Despite unanimously passing in both the House and Senate, the Fight Online Sex Trafficking Act (FOSTA) and Stop Enabling Sex Traffickers Act (SESTA) do not have broad support outside of the Capitol. The two pieces of legislation are products of an 18-month investigation in which the Permanent Subcommittee on Investigations found a number of websites, most notably a site called Backpage.com, were being used as channels for sex trafficking. In response, FOSTA and SESTA aim to reduce sex trafficking by allowing victims to sue the online platforms that enabled their trafficking.
Prior to this legislation, websites generally could not be held accountable for the activities or content conducted or published by third parties on their sites. This immunity is in most part due to Section 230 of the 1996 Communications Decency Act, which states: “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.”
In the state of California, violating Penal Code 236.1—which defines human trafficking as “depriving someone of their personal liberty with the intent to gain forced labor or services from them” — is a felony. In 2012, California voters passed Proposition 35, titled, Californians Against Sexual Exploitation Act, which enacted stricter penalties for violating Penal Code 236.1.
The true motivation behind FOSTA and SESTA is rooted primarily in an attempt to shut down the website Backpage.com, which was purportedly selling women and children online. Under these statutes federal law no longer views websites as platforms for content but as actual publishers of it—holding websites responsible for all third-party activity involving sex work or prostitution.
However, what supporters of the bills fail to recognize (whether intentionally or not) is that legal provisions already existed that allowed for exemptions to Section 230 in these types of cases. In fact, the forced closure of Backpage.com occurred prior to FOSFA and SESTA being enacted. While purportedly intended to curb sex trafficking, Vox reports, “What FOSTA-SESTA has actually done, however, is create confusion and immediate repercussions among a range of internet sites as they grapple with the ruling's sweeping language.”
Notre Dame Law Professor and internet regulation specialist Alexandra Levy says, “Contrary to FOSTA supporters' claims, there is no credible evidence that the internet has caused an explosion in sex trafficking. What the numbers actually tell us is that as the internet expands, more sex trafficking tends to be reported.”
Levy's opposition to the legislation is supplemented by research indicating that a decrease in sex trafficking reports will not be because trafficking has abated, but rather because the legislation will have “forced victims into darker corners of the internet, where they are harder to find and recover.”
Kate D'Amdao, a national policy advocate and community organizer at the Sex Workers Project has witnessed the effects the legislation has had on the most vulnerable and marginalized sex workers. “Without those sites, many not only lose a source of income, they're also denied access to vital services and information that could save their lives,” she said.
FOSTA and SESTA do not only represent an administration's attempt at controlling the internet, it is also represents the closure of smaller startup websites that do not have the financial, legal or social capital to withstand the repercussions for their user's illicit activities. Ironically, these acts are proving to hurt the very individuals they were supposedly intended to help.