Broad Anti-Trafficking Law Faces Its First Constitutional Challenge

The first lawsuit against the federal law targeting sex work online was filed late Thursday in the U.S. District Court for the District of Columbia. On behalf of plaintiffs including Human Rights Watch, the Woodhull Freedom Foundation, and the Internet Archive, along with an individual sex workers’ rights activist, the complaint argues that the law, Allow States and Victims to Fight Online Sex Trafficking Act (H.R. 1865), is a violation of the First and Fifth Amendments. The plaintiffs are also asking for a preliminary injunction.

The law has resulted in online censorship that conflates the practice of sex work with health and human rights advocacy for sex workers, the complaint alleges. “This law is casting great uncertainty, whether [that advocacy is] illegal,” said David Greene, civil liberties director and senior staff attorney at the Electronic Frontier Foundation, which was among the plaintiff’s counsel.

This law, also known as SESTA/FOSTA, was signed by President Trump on April 11. It was touted by its supporters as a way to combat human trafficking. “Traffickers are using [the] internet to sell women and children,” Senator Rob Portman, an Ohio Republican, said ahead of a Senate vote in March. Groups lobbying for tougher laws against sex work, like World Without Exploitation, helmed by former Brooklyn prosecutor Lauren Hersh, and the National Center on Sexual Exploitation (formerly known as Morality in Media), also pushed for the legislation.

SESTA/FOSTA goes further than targeting human trafficking. It also holds the operators of websites criminally and civilly liable if third parties were found to have posted content “to promote or facilitate the prostitution of another person.” SESTA/FOSTA also gives state attorneys general the power to bring civil actions against the operators of these websites. But as the suit points out, SESTA/FOSTA “does not define what it means to ‘promote’ or ‘facilitate’ prostitution, nor does it specify what constitutes ‘the prostitution of another person,’ even though ‘prostitution’ is not defined in federal law.”

The broad language, the suit continues, could also extend to “persons who engage in broad categories of protected speech that makes sex work safer and easier, including speech advocating for the decriminalization of sex work, harm reduction, including speech identifying bad clients and other risks to sex workers, and speech seeking to reach sex workers to inform them of their legal rights, medical resources, or other informational material.”

One of the suit’s plaintiffs, the Woodhull Freedom Foundation, a national human rights group whose mission is to “protect sexual freedom as a fundamental human right,” says it has had to censor its work supporting sex workers, which it does in part through an annual conference where sex workers lead workshops on health and rights. “Accordingly, in April, 2018, Woodhull initially responded by ceasing all online promotion of the sex work track workshops for the Summit,” the lawsuit states. “Woodhull has a well-founded fear that its efforts to promote information about sex workers on the Internet could be construed by an ambitious prosecutor or enterprising plaintiff’s lawyer as promoting or facilitating prostitution in violation of FOSTA.”

Another plaintiff, the international group Human Rights Watch (HRW), says FOSTA could impede its efforts to advocate the rights of sex workers, including its support for the decriminalization of sex work. “HRW relies heavily on individuals spreading its reporting and advocacy through social media,” Dinah PoKempner, HRW general counsel, said in a statement issued by EFF. “We are worried that social media platforms and websites may block the sharing of this information out of concern it could be seen as demonstrating a ‘reckless disregard’ of sex trafficking activities under FOSTA. This law is the wrong approach to the scourge of sex trafficking.”

Because of the law’s vagueness, other plaintiffs alleging harm include a digital library that would now need to scrutinize the millions of pages it compiles for any suggestion of sex trafficking and  a massage therapist whose business has been banned from Craigslist.

For years, EFF has lobbied against attempts to limit what the group calls “the most important law protecting internet free speech”: Section 230 of the Communications Decency Act (CDA). Pro-SESTA/FOSTA groups said Section 230 made it impossible to hold websites like Backpage accountable if its users were trafficked. This was not the case, as was proved when the Department of Justice seized and shut down Backpage days before SESTA/FOSTA went into effect.

EFF sees FOSTA as “the most broadly based and comprehensive legislative censorship of Internet speech since Congress passed the anti-indecency provisions of the CDA in 1996,” the complaint states. This also isn’t the first time such online speech restrictions targeting information about sexuality, rights, and health have been challenged. After the CDA was passed in 1996, many of its original provisions, including one that prohibited the transmission of material “intended for producing abortion,” were struck down in court.

The broadness of the law led to a near-immediate chilling effect. Even before President Trump signed SESTA/FOSTA, some websites began removing sex workers’ content, along with any content they believed could be construed as a violation of the law. Some ad websites, like Cityvibe, went offline completely. Craigslist replaced its Personals section with a notice stating, “US Congress just passed HR 1865, ‘FOSTA,’ seeking to subject websites to criminal and civil liability when third parties (users) misuse online personals unlawfully. Any tool or service can be misused. We can’t take such risk without jeopardizing all our other services, so we are regretfully taking craigslist personals offline.”

With these site closures and takedowns, groups and lobbyists who backed SESTA/FOSTA declared victory. At the same time, sex workers reported that as a result of the law, they lost access to “bad date” lists tracking abusive and violent clients, along with the ad sites that  allowed them to find clients independent of third parties. All this is why sex workers’ rights groups opposed SESTA/FOSTA, along with some anti-trafficking groups and women’s and LGBTQ rights groups.

Greene of EFF said he is concerned that the confusion the law has created is no accident. “The law is vague. It’s ambiguous. I think that’s completely purposeful by Congress,” he told The Appeal. “You don’t triple up on words like facilitate, support, assist, promote—unless you want to make sure you are going to capture all situations. But you can see how it’s at best uncertain whether advocacy for decriminalization [is] facilitating prostitution, because the law typically defines facilitation as just to make something easier. Are you making prostitution easier when you are offering resources to sex workers on how to do so safely?”