Enough About FOSTA's 'Unintended Consequences'; They Were Always Intended

from the it's-what-they-wanted dept

It feels inevitable that if you’re talking about FOSTA/SESTA (the federal law passed in 2018 that amended section 230), someone, at some point, will mention that it was aimed at combatting sex trafficking that had unintended impacts on folks doing consensual sex work.

Just to provide a few examples, there’s a law review article about FOSTA called “good intentions and unintended consequences.” Or you could look at the 2018 OC Register article called “The Unintended Consequences of a Well Meaning Anti-Sex-Trafficking Law” (complete with cliche sexy legs 🙄). Even Elizabeth Warren, in the announcement for the SAFE SEX Workers Study Act, said “As lawmakers, we are responsible for examining unintended consequences of all legislation, and that includes any impact SESTA-FOSTA may have had on the ability of sex workers to protect themselves from physical or financial abuse.”

But as @cybwhoregology has been pointing out, the narrative of “unintended consequences” is utter nonsense. Negative effects on sex workers (and there were many) were not “unintended.” The text of the law explicitly criminalizes the promotion of prostitution and it’s hard to argue that an interpretation of the law that was clear from its text is unintended. Sex workers and trafficking survivors were very clear about the likely outcome of FOSTA/SESTA prior to its passage. Finally, this narrative is contradicted by what the organizations that supported FOSTA say about their own goals.

1. FOSTA explicitly criminalizes the promotion/facilitation of prostitution that does not involve trafficking.

So the first conclusion I reach when I read these takes is that people have not even skimmed the text of the bill. I don’t really blame them - it’s pretty incomprehensible. But go take a look - the final text is here. I’ll wait.

Okay, do you see why it’s ahistorical to claim that negative effects on sex workers were unexpected? Just in case not, I’ll break it down for you.

Look at 18 U.S.C. §2421A - the bottom of the first page. This is a federal criminal provision, created by FOSTA, prohibiting promotion or facilitation of prostitution. Note that this does not require that any sex trafficking took place. The text clearly says that it is a federal crime to run a computer service with the intent to promote or facilitate prostitution of another person.1 You can have an aggravated violation under 2421A(b) if the website promotes or facilities the prostitution of 5 or more persons, OR acts in reckless disregard of the fact that such conduct contributed to sex trafficking.

I am going to repeat that point again. You can have a criminal charge under FOSTA, including an aggravated criminal charge, without any trafficking taking place at all. Just promotion or facilitation of prostitution (aka consensual sex work).

This concern is not merely hypothetical. The one criminal prosecution that has happened (US v. Martono, about CityXGuide) under 2421A just resulted in a plea deal where the defendant pled guilty to promotion of prostitution and conspiracy to facilitate prostitution. Although the Department of Justice talked about trafficking in their press release, they never ultimately charged Martono with trafficking, likely because they could not prove that he had the level of knowledge required.2

As if that wasn’t enough, FOSTA also changed Section 230 (the federal law that previously had limited internet platform’s liability) to also allow for state criminal charges against platforms based solely on conduct related to sex work, so long as the conduct underlying the charge is based on 2421A.3

You cannot pass a bill that creates additional federal criminal charges and removes immunity from state criminal charges for the promotion/facilitation of prostitution and then claim that negative effects on sex work were an accident! If the people who passed this bill, and those that advocated for it, didn’t want to harm sex workers, they shouldn’t have passed a bill that created additional crimes for the promotion of prostitution.4

2. Sex workers were incredibly clear about the likely impact of SESTA/FOSTA before and at the time of its passage.

The second reason that the narrative that the negative outcomes of FOSTA on sex workers was an unintended consequence is nonsense is because it requires erasing (or ignoring) the people who pointed out contemporaneously that the bills were going to harm sex workers.

If you want receipts, there is the Survivors Against SESTA page from 2018 that encouraged folks to call their Senators to explain how FOSTA/SESTA would harm sex workers. Survivors Against SESTA also produced a one-pager on why sex workers need online spaces. Oh, and here’s their one-pager on how FOSTA and SESTA would harm workers. New Orleans Harm Reduction has a page from 2018 where sex workers outlined materials as part of the social media campaign against FOSTA.

Media even covered these concerns! Here’s a contemporaneous article from Melissa Gira Grant quoting sex workers’ rights experts about the negative impact of either FOSTA or SESTA on sex workers. And there’s a FastCompany article with a tweet from Kate D’Adamo, who said “I was a #sexworker organizer for years in NYC. #FOSTA would undermine almost every single thing I would tell people for how to stay alive. ALL screening, ALL peer references, ALL bad date lists I could send. #SurvivorsAgainstFOSTA.”

It’s also worth checking out the #LetUsSurvive or #SurvivorsAgainstSESTA hashtag, where you can still find many of the posts that people made prior to FOSTA’s passage. (Although the historical record is obviously incomplete because of account deletions, caused in part by platforms’ fear of liability under FOSTA. I believe Alanis Morissette would call that ironic.)

FOSTA and SESTA were two bills that were advocated for by different organizations that were combined into one, giant, bad, law. If SESTA alone was passed, it would have been plausible to argue that anti-sex work effects were collateral damage to efforts to prevent sex trafficking, if not for the accurate predictions about consequences of the bill. In short, sex workers expected these consequences, and said quite clearly that these were the likely outcomes. To quote Bardot Smith, “WHORES TOLD YOU.”

3. Many of the people who advocated for the bill saw increasing the difficulty of engaging in consensual sex work as a feature of the bill, not a bug.

Content warning for language that ignores sex worker agency - skip the next paragraph if that’s harmful to you.

It’s not just that calling the effects unintended erases sex workers’ advocacy and labor. It also ignores the fact that some people who oppose “sex trafficking” often do want to eliminate all sex work. For example, one supporter of the bills was CATW (the Coalition Against Trafficking in Women). CATW explicitly seeks to end what they call “sexual exploitation,” which it defines as possible “only if no woman or girl is trafficked, exploited or prostituted in the sex trade.”5 So from the angle of organizations like CATW, as well as the National Center on Sexual Exploitation (formerly known as Morality in Media), and others, the harm to sex workers (who they often do not believe are legitimate stakeholders) is, in fact, a feature, not a bug. If you’re looking for a useful summary of how this dynamic plays out in reporting, I suggest this piece from WHYY Philadelphia. In it, someone who works for CATW and who is speaking from their experience being trafficked makes the claim that “Sex is not work, and work is not sex. And although I recognize that there is a population of people who self-identify as sex workers, it’s really a term that’s used to mask the inherent harms that come with prostitution.” That’s not a statement that is consistent with the idea that harm to sex workers is an unintended result of anti-trafficking efforts.

Of course, this debate goes back far further than section 230 -- it’s a rehashing of a set of conversations that took place during the white feminist sex wars of the 1970s. Far more eloquent people than I have written about how it is true that the binary between sex trafficking and sex work does not do a good job of capturing folks’ experiences, but that’s because it is a product of whorephobia. Whorephobia comes down to the idea that there is something uniquely damaging about work that involves sex, rather than the damage coming from society’s distaste for sex work and the stigma that comes along with that and criminalization.6 (Just to be clear -- there is not. Many of the harms that people articulate as coming from this kind of work come from criminalization itself, as well as the lack of affirming health and social services.) Fundamentally, it is impossible to truly respect and listen to sex workers and believe that the goal should be the elimination of sex work, unless you also believe that all work should be eliminated.7

To pull us back to FOSTA, I suspect most mainstream technology policy organizations (and reporters, and pundits/scholars) do not want to comment on or engage with the fact that some (but not, by any means, all) anti-sex trafficking organizations believe that all sex work is inherently exploitive or leads to sex trafficking. Thus, the argumentative move seems to be to suggest that the intentions of the people who promoted FOSTA/SESTA were good and the harm to sex workers was unexpected. I understand this from a realpolitik perspective -- the politics of the anti-trafficking space can seem complicated, and no one wants to appear to be pro-trafficking. And admitting you’ve caused harm is hard! However, again, pretending that prostitution was “accidentally included” or that FOSTA was a bill that was only aimed at ending what the law defines as sex trafficking is at best, revisionism.

Conclusion:

Most people who talk about FOSTA’s unintended consequences are not bad people, nor are they trying to erase or ignore sex workers. But the narrative that sex workers were “collateral damage” of an anti-trafficking bill is ahistorical and compounds the harm. Please, please, stop saying that the effects were unintended.

Did you find this post useful? Please throw some money at Hacking//Hustling, who has been working to cultivate a better understanding of the impacts of FOSTA. You can donate here.

Thank you to Danielle Blunt and Riana Pfefferkorn, who provided very helpful feedback on this post! All mistakes are my own.

Notes

  1. 18 U.S.C. §2421A(a). 

  2. Thank you to Kate D’Adamo, who pointed this out. 

  3. 18 U.S.C. §2421(a)(5)(C). 

  4. The empirical evidence is clear that criminalization harms sex workers. See, e.g., Platt, Lucy, Pippa Grenfell, Rebecca Meiksin, Jocelyn Elmes, Susan G. Sherman, Teela Sanders, Peninah Mwangi, and Anna-Louise Crago. 2018. “Associations between Sex Work Laws and Sex Workers’ Health: A Systematic Review and Meta-Analysis of Quantitative and Qualitative Studies.” PLoS Medicine 15 (12): e1002680. 

  5. This is from CATW’s description of their work 

  6. Melissa Gira Grant’s Playing the Whore: The Work of Sex Work is an excellent resource that more fully explores this idea. 

  7. This is an argument from Moses Moon (fka @thotscholar) Sex Work as Anti-Work body of thinking. You can read them more fully exploring it, in conversation with Lorelei Lee and Kitty Milford, here 

Originally posted to Kendra's personal blog.

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Filed Under: consequences, fosta, section 230, sesta, sex trafficking, sex work


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  • identicon
    Anonymous Coward, 29 Jul 2021 @ 12:05pm

    so, can we get Craigslist Personals for non-pros back?

    I never did understand why CL personals had to go away in the first place, other than 'cuz lawyers'.

    reply to this | link to this | view in chronology ]

  • icon
    danderbandit (profile), 29 Jul 2021 @ 12:32pm

    I didn't know it was going to do that!

    So plenty of 'lawmakers' saying 'unintended consequences', but none of them seem to be doing about those consequences.

    Seems like anything sex related is kind of a 3rd rail for pols if it means people having freedom to do what they want without the guvmint getting involved. To many people with the attitude of "I don't like that so YOU can't do it."

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 29 Jul 2021 @ 12:53pm

    'How could I have known the experts knew what they were saying?'

    If every expert and person in a field tells you 'if you pass your bill X will happen' and you pass that bill anyway you meant for X to happen. It may or may not have been your primary goal but it was something you considered at best an acceptable cost of that goal and as such you deserve no benefit of the doubt, no 'I didn't think that would happen' excuse or justification, you were told it would result from your actions and did them anyway.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Jul 2021 @ 3:39pm

    someone who works for CATW and who is speaking from their experience being trafficked makes the claim that “Sex is not work, and work is not sex. And although I recognize that there is a population of people who self-identify as sex workers, it’s really a term that’s used to mask the inherent harms that come with prostitution.”

    OK, sex work is inherently harmful, so we should stop people from doing it, even if they choose to do it voluntarily.

    Well... there's a lot of stuff that is arguably "inherently harmful", but we can choose to do it without criminal charges. Just off the top of my head:

    Alcohol consumption
    Cigarette smoking
    Cutting
    Excessive food intake
    Watching "Manos, The Hands of Fate"

    So... let's get to outlawing those as well, shall we?
    /s

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 29 Jul 2021 @ 5:04pm

      Re:

      Hey there with the Manos.... :/

      reply to this | link to this | view in chronology ]

      • icon
        Stephen T. Stone (profile), 29 Jul 2021 @ 5:55pm

        Watching the MST3K version is fine.

        Watching the original is voluntary brain damage.

        reply to this | link to this | view in chronology ]

        • icon
          That Anonymous Coward (profile), 29 Jul 2021 @ 9:23pm

          Re:

          Nope nope nope there was never ever a DVD in circulation with a menu that said PAIN / REAL PAIN
          Pain was MST3K Manos
          Real Pain was a very rare copy of the film as released.
          (Before someone else made it commercially available).

          The horror on peoples faces amused me so...
          er it would have if this DVD actually existed and made the rounds of people I knew...

          reply to this | link to this | view in chronology ]

    • icon
      BernardoVerda (profile), 29 Jul 2021 @ 5:18pm

      Re:

      "Singing is not work and work is not singing... it’s really a term that’s used to mask the inherent harms that come with the music industry."

      Funny how the logic falls apart, when it's not one's own personal "moral cause" that is being pursued (to protect the "victims" of course).

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Jul 2021 @ 5:05pm

    Yes.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Jul 2021 @ 5:13pm

    POSIWID

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Jul 2021 @ 6:00pm

    It's always easier to ask for forgiveness than permission. And in some cases you might not even need to ask for forgiveness.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Jul 2021 @ 7:08pm

    The early 1900s in the US when you could still mail order some cocaine and heroin and then head on down to the legal brothel must have been awesome.

    reply to this | link to this | view in chronology ]

  • icon
    Gorshkov (profile), 30 Jul 2021 @ 6:09am

    What's the difference?

    People all over the world, throughout history, have taken advantage of their own skills, talents and proclivities to earn a living. This is not new.

    So ....... what's the difference between me taking advantage of how my brain works in an office to earn a living, and somebody else taking advantage of how their body works in a bed to earn theirs?

    I am no more morally superiour to a prostitute than I am to a day laborer, both of whom use their physical rather than their mental skills

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 30 Jul 2021 @ 11:02am

      Re: What's the difference?

      Almost all societies have been utterly insane when it comes to sexuality sadly which means that anything involving sex has historically(and currently to a large degree) been seen as inherently 'tainted' and 'sinful'.

      As for what's the difference once you toss that insanity out the window nothing really, whether you're being paid to build a house or help someone let off steam you're still being paid for the use of your body and skills, and to the extent that sex work might be problematic those problems(it's not what you want to do or you're being exploited and forced to do it) would apply no matter what the job was.

      reply to this | link to this | view in chronology ]

      • icon
        JMT (profile), 30 Jul 2021 @ 3:57pm

        Re: Re: What's the difference?

        Can we just cut to the chase and blame religion?

        reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 30 Jul 2021 @ 4:29pm

          Re: Re: Re: What's the difference?

          I'm not sure how much blame it deserves globally for that problem but it's likely responsible for a good chunk of it, yes.

          reply to this | link to this | view in chronology ]

        • icon
          Uriel-238 (profile), 30 Jul 2021 @ 4:37pm

          Blaming Religion

          Christianity, and the Church (that is the Roman Catholic Church, before it had competitors) who integrated chastity and celibacy into their array of values and customs to differentiate itself from the alternatives.

          But their own clergy couldn't even manage their own standards, and it was never really enacted in good faith.

          So yes, we've had 1500+ centuries of established-church backed sexual dysfunction, which actually informs quite a bit of why western culture is so messed in the head.

          I can't speak for Islam, which is more messed up thanks to polygyny and an even more severe chattelization of women than Christendom. In the 20th century both cultures have been struggling with how to integrate modern feminist values into harshly misogynist cultures.

          reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 2 Aug 2021 @ 7:33am

        Re: Re: What's the difference?

        "Almost all societies have been utterly insane when it comes to sexuality sadly which means that anything involving sex has historically(and currently to a large degree) been seen as inherently 'tainted' and 'sinful'."

        Not all. At the bottom of it it's a control issue and the desire to control sexuality has always been, primarily, a patriarchal issue.

        Societies which put no great stock in property or land inheritance or which inherited through matriarchal lines are markedly more laissez-faire when it comes to sexuality.

        Mater semper certa est. Pater semper incertus est and all that. The mother always knows if it's her child. The father can't be sure if it's his. Thus patriarchal cultures with focus on property inheritance and family lines have always been focused around control over - specifically womens - sexuality.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Jul 2021 @ 12:34pm

    Fundamentally, it is impossible to truly respect and listen to sex workers and believe that the goal should be the elimination of sex work, unless you also believe that all work should be eliminated.

    all work should be eliminated

    (insert DiCaprio "you have my attention" meme here)

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Aug 2021 @ 4:06pm

    Wish your premise were true, because to the good!

    'Unintended Consequences'; They Were Always Intended

    Clearly writer and Techdirt are for prostitution, heedless of the human misery.

    @"SDM"

    Societies which put no great stock in property or land inheritance or which inherited through matriarchal lines are markedly more laissez-faire when it comes to sexuality.

    There have been no such since the Stone Age. They didn't bother with ANY "rights", just knocked whoever had something wanted over the head, if could. You should be sent to "live" with one of the few such surviving tribes.

    reply to this | link to this | view in chronology ]


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