiled this quick harm reduction guide of things you can do right now to take care of yourselves and each other!

As we organize around our opposition to EARN IT, here are a few things harm reduction tips that you can do right now to stay connected and make sure you don’t lose important information and community.

  1. Remember- We don’t all trade sex under the same circumstances and not all of us have access to the same online tools. Not all of this may be applicable to you or how you work, so please take whatever is useful, ignore the rest and take care of each other!
  2. Social media is not a stable platform for sex workers. We are shadowbanned and loose accounts at a significantly higher rate than our peers. Having multiple ways to stay in touch with clients and community can help in the event of losing an account.
  3. It is important to stay connected! Start collecting e-mail addresses and build a mailing list. Having a list of how to get in touch with clients and community is helpful in case you lose access to your social media accounts.
  4. Back your shit up! Download backups of everything! You can archive your social media posts, google drive docs, website text, and images. Keep multiple backups if you can, including a hard drive.
  5. Direct clients to your e-mail! Ask clients what the best way to stay in touch is. Make sure your favorite clients know how to get in touch with you too!
  6. If your sex work account is deleted it’s not your fault!

Want to know more about why we oppose the EARN IT Act? Click here.

(These harm reduction tips, in response to the EARN IT Act, are visualized below on 7 tiles of light pink, blue and yellow background with the graphic of a web browser and a teal bar on the bottom with a heart on it)

Threat Modeling


What is Threat Modeling?

“A way of narrowly thinking about the sorts of protection you want for your data. It’s impossible to protect against every kind of trick or attacker, so you should concentrate on which people might want your data, what they might want from it, and how they might get it. Coming up with a set of possible attacks you plan to protect against is called threat modeling. Once you have a threat model, you can conduct a risk analysis.” – EFF

What are Threat Modeling Questions To Ask?

1.What do I want to protect?

2. Who do I want to protect it from?

3. How bad are the consequences if I fail?

4. How likely is it that I will need to protect it?

5. How much trouble am I willing to go through to try to prevent potential consequences?

What are other Threat Modeling Concerns?

What are my assets?

Who are my adversaries?

What are the threats of my adversaries?

What is the risk of ___ happening?

What does a sample Threat Model look like?

Example: Sex Work Provider in NYC

Assets: Photos, legal id, address, social media accts, email, communications, texts, bank acct, payment legers, contacts.

Adversaries: Cops, stalkers, family, exes, journalists, careless ppl, catfish, trolls, anti sex work ideologues, algorithms.

Threats: Location tracking spyware, doxxing, blackmail, report police, steal photos, intercept, falsified charge reason/arrest reason, reporting status as sex work provider to ‘vanilla’ job.