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House Passage of FOSTA Aids Censorship, Hurts Sex Workers

Posted by Seth Chazin | Mar 25, 2018 | 0 Comments

Despite opposition from the Department of Justice, sex trafficking survivors human rights advocacy groups, and numerous other organizations, the House of Representatives just passed a bill that will hurt sex workers far more than it will protect them

H. R. 1865, the “Allow States and Victims to Fight Online Sex Trafficking Act,” or FOSTA, passed the House with bipartisan support. If signed into law, the bill will make internet service providers - including search engines like Google or social media sites like Snapchat - criminally liable for sex-trafficking advertisements. The bill follows its predecessor SESTA, the “Stop Enabling Sex Traffickers Act of 2017,” introduced by Senator Rob Portman in August of 2017. SESTA aimed to amend Section 230 of the Communications Decency Act of 1934 to make internet providers legally responsible for content created and advertised by other parties on their platforms.

By seemingly providing a route to strengthen laws against human trafficking, and holding providers liable for their role in abuse, SESTA and FOSTA help politicians win cheapshot, short-term political points. But in the long-term, these bills pose a serious threat to the safety of sex workers all across America, and even the viability of free speech on the internet.

It's important to distinguish between sex trafficking and consensual sex work. Trafficking involves a forceful coercion of individuals into sexual labor and exploitation. Sex work describes a transaction, between consenting adults, to engage in sexual activity for monetary exchange.

FOSTA and SESTA fail to make this distinction. Instead, they conflate trafficking and individual sex work as uniformly criminal. The Massachusetts Sex Worker Ally Network criticized the bills, noting that they, “destroy critical support and safety networks for sex workers. This can help sex workers screen potential clients, ensuring their work isn't driven further underground.” The hashtag #SurvivorsAgainstFOSTA has been trending on Twitter, with activists noting that the bill hurts sex workers by further criminalizing their actions.

The negative ramifications of the bill don't stop there. Section 230 of the Communications Decency Act has long been considered one of the strongest pieces of legislation for protecting freedom of speech online. The bill states 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" (47 U.S.C. § 230).

In layman's terms, the current law states that internet providers can't be punished for what their users post or advertise. FOSTA and SESTA would make it possible to hold internet providers criminally responsible for their users' actions. Superficially, punishing multi-million or even multi-billion dollar tech companies for ignoring trafficking practices is common sense legislation. This is part of why companies such as Oracle and IBM have come out in strong support of the bill; it's a good PR move.

But the Electronic Frontier Foundation (EFF) has come out in aggressive opposition to the bill, and for good reason. The EFF points out that FOSTA would “force online platforms to police their users' speech more forcefully than ever before, silencing legitimate voices in the process.” The bill encourages internet providers to crackdown on user postings and engagements, diminishing privacy rights and the freedom of expression in online communities.

Congressman Bobby Scott issued a statement criticizing FOSTA, noting that it “establishes an overly-broad federal crime that is not limited to the advertisement of sex trafficking victims, which is already illegal, and punishes conduct which is much less serious than what is ordinarily viewed as ‘sex trafficking.'” The Department of Justice even issued a letter to the sponsors of FOSTA, warning them that the bill is most likely unconstitutional.

Paltry political gain at the cost of sex worker safety and freedom of speech hardly seems appropriate. But if censorship is packaged as social justice, why should we be surprised when it sells?

About the Author

Seth Chazin

Seth P. Chazin has aggressively defended clients in thousands of felony and misdemeanor cases for over 25 years. He has extensive experience representing criminal defendants in federal and state court, while handling both state and federal appeals as well.

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Seth P. Chazin is a San Francisco Bay Area Criminal Defense Lawyer with over 30 years experience.

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