by Elizabeth Railey
The implementation of new legislation, such as the FOSTA, has served to exacerbate the sex trafficking epidemic rather than to decrease its proclivity as intended. The release of the documentary I Am Jane Doe in February of 2017 exposed the online aspect of sex trafficking and ignited discussion about the lack of human rights protection provided by existing cyber legislation.[1] Section 230 of the Communications Decency Act of 1996, which protected companies from liability due to third party publications,[2] was widely criticized for not doing enough to protect victims of sex trafficking who were advertised and sold on websites such as Craigslist.com and Backpage.com. The New Yorker referred to Section 230 as a “legal shield” used by internet companies to evade responsibility of their role in enabling sex trafficking.[3] This misconception that Section 230 grants automatic immunity was countered by Doe v. Facebook and others, where Facebook’s motions to dismiss were denied, as the plaintiff argued that Facebook was negligent in “undertaking to protect potential victims of sex trafficking, and for knowingly facilitating and benefitting from the sex trade” which was deemed not protected by Section 230.[4]
Still, the public outrage sparked by the popular documentary pushed for harsher ramifications, and their requests were not ignored. On April 11, 2018 the “Allow States and Victims to Fight Online Sex Trafficking Act of 2017” or FOSTA was enacted which clarified that Section 230 “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.”[5] The passing of FOSTA caused the immediate removal of the “personals” section on Craigslist and similar websites which, at the time, seemed to be an enormous step in the right direction.[6] However, law enforcement officials’ ongoing investigations were halted, as their leads, along with incriminating evidence, simply vanished from the internet overnight. As a result of the new law, prosecutors “no longer have advertisements to subpoena, digital records to produce for prosecutors, and leads that can bring them to live crime scenes full of evidence, like hotel rooms.”[7] Furthermore, due to the outright deletion of such online services, no one has been able to prosecute any of these companies using FOSTA which undermined its central objective.
Additionally, consenting sex workers now fear for their lives daily as Bee, a former sex worker, explained in her report with Oxygen.[8] According to Bee, these online services were absolutely necessary to ensure her own safety as they allowed her to pre-screen customers and communicate with others in her line of work about certain clients to be weary of. Other sex workers shared her opinion and banded together to create their own, new social networking site called Switter, only to have it removed later by Cloudfare, the company they were using to implement the site, as Cloudfare feared it would face criminal liability under the new FOSTA guidelines.[9] Some commentators have noted that websites used for the screening of sex buyers remain in the same legal position they were in prior to the passage of FOSTA, provided that they do not facilitate or promote the prostitution itself.[10] What those with this view fail to recognize, however, is that websites such as Cloudfare and many others are not willing to take this risk when they cannot realistically ensure that every post is valid, which does leave sex workers without protection.
Ironically, the new law increased the risk of trafficking as pimps offer women some insurance as opposed to taking their chances on the street alone. The reality is that sex work, as well as trafficking, will not be abolished by the inability to advertise online, but rather will be pushed onto the streets with no record of the movement of trafficking circles. In the month following the enactment of FOSTA, “thirteen sex workers were reported missing, and two were dead from suicide” which is a significant increase from the previous months, and left law enforcement officials frustrated with no new leads to follow on the matter.[11] While FOSTA may have been enacted with good intentions, the repercussions that followed imposed greater challenges on victims of trafficking than had been present previously.
[1] I am Jane Doe (50 Eggs Films 2017).
[2] See Communications Decency Act of 1996 § 502, 47 U.S.C. § 230 (2012) (stating that “[no] provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”.)
[3] Tad Friend, “I am Jane Doe” Takes on Backpage, New Yorker (Jan. 8, 2017), https://www.newyorker.com/magazine/2017/01/16/i-am-jane-doe-takes-on-backpage.
[4] Eric Goldman, Section 230 Doesn’t End Lawsuit Claiming Facebook Facilitated Sex Trafficking-Doe v. Facebook, Technology and Marketing Law Blog, May 29, 2019, https://advance.lexis.com/api/document?collection=news&id=urn:contentItem:5W76-0051-JCMN-Y1HB-00000-00&context=1516831.
[5] Allow States and Victims to Fight Online Sex Trafficking Act of 2017, 115 P.L. 164, 132 Stat. 1253, 2018 Enacted H.R. 1865, 115 Enacted H.R. 1865 (Apr. 11, 2018).
[6] Daniel Kreps, Craigslist Removes Personal Ads After Sex Trafficking Act Passes, Rolling Stone, Mar. 23, 2018, https://www.rollingstone.com/culture/culture-news/craigslist-removes-personal-ads-after-sex-trafficking-act-passes-204835/
[7] Lura Chamberlain, FOSTA: A Hostile Law with a Human Cost, 87 Fordham L. Rev. 2171, 2175 (2019)
[8] Donyae Coles, Former Sex Worker Tells Us How a New Bill Will Hurt Her Community, Oxygen, Mar. 29, 2018, https://www.oxygen.com/very-real/former-sex-worker-tells-us-about-how-a-new-bill-will-hurt-her-community
[9] Mike Masnick, Sex Workers Set Up Their Own Social Network in Response to FOSTA/SESTA; And Now It’s Been Shut Down Due to FOSTA/SESTA, Techdirt, Apr. 20, 2018, https://www.techdirt.com/articles/20180419/16002239673/sex-workers-set-up-their-own-social-network-response-to-fosta-sesta-now-been-shut-down-due-to-fosta-sesta.shtml
[10] Shea M. Rhodes, Jamie Pizzi, and Sarah K. Robinson, SESTA/FOSTA Imposes Accountability on Internet Service Providers, Remains Misinterpreted by Many, The Hill, May 22, 2018, https://thehill.com/blogs/congress-blog/judicial/388694-sesta-fosta-imposes-accountability-on-internet-service-providers
[11] Mike Masnick, The Human Cost Of FOSTA, Techdirt, May 7, 2019, https://www.techdirt.com/articles/20190503/13180842135/human-cost-fosta.shtml