The Electronic Frontier Foundation on Thursday announced it is suing to invalidate a recently passed law that is meant to fight online sex trafficking.
The Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (FOSTA), which was passed 97-2 by Congress in March and signed into law in April, is meant to bar online sex trafficking.
But the EFF argues that its vague language actually criminalizes online resources for legal sex workers – and even hinders efforts to aid sex trafficking victims.
“Although the law was passed by Congress for the worthy purpose of fighting sex trafficking, its broad language makes criminal of those who advocate for and provide resources to adult, consensual sex workers and actually hinders efforts to prosecute sex traffickers and aid victims,” David Greene director of Civil Liberties at the EFF, said in a post.
FOSTA and a parallel similar bill, the Stop Enabling Sex Traffickers Act (SESTA), were created after a controversy revolving around Backpage.com spurred backlash against websites harboring illegal trafficking content.
Backpage, which was infamous for advertising sex workers and had faced several controversies around illegal sex work, was found guilty for allowing ads for child trafficking in January 2017.
FOSTA specifically makes it a criminal act to own, manage or operate an online service that is either promoting or facilitating the prostitution of other people. The proponents of the act, World Without Exploitation, argue that the law allows law enforcement and survivors to “seek justice against websites that under current federal law can host sex ads for trafficked children and adults.”
“To the websites that for years have hidden behind Section 230 and profited from the sale of vulnerable women and children, know that your time has run out,” said Lauren Hersh, national director and co-founder of WorldWE in a statement about FOSTA in March.
— End Trafficking (@EndTraffick) March 26, 2018
The acts expand upon a previous law targeting illegal sexual acts, the Mann Act, which formerly only made it illegal to physically transport a person across state lines for the purposes of prostitution.
While the act has good intentions, its language is vague and fails to differentiate between a critical difference: the difference between sex trafficking and consensual sex work.
The EFF in its Thursday post argued that sex workers themselves have been put in danger by the new law, as it results in “[sex workers] being driven back to far more dangerous street-based work as online classified sites disappear, to the loss of online ‘bad date lists’ that informed sex workers of risks associated with certain clients, to making sex less visible to law enforcement, which can no longer scour and analyze formerly public websites where sex trafficking had been advertised.”
The act also hits at Section 230 of the Communications Decency act, which essentially shields website operators from liability for content posted by others, said the EFF. Since the legislation was signed, the impact on the internet has been apparent: Days after FOSTA was passed, Craigslist took down its “personals” section from its platform, saying that it can’t risk continuing to run the platform under FOSTAas “any tool or service can be misused.”
Meanwhile, Reddit banned several subreddits – including r/escorts and r/hookers, while several other escort services, such as Cityvibe and Pounced.org shut down all together.
Other larger tech companies started scouring their websites of adult content. In late March, Microsoft announced a change in policy that removed adult content from its services (including cloud storage products and Skype). Instagram, meanwhile, curbed pictures using stripper related hashtags (like #stripper).
Opposition and Future
The legislation has been met with opposition by free speech advocates, to several technology companies (most notably Google), all the way to sex workers.
“FOSTA chills sexual speech and harms sex workers,” Ricci Levy, president and CEO of Woodhull Freedom Foundation, said in a statement.”It makes it harder for people to take care of and protect themselves, and, as an organization working to protect people’s fundamental human rights, Woodhull is deeply concerned about the damaging impact that this law will have on all people.”
Moving forward, the EFF has challenged the law as an unconstitutional violation of the First and Fifth Amendments.
Because of the critical issues at stake, we are asking the court to declare that FOSTA is unconstitutional and that the government be permanently enjoined from enforcing it.
For more information on the case, visit https://t.co/8bcE1OoYtI
— EFF (@EFF) June 28, 2018
“We have asked the court to preliminarily enjoin enforcement of the law so that the plaintiffs and others can exercise their First Amendment rights until the court can issue a final ruling,” the company said in a statement.