What is FOSTA-SESTA?
In late August 2021, the content subscription service OnlyFans delivered a shocking and, on its face, counterintuitive announcement that it would be banning adult content beginning in October. A week later, OnlyFans reversed its decision and gave assurances that it had taken the steps necessary to support its “diverse creator community.” A London-based company that brought in $400 million in revenue last year, OnlyFans soared to financial success during the pandemic largely through its hosting of adult content creators, who are compensated through a subscription model where customers pay for access to posted pictures and videos. The strange week-long saga had many wondering: What motivating force could possibly compel a rising company to consider abandoning its primary profit-source?
FOSTA-SESTA, a federal law few have heard of, has had far-reaching and disastrous consequences. FOSTA-SESTA has pierced the shield of net neutrality, curtailed free speech, and severely impacted the emotional, physical, and financial well-being of people, primarily women, who engage in sex work consensually or who have been sexually trafficked.
Signed into law under the Trump administration, FOSTA-SESTA stands for the Fight Online Sex Trafficking Act and the Stop Enabling Sex Traffickers Act. You would be hard-pressed to find anyone willing to publicly oppose a bill allegedly targeting sex traffickers, and unsurprisingly the bill passed in the Senate with near unanimous support, 97-2. Beyond Capitol Hill, FOSTA-SESTA inspired the PSA “I am Jane Doe” featuring the likes of Seth Myers, Amy Schumer and Tony Shalhoub. Somber-faced, they warn the audience of the “dark side of technology” where buying a child for sex online is “as easy as ordering a pizza.”
Despite FOSTA-SESTA’s bipartisan appeal and star-studded ad campaign, many activists, nonprofits, and even governmental entities were sounding warning bells that, contrary to its stated intent, FOSTA-SESTA would in fact make it more difficult to find and prosecute sex traffickers in addition to threatening the safety and livelihood of sex workers.
FOSTA-SESTA, Net Neutrality and the First Amendment
In order to understand the impact of FOSTA-SESTA, it is important to understand the amendment of Section 230 of the Communications Decency Act it occasioned. Since 1996, Section 230 has immunized digital platforms that host third-party content and their users from liability for illegal content posted. Under FOSTA-SESTA, internet platforms can now be held civilly and criminally liable for sexually explicit content that depicts either underage persons or non-consensual activity that appears on their sites. Suddenly, OnlyFans’ skittish behavior regarding adult content begins to make sense.
Though the official reason OnlyFans gave for their decision to ban adult content was that banks had become averse to the “reputational risk” associated with sexual content, legal scholars have drawn a causal relationship between FOSTA-SESTA’s imposition of civil liability and “preemptive actions to avoid such liability... taken by hotels, ride-share companies, online platforms, and financial services, which frequently train their employees to “identify” or profile people in the sex trades.” Also of note are the difficulties acquiring outside investment OnlyFans has encountered as it seeks a $1 billion valuation. OnlyFans has made a concerted effort to diversify its content base by courting celebrities, comedians, and athletes to the platform, likely in the hopes of upping their investor appeal to an increasingly puritanical financial sector.
Banks and digital platforms dealing in explicit content are not the only ones scrambling to ensure compliance. Mainstream social media platforms like Instagram and Tumblr have also taken similar steps to avoid liability. Tumblr banned all adult content in 2018 and in 2020, Instagram amended their terms of service to prohibit “content that is implicitly or indirectly offering or asking for sexual solicitation.” Further, platforms like Instagram have employed imprecise algorithms designed to detect and delete explicit pictures and hashtags, which in reality act as a digital drag net for a wide variety of content that is not actually explicit in nature and which has artistic and/or sociopolitical value.
People who violate these terms are at risk of having their accounts deactivated or deleted with little to no notice, which can have dire consequences for those who depend on income through promotion on social media in order to support themselves: sex workers, artists, influencers or otherwise. This censorship has had an asymmetric impact on individuals depending on their race (particularly Black women’s bodies are more strictly policed), body-type (larger bodies are more heavily censored) and level of fame (the more fame, the more revenue generated, the more likely “risqué” content is to be tolerated).
Though these algorithms functionally infringe on individuals’ free speech, the courts are slow to apply First Amendment protections to speech that takes place on digital platforms. In 2019, the Second Circuit held that First Amendment protections barred former President Trump from blocking users from his official Twitter account as his use of the account in a governmental capacity created a “public forum.” However, after Trump left office and his Twitter account was deleted, the Supreme Court vacated the Second Circuit’s ruling for mootness. In a concurrence, Justice Thomas questioned the Second Circuit’s characterization of Trump’s Twitter account as a public forum “when a private company has unrestricted authority to do away with it” and predicted that the court will eventually have to address how legal doctrines apply to digital platforms.
FOSTA-SESTA’s Impact on Consensual Sex Work
Sex workers were some of the most vocal opponents of FOSTA-SESTA when the bill was first proposed, but they were not alone. Even the United States Department of Justice voiced concerns in a legislative memo that parts of the bill were drafted so broadly that they would “extend to situations where there is a minimal federal interest, such as to instances where an individual person uses a cell phone to manage local commercial sex transactions involving consenting adults.” The increased criminalization of soliciting online and the decreased access to internet spaces as a means to find and vet clients has had catastrophic effects on sex workers’ safety and financial well-being. According to Erased: The Impact of FOSTA-SESTA, a participatory action-based, sex worker-led research report conducted 18 months after FOSTA-SESTA was signed into law, the “dismantling of an online-based sex work environment” has led to an “increase in economic instability for 72.45% of the online participants…with 33.8% reporting an increase of violence from clients.”
Prior to FOSTA-SESTA, sex workers were able to easily utilize harm reduction tools like “VerifyHim,” a system that enabled new clients to provide sex workers with references from past providers. These references helped sex workers pick clients with a demonstrated history of respecting boundaries and consensual/safe behavior. VerifyHim and “bad johns” lists posted to online platforms (“bad johns” lists are sex worker-compiled, location-specific lists of clients who were violent and/or disrespectful of stated boundaries that other sex workers should avoid) were shut down after the passage of FOSTA-SESTA, though VerifyHim has recently relaunched in a more limited capacity.
The removal of online platforms that facilitated safer sex-based transactions did not lessen the supply or demand for sex services, it merely triggered a change of venue. In the year after FOSTA-SESTA was passed, the US has seen a significant increase in street-based sex-work crimes. In San Francisco, crimes related to pimping and street-based transactions have more than tripled. According to Pike Long, the deputy director of St. James Infirmary, a health and safety clinic for sex workers in San Francisco, sex workers “have reported that former pimps came out of the woodwork offering to ‘manage’ their business again since they were now rendered unable to find and screen clients online.” In New York City, data from the same year shows a 180% increase in arrests for loitering for prostitution after years of continuous decline in such arrests.
As illustrated by the above arrest statistics, a reliance on street-based transactions unavoidably results in increased contact with police. Police violence towards and sexual assault of sex workers is well-documented. According to a study on the interactions between sex workers and the criminal justice system in New York City, funded by the US DOJ and published by the Office of Justice Programs’ National Criminal Justice Reference Service, “30% of [sex worker] participants reported that they were threatened with violence by a police officer, and 27% reported that they were harassed by an officer because of their gender presentation. Often, this violence involved sexual contact during stops. Additionally, 15% of participants reported that an officer did not arrest them in exchange for sex.”
Has FOSTA-SESTA at least had its intended impact?
If the statistics showed that FOSTA-SESTA led to human traffickers being held accountable at higher rates, it would necessitate a nuanced and complex conversation exploring the tensions between seemingly competing goals: emancipating and supporting sexually trafficked people versus protecting those who engage in sex work consensually. However, so far the DOJ has only prosecuted one case using FOSTA-SESTA. While prosecutors attribute this dearth of criminal and civil proceedings to the relative newness of the law, a report by the Government Accountability Office asserts that “gathering tips and evidence to investigate and prosecute those who control or use online platforms has become more difficult due to the relocation of platforms overseas” and “platforms’ use of complex payment systems.” Additionally, with Backpage (which used to be the largest online sex trade platform) being shut down within five days of the enactment of FOSTA-SESTA, the online sex market has become more fragmented and therefore harder for law enforcement to surveil. By pushing purveyors of sex both consensual and non-consensual farther into the dark web, FOSTA-SESTA has worsened the problem of sex trafficking in the US.
An interview published as part of a 34-month ethnographic study on FOSTA-SESTA’s impact on sexual commerce highlights the concerning reality that, rather than “saving” those sexually trafficked, FOSTA-SESTA puts those engaging in consensual sex work at higher risk of being trafficked. Lily, a 53 year old cisgender sex worker from Asia, used Backpage to choose her own clients and make her own hours. After the closure of Backpage, she began working in a massage parlor where her mobility and freedom were strictly limited, leaving her in a more vulnerable and less autonomous position.
The above analysis indicates that decriminalization of prostitution can have a net positive effect on anti-trafficking efforts. Decriminalization would allow sex workers to exchange support and information amongst themselves, vet clients and negotiate safely, and have autonomy over their work. It is generally accepted that organized and financially empowered workers are less likely to be exploited. Sex workers are not exceptions to that rule. Finally, sex workers are perhaps best situated in their communities to identify when people are being trafficked. Decriminalization could lead to sex workers feeling more comfortable reporting sex traffiking to law enforcement and cooperating with investigations to the benefit of all.
Where do we go from here?
FOSTA-SESTA is already facing legal and legislative challenges. In 2019, House Representatives Ro Khanna and Barbara Lee along with Senators Elizabeth Warren and Ron Wydon introduced the SAFE SEX Workers Study Act, which would require the Department of Health and Human Services to study the effect of FOSTA-SESTA on sex workers. If passed, the bill would initiate the first ever federal study on the health and safety of sex workers. Constitutional challenges to FOSTA-SESTA for vagueness in criminal proceedings have so far been unsuccessful but a pending action alleging that FOSTA unconstitutionally limits free speech shows promise after reinstatement on appeal.
A repeal of FOSTA-SESTA and the decriminalization of sex work would certainly reduce harms faced by sex workers. However, it is equally vital that we interrogate how moralization, punitive impulses, and whorephobia influence both our federal and state policy decisions and our national dialogue surrounding sex work and violence against women. In considering the relative failures of FOSTA-SESTA, several overarching questions come to mind. Who and what threatens our society? Which types of people do we care about? Who deserves protection? Who does not?
Violence against sex workers is upsettingly common and legally we treat sexual assault survivors who have engaged in sex work differently than those who have not. For example, rape shield laws, designed to prevent defendants in sexual assault trials from introducing their victim’s sexual history into evidence or during cross-examination, often have exceptions for individuals who have prostitution charges on their record. Thankfully, some states are in the process of amending their rape shield laws in order to address this issue, most notably New York and, as of May 2021, Pennsylvania.
Dismissal of violence against sex workers as an “occupational hazard” pervades our cultural and entertainment spaces as well. Jokes with a “dead stripper” as the punchline are commonplace and even serve as the premise for the female-led 2017 feature film, Rough Night. Gender-based violence is always inexcusable, but our society will bend over backwards to ignore harm being done or to qualify who is deserving of our concern. In a society where “sex sells,” where pornography is widely and voraciously consumed, and where women are routinely objectified and sexually harassed for having the audacity to exist in public spaces, we take issue with the women who monetize their sexuality. The hypocrisy is staggering. The cost is clear. Repealing FOSTA-SESTA is merely the first step, as a societal reckoning is also needed. We must change our perception of sex work as inherently exploitative or threatening to contemporary ethical values and reject the cultural and institutional norms that condone violence or disrespect towards sex workers as acceptable or deserved.