By: Charli Vark

The world’s oldest profession has thoroughly ensconced itself in the digital age.[1] Modern sex workers advertise online for any number of services, including mass distributed pornographic videos, anonymous steamy phone sessions, full-service sexual encounters, and more.[2] Many sex workers have escaped job-related violence and coercion by using the leverage of prolonged and distanced negotiation with clients over email or text.[3] Additional benefits include the flexibility to work from where they choose, rather than a street or other unsafe environs, as well as the opportunity to build a broad online sex worker community that shares such information as “bad dates” and where to get healthcare.[4] However, consensual adult sex workers have historically been caught up in human trafficking legislation, victimized by laws ostensibly passed to protect them.[5] This is particularly true of the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 and its partner, the Stop Enabling Sex Traffickers Act of 2017 (together, FOSTA-SESTA).[6] This package of legislation modified Section 230 of the Communications Act of 1934, which heretofore provided immunity to providers that let third parties publish their own content on providers’ platforms.[7] Despite proponents’ high hopes that FOSTA-SESTA would lead to increased accountability for child traffickers,[8] the legislation has instead seen next to no prosecutorial use.[9] Meanwhile the wave of restrictions by digital providers that have rendered FOSTA-SESTA practically global have made catching real traffickers more difficult and damaged the wellbeing of sex workers worldwide.[10]

Paired with the FBI seizure and shuttering of Backpage.com only five days before the legislation’s passage,[11] FOSTA-SESTA is widely acknowledged as the impetus for a wide swath of tech giants and popular websites to make sweeping changes to or entire deletions from their platforms, preemptively over-policing their users’ content in anticipation of liability for promoting or facilitating trafficking or prostitution.[12] Two of the first included Google, which deleted users’ private images and videos from its Drive cloud storage service, and Craigslist, which deleted its Personals section worldwide.[13] This outsized response by some of the most powerful and omnipresent entities in cyberspace would seem to indicate that the legislation is sharp enough to be an effective tool for the federal government.[14] However, as of yet there has only been a single prosecution for an aggravated case of facilitating or promoting trafficking or prostitution under FOSTA-SESTA, United States v. Martono.[15]

In its report to Congress on FOSTA-SESTA’s efficacy and impact, the Government Accountability Office (GAO) tallied eleven prosecutions against online platform providers for involvement in trafficking since 2014.[16] In addition to any other charges, all of these prosecutions included charges for money laundering, racketeering, or both – including Martono.[17] Martono also had the potential to be important caselaw should the defendant’s motion to dismiss on freedom of speech and/or void for vagueness grounds have had any effect.[18] Instead, the motion was denied and the defendant entered a guilty plea, a result which does little to clarify how a jury or a court would interpret the case.[19] Indeed, in contrast to this prosecution, FOSTA-SESTA has clearly hampered law enforcement from investigating and prosecuting actual traffickers, which as mentioned prior the government had been successfully prosecuting with charges of money laundering and racketeering.[20] Rather, the commercial sex market has fragmented onto social media sites, international hosting services, complex payment processors, etc., and made evidence collection against traffickers and their “promoters” more convoluted, costly, and time-consuming.[21]

Meanwhile, due to the global nature of the internet, sex workers outside the jurisdiction of the United States are feeling the tech industry’s response to FOSTA-SESTA.[22] Traditional sex workers like those who worked hot spots or on the street and had little to no access to technology to help with their work have reported little change in their daily lives, inside the U.S. or out.[23] However, in other high-income countries the internet is the preferred method for sex workers to ply their trade.[24] This makes sex workers in Canada and Australia almost as vulnerable to the tech industry’s reactionary freeze as their American counterparts.[25] Sixty percent of Canadian sex workers operated on Backpage.com and found themselves suddenly without a cyber storefront the day the site was seized, their livelihood decimated by the mere potentiality of American law.[26]

Currently, sex workers protect themselves with coded language, web services hosted in permissive jurisdictions, or specialized websites that take anti-trafficking measures, such as OnlyFans.[27] Even so, stability in an internet-based sex worker’s life is tenuous, as American-hosted OnlyFans demonstrated when it first declared that it would clear its service of adult content in an effort to go more mainstream, and then abruptly reversed its new policy in the backlash from the sex workers credited for the site’s success.[28] FOSTA-SESTA has these effects via the global tech industry’s reactions even in jurisdictions where sex work is legalized or decriminalized, the statuses associated with the best outcomes for sex workers.[29] Rather, sex workers in those jurisdictions polled about FOSTA-SESTA expressed that they felt less safe, made less money, and were less stable after its passage,[30] while police and support systems in multiple cities have reported drastic increases in street sex work.[31] Additionally, advocacy organizations dedicated to health and safety outreach for sex workers have been preemptively de-platformed for being vaguely facilitative of sex work.[32]

Data indicates increased health and wellness for sex workers through transparency and destigmatization of their profession,[33] but the tech industry’s disproportionate response to FOSTA-SESTA pushes sex workers all over the globe further into the shadows. [34] In addition, law enforcement has found the law to be more hindrance than help in cleaning up trafficking, and it remains untested in court despite its global influence.[35]

[1] See Heidi Tripp, Comment, All Sex Workers Deserve Protection: How FOSTA/SESTA Overlooks Consensual Sex Workers in an Attempt to Protect Sex Trafficking Victims, 124 Penn St. L. Rev. 219, 220-23 (2019).

[2] See id. at 222-23.

[3] See T. Bernier et al., The Use of Information and Communication Technologies by Sex Workers to Manage Occupational Health and Safety: Scoping Review, J. Med. Internet Rsch. 2 (2021).

[4] See id. at 2, 7 (researching the various health outreach sex workers do and do not respond to through technology).

[5] See Tripp, supra note 1, at 230 (explaining the conflation of trafficking with consensual sex work, particularly in legal arenas).

[6] Allow States and Victims to Fight Online Sex Trafficking Act of 2017, 18 U.S.C. 2421A; Stop Enabling Sex Traffickers Act of 2017, 115 S. 1693.

[7] 47 U.S.C.S. § 230(c)(1) (providing publisher status to platform providers, rather than holding them liable as authors of user-generated content).

[8] See Tripp, supra note 1, at 232-33.

[9] See U.S. Gov’t Accountability Off., GAO-21-385, Sex Trafficking: Online Platforms and Federal Prosecutions (2021).

[10] See id.; see also Bernier, supra note 3, at 9.

[11] See U.S. Gov’t Accountability Off., supra note 9.

[12] See Tripp, supra note 1, at 237 (asserting that even the potentiality of having to police adult content as possible trafficking content was too burdensome for providers, causing them to lockdown and clean up their services).

[13] See Aja Romano, A new law intended to curb sex trafficking threatens the future of the internet as we know it, Vox (Jul. 2, 2018, 1:08 PM), https://www.vox.com/culture/2018/4/13/17172762/

fosta-sesta-backpage-230-internet-freedom.

[14] See Tripp, supra note 1, at 232-33, 235 (explaining the history of FOSTA-SESTA and its resulting effect on the tech industry).

[15] See United States v. Martono, No. 3:20-CR-00274-N-1, 2021 U.S. Dist. LEXIS 1340 (N.D. Tex. Jan. 5, 2021).

[16] See U.S. Gov’t Accountability Off., supra note 9, at 12.

[17] See id. at 48.

[18] See Martono, 2021 U.S. Dist. LEXIS 1340, at *5, 7-8 (holding that promoting prostitution in general is distinct from the unprotected speech of promoting the prostitution of another and declining to provide a more specific definition for prostitution than prior decisions).

[19] See R. & R. in re. Plea of Guilty at 1, see also United States v. Martono, No. 3:20-CR-00274-N-1, 2021 U.S. Dist. LEXIS 1340.

[20] See U.S. Gov’t Accountability Off., supra note 9, at 21, 46-49 (“[T]he FBI’s ability to identify and locate sex trafficking victims and perpetrators was significantly decreased following the takedown of backpage.com.… Further, obtaining evidence from entities overseas may be more cumbersome and time-intensive, as those who control such platforms may not voluntarily respond to legal process, and mutual legal assistance requests may take months, if not years….”).

[21] See id. at 14-15, 20-25 (“[C]ontrollers of many online platforms relocated their platforms overseas in an attempt to shield themselves from U.S. prosecution.  More specifically, the controllers… shut down or suspended operations in the United States while others moved their operations overseas…. [M]any of those who control these platforms moved their web servers, web hosting services, and the registration of their domain names to countries where prostitution is legal.”).

[22] See, e.g., Bernier et al., supra note 3, at 9; see also Mark Serrels, Thanks to US laws, sex workers are fighting to stay online, CNet (Feb. 26, 2021), https://www.cnet.com/features/thanks-to-us-laws-sex-workers-are-fighting-to-stay-online/; Danielle Blunt & Ariel Wolf, Erased: The Impact of FOSTA-SESTA & the Removal of Backpage on Sex Workers, Anti-Trafficking Review, 7 (2020).

[23] See Blunt & Wolf, supra note 17, at 12.

[24] See Bernier et al., supra note 3, at 9.

[25] See id. at 9; see Serrels, supra note 22.

[26] See Bernier et al., supra note 3 at 9.

[27] See U.S. Gov’t Accountability Off., supra note 9, at 15-20; Documenting Tech Actions, Survivors Against SESTA, https://survivorsagainstsesta.org/documentation/ (last visited Sep. 19, 2021) (listing sites that may permit sex workers to perform services if they prove they are consensual adults by verifying with a W9 or official ID).

[28] See Lateshia Beachum, Their OnlyFans checks are clearing, but some sex workers wonder whether their futures lie elsewhere, Wash. Post (Sep. 2, 2021, 4:19 PM), https://www.washingtonpost.com/dc-md-va/2021/09/02/their-onlyfans-checks-are-clearing-some-sex-workers-wonder-whether-their-futures-lie-elsewhere/.

[29] See Jessica McCann et al., Sex Worker Health Outcomes in High-Income Countries of Varied Regulatory Environments: A Systematic Review, Int’l J. Env’t Rsch. Pub. Health (2021) (showing a direct and heavy correlation between negative health outcomes and criminalization of sex work).

[30] See Blunt & Wolf, supra note 22, at 17-18.

[31] See Daisy Soderberg-Rivkin, The Lessons of FOSTA-SESTA from a former Content Moderator, Medium (Apr. 8, 2020), https://medium.com/@Daisy_Soderberg_Rivkin/the-lessons-of-fosta-sesta-from-a-former-content-moderator-24ab256dc9e5; see also Karol Markowicz, Congress’ awful anti-sex-trafficking law has only put sex workers in danger and wasted taxpayer money, Bus. Insider (Jul. 14, 2019, 8:38 AM), https://www.businessinsider.com/fosta-sesta-anti-sex-trafficking-law-has-been-failure-opinion-2019-7.

[32] See Survivors Against SESTA, supra note 27 (listing sex worker community support sites that have been de-platformed).

[33] See McCann et al., supra note 29.

[34] See Blunt & Wolf, supra note 22, at 19.

[35] See U.S. Gov’t Accountability Off., supra note 9, at 21.