Both bills FOSTA (HR 1865 ) and SESTA (SB 1693) became one law on April 11th, 2018. It is Public Law No: 115-164
That exact wording can be found here:https://www.congress.gov/115/plaws/publ164/PLAW-115publ164.pdf
This Act is actually now popularly titled: ‘‘Allow States and Victims to Fight Online Sex Trafficking Act of 2017’’ it is essentially the amended culmination of FOSTA (HR 1865 ) and SESTA (SB 1693).
The short of it: this Act exists: To amend the Communications Act of 1934 to clarify that section 230 of such Act does not prohibit the enforcement against providers and users of interactive computer services of Federal and State criminal and civil law relating to sexual exploitation of children or sex trafficking, and for other purposes.
Central point of concern for harm reduction and sex working people online:
Section 5 of the law states: ENSURING FEDERAL LIABILITY FOR PUBLISHING INFORMATION DESIGNED TO FACILITATE SEX TRAFFICKING OR OTHERWISE FACILITATING SEX TRAFFICKING.
This Act also makes allowances for States Attorneys to specially prosecute these cases. It is a very vaguely worded law, but its specified targets are online platforms, websites, companies/corporations behind site hosting. That being said, we know the broad and dangerous implications of such targeting.
What has FOSTA/SESTA criminalized?
- This bill has expanded liability for internet platforms which host content generated by third parties around holding that information. While the bill creates liability for those websites for “knowingly facilitating sex trafficking,” there is not clarity for what that means. It also allows more people to file civil suits against websites.
- People who own/operate/maintain websites which host third party content, listservs, (and maybe apps? Jury’s still out… or hasn’t been bought in yet), which promote and facilitate prostitution are subject to a federal crime. What’s facilitating prostitution? Also unclear. The bill being vague is a part of the problem.
What does this mean?
- Websites which engage with the sex trade have to assess their liability of holding content related to the sex industry. Right now, each website is making its own calculations, with the threat of very expensive litigation hanging over their head.
- This means holding your content just became a HUGE challenge for them. Right now we are seeing companies assess their risk and determine what they can and cannot hold in light of potential litigation.
Am I at a higher risk of being criminalized?
- Individual workers are not directly in the line of fire because of SESTA/FOSTA. This means that if police want to target workers on websites, the number of websites to choose from just got smaller.
- If you own, maintain, or operate a listserv/website with third party content, your risk may have increased.
- Exchanging sexual services for resources is illegal in every state including buying, selling, and people who help make that happen. Agreeing to engage, even without making the exchange, is considered “solicitation” and is also illegal.
- Click here for a more focused Know Your Rights for law enforcement and system interactions
Please remember that there are countless arrests for those who trade sex every single day. While we discuss access to safer spaces we cannot forget that this is based on the experience of criminalization which disproportionately impacts communities of color, migrants, LGBTQ-GNC folks, and people with disabilities. This is one piece of a larger conversation on how we fight the systems which police and oppress spaces, communities and bodies. If you are feeling the weight and fear of criminalization in a new way, it is an opportunity to join these fights and commit to solidarity with a new passion and heart.
What are some things I can do?
- Find your community locally. As we lose more and more spaces to communicate, commit to building new ones – which means reaching out to those around you.
- Diversify your income. This means different advertising venues, different forms of work or different personas. Create a safety net, not a tight rope.
- Read the Terms of Service – right now, platforms are thinking about their liability and then kicking off who might be a red flag for them. Put yourself in their shoes – when you look at your presence, would it stand out?
- Back up your stuff! As platforms delete things, you don’t want to lose your information.
- Do not ever, for once, accept that you or your life or your safety does not matter. We are all making a lot of decisions right now. You are the expert in your situation and know what makes you feel safest. Do what you have to do, and know that if something happens – if you took a client you weren’t sure about, shifting screening, tried a new gig and something went wrong – it is not your fault. You matter and people care.
- Document your story. How did this impact you? What did you do to survive? We’ll be building a spot to share your story, if you would like it used in advocacy moving forward, but in the meantime – your story is important.
Are websites being raided?
- Not as far as we can tell/corroborate. When sites are “raided” they are seized by the government, owners are generally arrested, and the sites go down. This is what happened in the case of Backpage, Rentboy and MyRedBook. All of these sites were raided by the federal government on federal charges. The federal government does not have a prostitution law, and therefore does not even have the jurisdiction to prosecute for prostitution. They also aren’t super interested in individual workers.
- None of those raids required SESTA. Not even Backpage, which was seized the day before the law was signed.
- Local and state law enforcement may be conducting stings on a smaller number of sites – this is not new. This does not require the involvement of the websites, but simply law enforcement contacting advertisers and trying to set up a date.
- Websites which have information regarding those who advertise on their platforms have always been subject to subpoena. This includes your ID, credit card information, pictures and ad copy.
Information sourced with permissions from Survivors Against SESTA