Escorting FOSTA-SESTA Out of Public Law

By Caroline Sha

Colloquially known as the “oldest occupation in the world,” sex work has existed for centuries in almost every part of the world. From references in the Hebrew Bible to the yūjo of Japan, prostitution has had some manifestation wherever humans have settled. In the modern day, prostituion remains pervasive, with 40-42 million people in working in the field. Although some countries, such as Germany, have legalized it, sex work remains punishable by law, both for the solicitor and worker, in many other nations, including the United States.

However, despite the illegality of their work, it is estimated that in the United States, there are one to two million prostitutes. They solicit clients on the street, online, or in the case of Nevada, through legal adult brothels. While most sex work transactions occur between two consenting adults, sex trafficking (in which people, especially women in children, are forced into prostitution) often uses the same channels and networks as consensual sex workers. In response to this problem, Congress passed FOSTA-SESTA on April 11, with Amy Wagner as a key sponsor. This piece of legislation subverts parts of Section 230 of the Communications Decency Act, passed in 1996, which ensured that websites could not be held accountable for content users post. Under this new law, if ads for prostitution are found on a website, the site’s publishers can be held legally liable for it. Supposedly, this will help stop trafficking, as websites, fearing legal action, would shut down any avenues for sex work advertisements on their websites, both consensual and non-consensual. 

Yet, for a law that’s intended to combat sex trafficking, FOSTA-SESTA worsens the problem. When traffickers are pushed off the internet onto the dark web and on the street, law enforcement officers have a harder time gathering evidence of trafficking and finding trafficking victims in the first place. According to a 2018 State Department report, the internet has made it easier to identify victims of trafficking, allowing for the identification of 58,000 more victims worldwide from 2011 to 2017. This phenomenon is possibly due to the increase in victims advertised online rather than in physical manifestations. Hence, taking such a resource from law enforcement would be detrimental. Moreover, websites who have hosted ads by traffickers have been able to aid law enforcement, providing valuable pieces of evidence to investigations. Proving sex trafficking already requires a high burden of proof, and without this digital evidence, it may be harder for traffickers to be brought to court. Considering the already miniscule number of traffickers convicted, with conviction rates as low as 8% in Massachusetts since 2011, this law only further muddles the legal path to achieving/obtaining a conviction. 

Even though Amy Wagner claimed that trafficking ads have decreased by 90% because of this law, in reality, she is referencing data regarding all sex work ads, not just trafficking ads. What’s more, the 80% drop in ads occured right after the shutdown of Backpage, a site used by many sex workers, which came before FOSTA-SESTA, and the percentage of sex work ads has been steadily rising back to its original levels ever since, partially because of the rise of other sites that can be used for the same reason. Having all these major websites used for solicitation shutting down or getting rid of certain parts of themselves are doing little to tackle the major issue  

In addition to its inefficiency, FOSTA-SESTA is instead putting sex workers, who already experiance an incredible amount of risk, in more danger. Websites such as Craigslist and Backpage allowed for prostitutes to make transactions that were safer than street work. With technology, they could screen possible clients beforehand by messaging them and negotiate safer sites of work. Or, sex workers could share “bad date lists” in which clients who were aggressive or possibly dangerous are named, allowing for prostitutes to lower their chances of something going wrong on the job. Now, without the protection of online tools, many sex workers are moving back onto the streets, which makes them a greater target for predators. Already a very vulnerable population, sex workers who engage in consensual transactions have just had their lives put in more peril. 

Furthermore, by holding websites liable for ads promoting consensual sex work as well as nonconsensual, law enforcement may waste more resources on targeting voluntary sex work instead of trafficking. Rather than helping end trafficking, as the law was promised to do, we will end up diverting valuable resources towards exchanges that aren’t related to sex trafficking; this will end up lowering the amount of victims identified even more and hurt the finding and prosecuting of traffickers even more. Though websites should of course be held accountable for when they knowingly enable trafficking, as in the case of Backpage, they should not be punished for hosting voluntary sex work ads which ultimately makes the lives of so many sex workers safer. 

If the United States wants to truly combat sex trafficking, efficient reform must be made, starting from the civilian level to the legal system. To start, in order to actually identify more victims, the public must be informed on the signs of trafficking and how to report it. Though law enforcement is able to do things like go undercover to find victims, having citizens who are able to identify signs of trafficking themselves would facilitate the process. Even so, even with a higher number of identifications, the courts should also be reformed so that prosecuting and convicting traffickers is easier. In some states, their attorney generals aren’t even allowed to prosecute these cases, leaving the burden of trying and convicting on district and county attorneys, who may be less equipped to go through these cases. Combined with law enforcement who may have not gotten the proper training to identify and deal with trafficking cases, a gross overhaul of the legal system is required. Finally, in order to decrease the amount of sex trafficking in the United States, more support needs to be given to victims, who may have no means of supporting themselves or may be too scared to speak out. There are many ways to help stop trafficking but FOSTA-SESTA is not one of them. 

Furthermore, one of the major ways to help the population this law was meant to protect is to decriminalize the profession. Laws that make sex work illegal, even if they are sometimes meant to decrease the violence prostitutes face, only end up worsening the dangers for them. First off, the criminalization of enablespolice harassment; many sex workers report being assulted by law enforcement and being exploited for things such as money or food in exchange for not being arrested. In addition, when sex workers are arrested or fined for their work, it can end up taking some sex workers away from their families and lowering the amount of income they recieve to support the aforementioned families. Many prostitutes go into the business because they don’t have another more reliable source of income so by imposing penalties on the field, the livelihoods of some of the most vulnerable people are completely hurt. In addition, if sex workers are given a criminal record for their work, their chances of finding housing and other employment are decreased dramatically, further decreasing the quality of life for them. Compounding the rationale for decriminalization, a legitimate market would empower prostitutes to take more control of their transactions. By making the field decriminalized, sex workers have more of a voice to do things like demand the usage of condoms, which decreases incidence of STD’s. And perhaps most importantly, the criminaliztion of sex work encourages violence against sex workers because in order to avoid arrests, they may move more underground, giving them less autonomy over things like where they work. Furthermore, this also compels prostitutes to not seek legal help when they do experience violence, either out of fear of arrest and police abuse, or simply because law enforcement officers are less impelled to investigate such crimes. We can’t decrease the amount of violence against this vulnerable group if we have set up a legal framework where victims won’t come forward. In order to truly help voluntary sex workers, we must decriminalize the profession. 


And to answer those who truly believe that we must lessen the prevelance of sex work, the solution is not to focus on criminalization, but to solve the issues that compel so many to turn towards it. Though stopping people who truly want to be in this profession would be a major violation of their rights, alleviating problems like inequality may decrease the number of those who turn to sex work out of desperation. Poverty and a lack of a social support net are major reasons for why so many become sex workers. Instead of making laws that just endanger those already involved in the field and wasting resources on enforcing a ban on prostitution, the United States government should focus on passing legislation that would give people alternatives to sex work. For example, by strengthening our education system, especially in lower performing schools by allocating sufficient funding to them, we can help equalize the imbalance in educational opportunity that faces our country today. 

In the end, the prohibition of sex work ends up endangering the very people they are said to protect and laws like FOSTA-SESTA end up exasperating the risks sex workers already face. Sex trafficking, especially of children, is a pressing issue that must be solved but FOSTA-SESTA is not the answer. A fundamental change in the legal system is required to truly make a dent in this issue; we should not be punishing sex workers by making their lives more dangerous because of our failure to make effective legislation. In the bigger scope of things, laws like this which implicitly continue the crimilization of sex work also only expose the need to actually decriminalize the profession. By making sex work not punishable by law, not only can we improve the lives of prostitutes but focus more resources on things that actually matter. It is time to take into account the lives of those we claim to protect for once and actually help them. We must repeal FOSTA-SESTA and decriminzlize sex work instead of feigning empathy with harmful laws.