Erased – The Impact of FOSTA-SESTA and the Removal of Backpage 2020

Abstract: A few days after Backpage was shut down by federal authorities,Public Law 115-164, better known as FOSTA-SESTA, became US law in 2018.The stated goal of this law was to reduce human trafficking by amending section 230 of the Communications Decency Act. What the law has actually done is put increased pressure on Internet platforms to censor their users. While the law has been lauded by its supporters, the communities that it directly impacts claim that it has increased their exposure to violence and left those who rely on sex work as their primary form of income without many of the tools they had used to keep themselves safe. In this sex worker-led study, Hacking//Hustling used a participatory action research model to gather quantitative and qualitative data regarding the impact of the removal of Backpage and the passage of FOSTA-SESTA on two groups of sex workers: those who work online, and primarily street-based sex workers who have limited access to technology. The results of our online survey (98 participants) and street-based survey (38 participants) indicate that the removal of Backpage and FOSTA-SESTA have had detrimental effects on

Key Words: Trafficking, Sex Work, Prostitution, FOSTA-SESTA, Tech, Sex Trafficking, CDA 230, Internet, Content Moderation, Gig Economy, Public Health, Platform Policing

Introduction and Literature Review

Sex Work and Labor Trafficking

We begin from this premise: under capitalism, all labor is vulnerable to hyper-exploitation. The risk of exploitation is increased in criminalized economies that lack labor protections, such as sex work. Many individuals who have traded sex live at the intersection of marginalized identities and may have limited access to other sources of income or employment due to stigma, discrimination, and lack of social support (White Hughto, Reisner, and Pachankis 2015). In this way, sex workers face a similar risk of exploitation, as do undocumented laborers who perform domestic and agricultural work.

What is the Definition of Sex Work?

“Sex work” is a broad term used to describe exchanges of sex or sexual activity. Sex work is also used as a non-stigmatizing term for “prostitution,” but in this report we use the term in its broader meaning. Using the term “sex work” reinforces the idea that sex work is work and allows for greater discussion of labor rights and conditions. Not every person in the sex trade defines themselves as a sex worker or their sexual exchange as work. Some may not regard what they do as labor at all, but simply a means to get what they need. Others may be operating within legal working conditions, such as pornography or exotic dancing, and wish to avoid the negative associations with illegal or informal forms of sex work. In addition to the exchange of money for sexual services, a person may exchange sex or sexual activity, or things they need or want, such as food, housing, hormones, drugs, gifts, or other resources. “Survival sex” is a term used by many non-profit organizations and researchers to describe trading of sex for survival needs.
— Meaningful Work: Transgender Experiences in the Sex Trades

Anti-Trafficking Legislation in the United States

The United States government has attempted to protect individuals from sexual exploitation through anti-trafficking legislation. In the United States, the Federal Victims of Trafficking and Violence Protection Act (TVPA) of 2000 defines trafficking as ‘‘the recruitment, harboring, transportation, 2 provision, or obtaining of a person for the purpose of a commercial sex act.” (TVPA 2000, Sec. 103(8)). The TVPA does distinguish this from “severe forms of sex trafficking” by stating that it is “(A) sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age; or (B) the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.” (Chapman-Schmidt 2019)

How is Trafficking Defined?

Under these two definitions, any and all persons who trade sex for money may be considered “trafficked,” irrespective of the circumstances under which they engage in this work. In addition, any individual under the age of 18 who is involved in commercial sexual activity is defined as a victim of sex trafficking, (Child Welfare Information Gateway. 2016) regardless of how the individual defines their experience. Many individuals who have histories of trading sex as a minor do so to acquire needed resources and to escape abusive living situations, facing no explicit external force, fraud, or coercion, other than the need to survive. (World Health Organization. 2015) LGBTQ youth, who often face housing insecurity due to familial rejection, are seven times more likely to have experiences of trading sex for a place to stay than their heterosexual counterparts (Dank 2015). These individuals are labeled trafficking victims by the state and processed through the criminal justice systems or family court systems under the “safe-harbor” laws.

What are safe-harbor laws?

Safe Harbor Laws is a provision of a statue that a specific action does not violate a rule or law. For example under SafeHarbor laws prevent a young person trading sex for being arrested for prostitution and directs youth who trade sex to ‘non-punitive’ social services.

The Anti-Trafficking Lobby’s Singular Focus

The singular focus of the anti-trafficking lobby on sex trafficking has been criticized for ignoring the complex forms of labor trafficking that occur in other labor sectors that outnumber cases of sex trafficking (Wolf 2018). The fact that those experiencing labor trafficking in any industry are also more vulnerable to sexual abuse, with no legal recourse, is also highly overlooked (Global Freedom Center).

Who is impacted by anti-trafficking rhetoric?

Many sex workers have argued that, in practice, the impact of anti-trafficking laws is opposite to their stated intent (protecting vulnerable populations). Anti-trafficking rhetoric and policing tactics disproportionately affect migrants, the insecurely employed, trans women, and women of color. In Brooklyn, 89% of the arrests for loitering for the purposes of prostitution were of women of color, many of them trans women who were then processed in the Human Trafficking Intervention Courts (HTICs) (White et al. 2017). Sex workers who cross borders for employment are also at high risk for being arrested and labeled either traffickers (M. Smith and Mac 2018) or victims of trafficking. These arrests and legal proceedings disrupt these workers’ ability to earn a living and thus lead to increased, rather than decreased, vulnerability (M. Smith and Mac 2018).

The harms of policing on street based sex work

There is a significant body of research that illustrates the harm caused by the policing of sex work on the street (Platt et al. 2018). In addition, anti-trafficking laws criminalize the very people whom sex workers depend on for safety and support. When a partner or family member provides housing, transportation, safe calls, or financial support to someone trading sex, this person under current legal definitions can be considered a trafficker. At the same time, many people in the sex trade report on complexities of experience regarding exploitation, force, and coercion that are not adequately addressed in the federal definition of trafficking (M. Smith and Mac 2018). By defining all sex workers as victims of a criminal network, rather than as individuals attempting to survive under capitalism, the state claims power to intervene, surveil, and control rather than address the root causes of trafficking: poverty and vulnerability.

Why decriminalize sex work?

For sex workers, one of the many benefits of a decriminalized market place is the ability to negotiate with clients. Due to fear of law enforcement, street based sex workers often have less then five minutes to discuss what services they offer, what the prices for those services are, set boundaries and vet potential clients (Krüsi et al. 2012). An Internet-based model has allowed workers to be more forthright in their advertising, negotiate costs and services prior to meeting and establish boundaries. Still, online sex workers are hesitant to speak directly about the services they offer because of fear of stings by undercover police. Without the ability to speak freely and clearly about what services they are willing to provide, many sex workers reported that they risk miscommunication with clients that could lead to violence or lack of payment.

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