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Rethinking the Online Sex Trade Debate

November 21, 2019

By L.O.

 

In high school, I found out that an older man sold images of me on his pornography website. I did not know about his photography of me, nor did the fifty-plus other girls he preyed on, until the police informed us.

When I became a cheerleader as a young girl, I never expected it would lead to sexual exploitation. I actually wanted to be a soccer player, watching my male cousin win big championships, but my public school did not have a girls team until I was older. I would quickly learn that sexism operates not only through exclusion, but also through endangering female-dominated spaces.

I learned that lesson the day I ended up in the police precinct, identifying myself in videos of competitions I participated in. A male teacher in his late twenties at an all-girls prep school in Connecticut had been following a number of cheerleaders around the northeast United States as we stretched and competed to produce child pornography for a $14 pay-per-view fee. A zoom lens and malicious intent turned my gymnastics skills from something I loved for the strength, flexibility, and grace they required into something for the sexual consumption of strangers. It left me feeling confused and indignant. I was 14 years old at the time.

That violation, more than a decade ago now, comes up for me when I think about the SESTA/FOSTA bill package that Trump has signed into law. SESTA/FOSTA (the Stopping Enabling Sex Traffickers Act and the Allow States and Victims to Fight Online Sex Trafficking Act) expands the opportunities to sue websites for providing illegal sexual content, but also threatens the safety of consensual sex workers and free speech on the internet. There is already a lot written for and against it, and I specifically want to weigh in on what I see as an opportunity to expand the parameters of the debate itself. When there is a lack of nuance, both consensual workers and those who are otherwise victim to commercialized rape, non-consensual image sharing, and other sexual violations find themselves especially vulnerable.

 

The Legal Loophole that Led to SESTA/FOSTA

Before turning attention to the problems of SESTA/FOSTA and what spurred the debate, it is important to understand its origins.

For years, victims of child sex trafficking met insurmountable obstacles to holding websites that advertised their sale and profited from their suffering accountable. Courts consistently dismissed their cases based on Section 230 of the Communications Decency Act, passed by Congress in 1996, which freed websites from liability for hosting this content.

The idea was that internet service providers should not be held responsible for illicit content posted by third-party users. A website would not be treated as a “speaker” or “publisher” of content if they were not themselves the maker (“provider”) of the content, as long as “good faith” action was taken to restrict access to anything deemed questionable.

Because of the “good faith” provision, as enacted, Section 230 did not provide absolute immunity. But prevailing judicial interpretations due to a lack of clarity about what a “good faith” effort should consist of have pushed its scope to mean near blanket immunity. What this meant was that I was granted more legal protection than most, because the man who posted my images also owned the website distributing them. If he had provided them to a different website, I could have been among the uncountable victims without legal recourse to have the content removed or hold all those profiting from it accountable

As we’ve seen from the dismissal of numerous civil suits against Backpage and other websites selling sex and rape, even “in situations where website operators [have] become aware that an advertisement on their site is connected to child sex trafficking, there [has been] no legal duty to delete or block such advertisement.”1

Previous legal complaints against Backpage have alleged multitudinous instances of its prior knowledge of child trafficking, a refusal to remove specific content, and a failure to adopt measures that the National Center for Missing and Exploited Children, state officials, survivors, and others requested. They allege Backpage actively pushed content involving children, rather than acting as an innocent party with neutral practices and policies for accepting classified ads. Charges state that Backpage editors altered ads to remove indications that a minor was involved (such as “amber alert,” “lolita” and “high school”), rather than blocking them altogether; that they allowed ads to go live prior to review and approval by moderators; and that they failed to report illegal activity to NCMEC.

Victim testimonies detail how this facilitated illegal and violent activities, including pimping, drugging, rape by gunpoint, a fatal stabbing, and the dumping of a dead person in a park. In one particularly graphic account, a teenager attempted to escape a kidnapping by jumping out of a vehicle, and was killed by cars passing on the highway. The motion last year for the detention of Backpage executive Michael Lacey declares that Section 230 immunity should not apply due to the nature of the charges. It will be determined at trial if Lacey, Backpage co-founder James Larkin, and five employees of the site are guilty.2

In a 2011 decision dismissing a civil suit against Village Voice Media Holdings and Backpage.com LLC, the judge declared that the plaintiff, a 14-year-old girl, could only target the provider of the content of the advertisements:

“Plaintiff artfully and eloquently attempts to phrase her allegations to avoid the reach of § 230…Congress has declared such websites to be immune from suits arising from such injuries. It is for Congress to change the policy that gave rise to such immunity.”3

She was only permitted to pursue child prostitution or peonage charges against the individual who photographed her, posted the ad with her image, transported her to men for commercial rape, and financially benefitted from those acts. In this suit, like many that followed, there was no opportunity to get at the profit structure underneath the violence. It would take much more legal pressure to force review of whether, or to what extent, the Backpage executives directly grew their multimillion-dollar business (operating in 97 countries) through knowing exploitation of not only this one child, but of untold more.

The 2017 documentary I Am Jane Doe argues that prior knowledge and specific kinds of interference is what turns an innocent website into a liable “speaker” or “publisher” of illicit content. Calls to take down Backpage and other websites like it by people interviewed in the film transcend political affiliation—they’re repeated by leftist writers with the Village Voice like Tom Robbins and Richard Goldstein, to representatives of NCMEC and NGOs like Covenant House and FAIR Girls, to liberal and right-wing politicians like Senator Claire McCaskill and Senator John McCain. They all contend that Backpage’s executives did not act in “good faith” and should therefore not be shielded from investigation or any resulting sanction.

I am Jane Doe appears instrumental to the passing of SESTA/FOSTA, explaining the troubling way courts have dealt with contradictory interpretations of the CDA by effectively granting immunity to websites. SESTA/FOSTA clarifies that when it comes to violating federal and state trafficking laws, websites may indeed be held accountable. Supporters celebrate how SESTA/FOSTA opens the possibility of pursuing a lawsuit at all, which makes it possible to thoroughly review evidence regarding how active a web platform, such as Backpage, has been in the facilitation of sexual crime.

 

SESTA/FOSTA’s Harm to Sex Workers

However advantageous SESTA/FOSTA may (or may not) be for stopping illegal trafficking, consensual sex workers who have used sites like Backpage to free themselves of pimps, screen their clients, and gain greater control of their safety have been fighting it. Fearful of lawsuits, those sites have been preemptively shutting down, leaving many sex workers desperate and returning to the streets.

Reports of an increase in deaths and disappearances of sex workers are already coming out. Even the forums sex workers have used to share safety tips are vanishing, since it is unclear how courts will now judge what kind of speech constitutes “promoting” or “facilitating” sexual crime. Some harm reduction organizations are fearful to offer condoms and are reconsidering holding workshops and conferences on safe sex and the sex industry.

As one sex worker rights advocate told me, “SESTA/FOSTA made us more vulnerable than before.”

Protests against SESTA/FOSTA have taken place in cities across the country. June 1, 2018 became the first National Sex Work Lobby Day, with events occurring in nearly every US region.4 Many chapters of the Democratic Socialists of America, among other organizations, have issued statements of solidarity against SESTA/FOSTA. Resistance is also happening through the court system. On June 28, 2018, lawyers representing Woodhull Freedom Foundation, along with Human Rights Watch, the Internet Archive, and two individuals, filed a lawsuit challenging FOSTA’s constitutionality. The case has yet to be decided.

Notably, the complaint argues that the legislation “erroneously conflates all sex work with trafficking…has impeded efforts to prevent trafficking and rescue victims, and has only made all forms of sex work more dangerous.”5

The Electronic Frontier Foundation, the ACLU, and other free speech advocacy groups additionally believe all websites—regardless of whether they are oriented toward sex— should be worried, since they could now be more liable for the information their users post. While large organizations probably have the resources to adequately filter content, smaller sites are at a disadvantage.

LGBTQ organizations are some of the most vocal because of the place sex work occupies in certain understandings of LGBTQ liberation. LGBTQ-identified individuals sometimes rely on sex work since the broader capitalist market discriminates against them. They may find themselves vulnerable to trafficking or “survival sex” due to high rates of youth homelessness from families disowning them.

Such work aims to humanize sex workers and raise awareness about the inequalities and white supremacist cultural and legal practices that disproportionately target black and brown people, and especially women and trans people.

 

SESTA/FOSTA’s Sacrificial Lambs

On the one hand, the debate over SESTA/FOSTA makes it seem as though we need to choose sides: one is either with consensual sex workers or with victims of trafficking. On the other hand, efforts to attend to both largely gloss over the distinct features of each struggle. Few people or organizations are addressing both SESTA/FOSTA’s danger to sex workers and ongoing victim concerns about internet trafficking.

Some commentators make the dangerous mistake of splitting sex workers and survivors calling for accountability into groups necessarily at odds. But there is no consensus among victims of such violation about best solutions—some passionately support SESTA/FOSTA, while others strongly oppose it. Consensual workers are themselves vulnerable to trafficking and other violations, which organizations such as Survivors Against SESTA attest to.6

Tim Ballard, founder of Operation Underground Railroad, an anti-trafficking organization consisting of former Navy SEALs and CIA operatives, has declared that “shutting down Backpage is a small price to protect children”:

“[Sex worker rights activists] need to recognize how many children were being abused because Backpage existed. If you let sex workers work legitimately [only] because we fear for the rights of sex workers, you are opening the door for children to be raped by millions in the process.”7

That kind of argument weighs who matters most based on the perceived intensity of the violation or the number of people affected. This often involves fights over the legitimacy of the data itself and its interpretation, and suggests that it is not possible to address the needs of all vulnerable parties.

The data that exists is not easy to rely on, in any case. Even where rates of trafficking might appear high, many investigators assume under-reporting because of the trauma, stigma, and potential retaliation that can accompany speaking up. Others draw attention to “traditionalist morality”—that sex for money, or sex more generally, is bad—which exaggerates coercion and violence by seeing the entire trade as immoral. People on all sides, though, concede that the data we have is quite inadequate, as it often goes with underground industries.

Conflicting views within leftist organizations are especially important to explore, since discussions tend to be less about the morality of sex and more about how we socially value women, children, and other marginalized groups. Some see sex work as work like any other (however exploitative), while to others it can represent an expression of genuine sexual freedom. Still others note signs of increasing violence and objectification of mostly young women and transgender people, with the Internet facilitating and normalizing male participation in harmful, sexist consumerism. These debates shape views of whether decriminalization should extend to the entire trade (a move toward improving it) or only to sex workers themselves (a move toward abolishing it).

Cutting through this dilemma is the argument that improving conditions for consensual workers will also benefit victims coerced into the industry. There is an argument that websites like Backpage make it easier to monitor, track, and respond to illicit activity.8 If only people had the ‘right’ information, it says, there would be no division. It smoothes differences, not unlike the paternalism it is positioned against (which asserts that abolition is equally beneficial to consensual workers as everyone else by defining even workers as victims).

I have asked sex worker rights activists about how challenging it is to fully address the concerns of all vulnerable parties. Is there an inherent, irresolvable conflict between the different groups? Is it impossible to support, survivors who are pursuing more accountability from websites and workers who depend on those websites at the same time? Or is it the impulse to see conflict that’s getting in the way—that is, would greater understanding of the problem help dissolve current divisions?

One sex worker rights activist told me they were not necessarily interested in defending Backpage, but expressed disbelief that the company had any interest in promoting child trafficking. While the activist sympathized with my story of being put online as a teenager, they asserted that we should be skeptical of organizations like NCMEC “that financially benefit from inflated trafficking numbers.” However ‘good’ NCMEC’s intentions, they said, “when your budget relies on a problem continuing to exist…there is some conflict of interest there.”

For many people, Backpage appears to have taken all the proper measures of an organization concerned about trafficking. Indeed, published critiques of SESTA/FOSTA almost always dismiss child exploitation charges against Backpage as “baseless”9 and suggest that we should instead appreciate that Backpage makes crime visible, allowing for its obstruction.

NCMEC and the victims who have pursued cases against Backpage tell such a different story. Whereas NCMEC met with Backpage regularly for a number of years to develop best practices, NCMEC eventually lost faith in the relationship and went on to write amicus briefs against the company. According to one NCMEC representative speaking on camera for I am Jane Doe, Backpage’s executives have appeared “more interested in using an association with the National center to clean up their public image.”

 

Examining Where Struggles Diverge

To be responsive to all vulnerable parties means addressing divergent understandings of what the problem is.

Common among free speech advocates is the idea that the best thing to do is “to leave…companies alone—to leverage public backlash and economic pressure to get them to take action against bad actors.”10

But many survivors and legal experts have pointed out that there are too many loopholes and opportunities for exploitation to occur, which has more to do with the structure of the sex trade than individual traffickers. They direct attention to how the use of Bitcoin and gift cards on sites like Backpage and Craigslist have protected pimps and johns. If sites work with law enforcement to combat commercialized rape, hackers employed to fight crime have reported to me that anonymity disrupts those efforts. Users are not required to have verifiable email addresses and telephone numbers, nor to provide their or the photographed individual’s ages and identities.

Some experts point to a statistic from NCMEC of an 846% increase in reports of suspected child sex trafficking in recent years as evidence that pimps prefer working online. Besides the shield it could provide them from law enforcement, they can also jump geographical boundaries and advertise their victims as “new” and “available for a limited time only.”11

The NCMEC statistic is contested. But as plaintiffs against Backpage note, the company has a conflict of interest because of the potential for massive profits. One training document submitted as evidence to the court instructs moderators not to send emergency alerts to NCMEC in response to complaints filed by extended family members of children advertised on the site.12 Whereas Backpage has asserted it stopped trafficking online “to an unprecedented degree,” it nonetheless worked hard to prevent the passing of Senate Bill 6251, which would have required age verification for sex ads. The company’s general counsel Liz McDougall successfully argued that it would be impractical to adhere to the bill, and that Section 230 prohibited any such constraint.

Even those who participate in the trade with all-around consent often wish to remain anonymous. On the Savage Love podcast, host Dan Savage lamented the shut down of Craigslist and Backpage ads in his conversation with sex worker Mistress Matisse precisely because they uniquely allowed “closeted” people and people with “really obscure, out there kinks” to pursue their desires “without it ever being able to be traced back to you.”13

Would anonymity no longer be desired if sex work were decriminalized? We would, in any case, need to carefully consider conflicting ideas about what decriminalization means for trafficking and gendered power dynamics more broadly. Peer-reviewed and other studies show that decriminalization can often make things safer for consensual workers. However, many point to how at the same time it increases illegal trafficking and harms women as a group. A holistic response requires grappling with very big issues, powerful creativity, and compassion for the multiple vulnerable parties to resolve any contradictions.

 

Expanding Solidarity

Examining the issue from new angles might lead us to find surprising areas of overlap between these struggles, opening possibilities for more effective solidarity.

Beyond coalitions of trafficking survivors that support SESTA/FOSTA, a number of lawyers and activists trying to stop nonconsensual image sharing have told me it assists their work. A great number of the latter, however, believe that the harmful effect on consensual sex workers is not acceptable collateral.

A co-founder of a non-profit dedicated to fighting revenge porn explained how difficult it has been to have to rely on voluntary responses from websites to take down nonconsensual content due to Section 230. But while she understands “the laws that hold websites accountable for their actions to be, overall, beneficial” to her organization’s goals, she also understands that they are “wholly problematic for sex workers and other marginalized groups.”

Her organization, she stated, wants “the safety and empowerment of everyone, so we hope that the laws are changed to reflect that, and that they are carried out how they were meant to be used—to target harmful crimes instead of consensual sex workers.”

Some have argued that SESTA/FOSTA is not necessary for taking down websites that commit abuses. But at the same time, the ACLU, Google, and the Internet Association have treated efforts to criminalize revenge porn as threatening free speech—revealing the broader ongoing debates about what constitutes “protected speech.”14 Indeed, New York only this year criminalized revenge porn, and several states continue to allow it. 

The irony is that since SESTA/FOSTA does not actually clear up what counts as “facilitating” or “promoting” trafficking, it might paradoxically stand in the way of efforts to hold known violators accountable.

One young woman reported to me that she was on the brink of holding accountable a man who posted images of her online when SESTA/FOSTA was passed. The website that was providing the evidence under a warrant, Discord, suddenly deleted the poster’s profile and information. She says that a state agent overseeing her case said the dumping of information looked like a “definite result from SESTA/FOSTA.”

Although tampering with evidence is a punishable offense, websites that are now afraid about their potential liability are likely to act in such ways, she predicts, given that there is so little support for cases like hers. “You can talk to thousands of women across the United States. They walk into a police office and they don’t even get the report taken when it comes to revenge porn, so I’m so grateful to even having someone looking at my case,” she says.

Activists have noted that when revenge porn cases are not taken seriously, the women who sought support often end up murdered by the very men stalking or distributing images of them. But there remain many questions about how SESTA/FOSTA actually works, and what is still required to build more effective solutions to sexual violation.

We find ourselves in a strange new landscape in which websites are preemptively shutting down because of the uncertainty about what activities are permissible, and as a result deleting digital evidence that victims need to pursue justice. What can possibly justify this mess? Hasn’t the issue this whole time—ever since the CDA was written in the ‘90s—been the absence of a definition of “good faith” practice? Might vulnerable parties come together and determine what “good faith” practices should be—in ways that address their diverse needs?

I contacted one freedom of speech organization involved in campaigns against SESTA/FOSTA to find out if this was something they have already considered or could address in the future. Could we carefully construct and edit the language of laws and policies to get at harmful underlying ideologies and profit structures—rather than simply “bad actors”—while making clear and reasonable definitions of “good faith” operations, avoiding blanket immunity, but respecting consensual workers and protected speech?

The president of the foundation replied to my question: “Amendments to the bill are not the solution.” She argued that besides it being “a weapon in the ongoing war against sex workers,” the way it is “chipping away at this immunity” will not simply “make it impractical for the next Instagram or Snapchat to launch,” but moreover, it will “in turn inhibit the free speech rights of all internet users.”

Perhaps in our current sociolegal context that criminalizes sex work, and sex workers themselves, it may feel difficult to imagine a plausible scenario in which defining “good faith” practices to do anything but further endanger sex workers. And yet I’m left wondering why we are not collectively able to imagine a world where a multimillion-dollar business like Backpage is held to higher standards, and not sacrifice consensual sex workers in the process.

I might not have the answers for how to resolve these thorny dilemmas, but there is one thing I know for certain as I reflect back on my experience of that man secretly filming me for his child pornography website: I, for one, am thankful that the law protected me when I needed it. All of us who are victims or vulnerable to abuse deserve that, and none of us should rest until that becomes a reality for all of us.


1 Cardenas, Ashley. “The SAVE Act of 2015: Congress’ Attempt to Reprioritize Online Child Sex Trafficking.” St. Johns Law Review 91(2): p.505-527 (p.515).
2 https://www.courtlistener.com/recap/gov.uscourts.azd.1089159/gov.uscourts.azd.1089159.13.0.pdf
https://www.azcentral.com/story/news/local/phoenix/2018/04/30/hearing-set-backpage-founders-case-over-sex-ads-larkin-lacey/564886002/
3 https://www.govinfo.gov/content/pkg/USCOURTS-moed-4_10-cv-01740/pdf/USCOURTS-moed-4_10-cv-01740-0.pdf: p 31.
4 https://survivorsagainstsesta.org/june-1-a-national-day-of-action/
5 https://www.woodhullfoundation.org/our-work/fosta/
6 https://survivorsagainstsesta.org/
7 https://ourrescue.org/blog/will-the-shutdown-of-backpage-hurt-sex-workers/
8 https://www.jacobinmag.com/2018/04/sex-work-backpage-sesta-fosta-free-speech
9 https://www.thedailybeast.com/backpage-is-bad-banning-it-would-be-worse
10 https://www.vice.com/en_us/article/pamn5v/fosta-deepfakes-sex-trafficking-bill
11 Cardenas, p.509.
12 https://www.justice.gov/file/1050276/download, p.4
13 https://www.savagelovecast.com/episodes/598
14 http://www.vindy.com/news/2018/sep/22/local-group-helps-victims-of-revenge-por/