Congress is marking “National Slavery and Human Trafficking Prevention Month” by considering major anti-sex trafficking legislation in both houses. The bills use different approaches but would both target websites, such as Backpage, where sexual services are advertised.
Yet neither bill will result in justice for victims of human trafficking, anti-trafficking advocates and service providers told The Appeal. If passed, they say, the legislation stands to do more harm than good by failing to distinguish between trafficking victims and sex workers, eliminating sex workers’ source of income, and hampering anti-trafficking investigations.
The Senate bill, SESTA (Stop Enabling Sex Traffickers Act), which has 66 co-sponsors, was introduced by Ohio Republican Rob Portman, who last year held a Senate hearing with Missouri Democrat Claire McCaskill on Backpage and its alleged role in sex trafficking. (Just before the hearing, Backpage closed its “adult” ads section; those ads then migrated to their dating section.)
If enacted, SESTA would amend the 1996 Communications Decency Act (CDA), a provision of which — Section 230 — protects website operators from most types of legal liability for content created by their users. SESTA, Sen. Portman said in a January floor speech, “provides justice for victims of online sex trafficking because they’ll have the opportunity to sue — hold these websites accountable that knowingly facilitate crimes.”
The House bill, FOSTA (Allow States and Victims to Fight Online Sex Trafficking Act), would update the century-old Mann Act, which prohibited prostitution across state lines. Introduced by Rep. Ann Wagner (R-MO), FOSTA was later amended by House Judiciary Chairman Bob Goodlatte (R-VA), who expanded its scope from sex trafficking to all prostitution. It introduces a new federal crime: using or operating “a means of interstate or foreign commerce with the intent to promote or facilitate the prostitution of another person.”
According to Wagner, FOSTA is about “putting an end to these websites” — like Backpage, which has already successfully defended itself against state civil and criminal suits under the CDA’s current language. Operators of any website where sexual services are advertised could be charged under the new federal criminal statute proposed by FOSTA. Like SESTA’s backers, FOSTA’s proponents say this would make it easier to take legal action against websites like Backpage, though, unlike SESTA, FOSTA does not open up the path for civil suits, and it encompasses websites that facilitate prostitution, not just sex trafficking.
The legislation is meant to protect victims of sex trafficking, but many advocates who work directly with people who have been trafficked oppose both bills. “They think that shutting down any online platform is going to miraculously end human trafficking,” Jessica Peñaranda, director of strategic initiatives at the Sex Workers’ Project, told The Appeal. “They think it’s an easy way to do this.” But real solutions aren’t so easy, she says.
The position she and other advocates are voicing against SESTA and FOSTA is one that tends to get drowned out. Typically, high-profile anti-trafficking lobbying groups that lead the charge for federal legislation, such as World Without Exploitation (led by former Brooklyn Assistant District Attorney Lauren Hersh), or Christian right groups like the National Center on Sexual Exploitation (formerly known as Morality in Media), oppose not only sex trafficking but sex work itself.
“As long as there is a global sex trade, ours will be an unsafe, unjust world,” World Without Exploitation wrote in a statement supporting SESTA. But there are other anti-trafficking advocates — including trafficking victims and survivors — who do not oppose sex work, but who are seldom heard from.
Laura LeMoon, an anti-trafficking and sex workers’ rights advocate, wants to change that. She worries that legislation like SESTA and FOSTA, though ostensibly meant to help trafficking victims, is based on dangerous presumptions about the sex trade, which can actually harm both sex workers and people who are trafficked. “It’s the assumption that if we go after all prostitution, we will by definition get some trafficking in there anyway, since it’s all ‘exploitative,’” she explains. LeMoon has been trafficked and later engaged in sex work. “I know that from my experience being on Backpage,” she says, “you can’t just assume everybody’s experience in one industry.”
Sex work and trafficking are not the same thing, LeMoon and other advocates explain. At different points in their lives, some people choose sex work or are forced into sex work, or do sex work because they have few other choices. Like LeMoon, some people who have been trafficked may also use Backpage to advertise independently as sex workers. If Backpage closes down, they and other sex workers could be pushed into more dangerous situations.
SESTA supporters say the Communications Decency Act (CDA) shields websites like Backpage from most types of legal liability, making them a safe haven for trafficking. But Alexandra Levy, adjunct professor of law at Notre Dame Law School, where she teaches about human trafficking, points out that the CDA would not protect Backpage operators from federal criminal prosecution if its operators were themselves facilitating trafficking. “Section 230 as it is currently written would not prevent a federal prosecution of Backpage, if there was a case to be made,” she says. “And that’s a big if.”
If SESTA succeeds in unleashing a flood of suits against Backpage, they could be so costly as to put Backpage out of business. Some of the bill’s opponents say that would not only put sex workers out of work, but it would also make investigations harder for law enforcement and advocates who use Backpage to identify trafficking victims. What makes Backpage useful to sex workers also makes it a valuable investigatory tool: If law enforcement wanted to invent a tool that tracked people who were trafficked, and allowed them to communicate their location without alerting their traffickers, Levy has argued, it would look a lot like Backpage.
Megan Mattimoe, executive director and staff attorney at Advocating Opportunity, which assisted 150 victims of trafficking this past year, says she has seen Backpage provide information about trafficking victims captured in ads along with data on advertisers to aid in prosecutions. “In our cases,” she says, “Backpage not only complied with prosecutors’ requests, but they would also send someone to trial to testify that those business records were authentic.” Since Backpage closed its adult advertising section in January 2017, Mattimoe says, her organization has seen “victims advertised on sites housed outside the U.S.,” where federal prosecutors have neither subpoena power nor Backpage’s cooperation.
As investigations and prosecutions have made it more difficult for Backpage to operate, says LeMoon, who now works with SWOP Behind Bars, assisting sex workers who are incarcerated, life has become more difficult for both sex workers and survivors of trafficking. “It’s had a real disproportionate effect on low-income sex workers, sex workers of color, trans sex workers, sex workers who are most at the margins,” she says, “because we’re the ones who really rely on Backpage as a means of income.” Legislation like SESTA and FOSTA would put these workers at further risk.
Though it has sufficient votes to pass, SESTA has yet to come to a vote on the Senate floor. In November, Democratic Senator Ron Wyden placed a hold on the bill, warning, “I continue to be deeply troubled that this bill’s approach will make it harder to catch dangerous criminals,” adding that it could also “stifle innovation” on the internet. FOSTA’s fate is equally uncertain: Though tech companies like Apple and interest groups like the Concerned Women of America, a Christian anti-feminist organization, support it, many of the anti-trafficking lobbying groups who support SESTA (like World Without Exploitation) openly oppose FOSTA, which they say was crafted without their input and, unlike SESTA, lacks a provision for a civil right of action.
Advocates who work directly with survivors oppose both pieces of legislation, but for different reasons than the lobbying groups. “There’s nothing in there to help victims at all,” says Mattimoe. Survivors of trafficking may be able to bring a civil suit against a website such as Backpage, but few survivors have the resources to do so — another factor SESTA does not address.
Both SESTA and FOSTA also fail to address the immediate needs of survivors. Peñaranda of Sex Workers’ Project, who assists both sex workers and people who have been trafficked, says her clients already struggle to find work and fear being treated as criminals for past or current involvement in commercial sex. When websites such as Backpage are criminalized, Peñaranda says, “it’s forcing the hand of survivors” — to choose safety, or survival.