Critiques of FOSTA: Combating Sex Trafficking or Redirecting the Problem?
On April 11, 2018, President Donald Trump signed the Allow States and Victims to Fight Online Sex Trafficking Act of 2017. The Bill explicitly distinguishes section 230 of the Communications Act of 1934, by explaining that section 230 will no longer protect websites that “promote and facilitate” sex trafficking. It amends section 230 to ensure that federal civil claims, federal criminal charges, and state criminal charges will not be limited for conduct that constitutes sex trafficking. Additionally, the Bill imposes new penalties for individuals who own, operate, or manage a website that promotes or facilitates prostitution or sex-trafficking. The penalties include a fine and/or a ten-year prison sentence. Enhanced penalties have been amended for individuals who (1) promote or facilitate the prostitution of five or more people or (2) act with reckless disregard that the conduct contributes to sex trafficking. These penalties are now reflected in the federal criminal code. In civil actions, the law allows victims to recover damages and attorney’s fees. Furthermore, the Bill is retroactive, so each of these amendments to the corresponding bill “apply regardless of whether alleged conduct occurs before, on, or after this bill’s enactment.”
Various communities in the United States have critiqued the Bill for several reasons. For example, many critique the Bill, arguing it discriminates against the LGBT community and individuals who are consensual sex workers. Many in the LGBT community, and others who may not feel free to express their sexual preferences, use online platforms to find dates and partners. In fact, Craigslist has removed their personal advertisements because of the Bill. Other webpages have also removed certain platforms or sections of their websites so that they will not promote or facilitate prostitution or sex trafficking. For example, the Department of Justice recently seized Backpage.com and issued a 93-count indictment against seven defendants on April 9, 2018. Backpage.com was a leading webpage for prostitution ads, including advertisements for the prostitution of minors. While this occurred before the Bill was signed into law, the actions of the DOJ are indicative of the national initiative to prevent sex trafficking, more broadly human trafficking, in the United States.
Consensual sex workers critique the Bill because it takes away their platform to choose to perform these services. Online platforms moved sex workers from the streets to the webpages; solicitations and personal ads reduced violence against sex workers. Online forums allowed consensual sex workers to exert individual control over their work by choosing who they would meet in person, which contributed to the decline in violent crimes against sex workers. Now that these websites are being shut down and removed, sex workers may be forced to return to the streets to find work. Typically, sex workers who find work on the streets rely on pimps to facilitate business, many of these pimps are abusive. This is one facet of violence against sex workers that was antiquated when personal ads were moved to websites. No one denies that victims of sex trafficking deserve protection, but many sex workers argue that the scope of the Bill is too vast to adequately represent the dynamic between sex worker and sex trafficking victim.
Another critique of the Bill is that it will be ineffective at ending sex trafficking. Critics contend that the individuals using these websites will just use websites and forums outside of the United States. Investigating and prosecuting of individuals using websites outside of the United States is increasingly difficult. The victims of sex trafficking will be left without a means for protecting themselves and seeing the individuals responsible for their trauma be held accountable for their conduct. Victims, through prosecutors, in the United States may not have grounds for charging websites outside of the United States because United States’ courts may not have the jurisdiction to prosecute these websites, meaning the victims may never see their day in court. Accordingly, the sex trafficking industry will be pushed further underground, making it harder to prosecute the individuals responsible.
Finally, the Bill has First Amendment implications. The First Amendment guarantees freedom of speech, among other freedoms, and critics argue that this Bill will impede on that freedom. Many argue that the Bill is unconstitutional because websites will beginning censoring the speech of its users. The legislation has already impacted the internet because websites are being shut down and users are censoring their online speech. While the intentions for the Bill are clearly in the right place, the execution of the Bill has opened it up to a lot of criticism from various groups. Time will tell if this legislation will effectively combat sex trafficking in the United States or simply redirect the problem outside of its borders, effectively pushing it underground and out of reach for prosecution.