SESTA/FOSTA: oppression through moral panic

Mar 31 JDN 2458574

The road to Hell is paved with good intentions.

The “Stop Enabling Sex Traffickers Act” and “Fight Online Sex Traffickers Act”. Who could disagree with that? Nobody wants to be on the side of sex traffickers.

Beware bills with such one-sided names; they are almost never what they seem. The “USA PATRIOT Act” was one of the most authoritarian and un-American pieces of legislation ever produced.

The bill was originally two bills, SESTA and FOSTA, which were then merged. For the rest of this post I’m just going to call it SESTA for short.

SESTA passed with overwhelming support; the vote totals were 388 to 25 in the House and 97 to 2 in the Senate. Apparently members of Congress fall for that sort of one-sided naming, because they also passed the USA PATRIOT Act 357 to 66 in the House and 98 to 1 in the Senate. This is the easiest way to take away our freedoms: Make it sound like you are doing something obviously good that no sane person could disagree with. If fascism comes to America, it will be called the “Puppies Are Cute Act” and it will pass with overwhelming support.

Of course I’m against sex trafficking. Almost everyone is against sex trafficking. The problem is that SESTA doesn’t actually do much to fight sex trafficking, may in some cases make sex trafficking worse, and sets a precedent that could undermine fundamental civil liberties.

So, what does SESTA actually do? At its core, it changes the way the Internet is regulated. It has been a basic principle of Internet regulation from the beginning that websites aren’t responsible for the actions of their users; unless a site is actively designed for an illegal purpose, the fact that it is used for illegal purposes is not the website’s fault.

This is how we regulate other forms of communication. If a mob boss calls a hit man on the phone, we don’t sue the phone company. If banks exchange emails to collude on manipulating interest rates, we don’t put the email sysadmin in jail. If terrorists send messages through the mail, we don’t arrest the postal workers.

There may be some grey areas, but generally courts have leaned toward greater liberty: The Anarchist’s Cookbook sure looks an awful lot like a means for conducting acts of sabotage and terrorism, but we’re so loathe to ban books that we allow it to be sold.

That is, until now. Because it’s about sex crime, we went into moral panic mode and stopped thinking clearly about the real implications of the policy. We don’t react the same way to gun crime—if we did, we’d have re-instituted the assault weapons ban a decade ago. This is clearly part of our double standard between sex and violence. Sex trafficking is horrible, to be sure; but I think that gun homicides clearly worse. (Yes, it is horrible to be forced into sexual slavery; but would you rather be shot to death?) But we wildly overreact to the former and do basically nothing to stop the latter. And the scale of the two problems is not just comparable, it’s almost identical: About 18,000-20,000 people are trafficked into the US each year for sex, and there were precisely 19,362 homicides in the US last year, of which 14,415 were committed with firearms.
Indeed, why focus specifically on sex trafficking? The majority of forced labor trafficking is not sex. I suppose it seems worse to become a sex slave than to become a slave at a diamond mine or a tobacco plantation… but not that much worse. Not so much worse that the former merits an overwhelming response and the latter barely any response at all.

SESTA breaks the usual principles applied to regulating communication and instead allows the government to penalize websites that are used to facilitate any kind of sale of sexual services.

Note, first of all, that this suddenly changes the topic from sex trafficking to sex work; the vast majority of sex workers are not trafficking victims but voluntary participants. In countries where brothels are legal and regulated, job satisfaction of sex workers is not statistically different from median job satisfaction overall.

Second, the bill doesn’t really do anything to target sex trafficking. It was already illegal to use websites for sex trafficking and already illegal to advertise sex trafficking via the Web. In fact, there is reason to think that pushing sex trafficking further into the Dark Web will only make the job of law enforcement harder.

Part of the liability protections for websites which will now be stripped away included a “right to moderate”: using moderation tools to remove illegal content would not result in additional liability. Under SESTA, this has changed; sites will now want to avoid moderating illegal content, because in so doing they would be effectively admitting that they knew it existed. Since there can never be any guarantee of removing 100% of all illegal content without shutting the entire site down, sites may choose instead to not moderate, so they have more plausible deniability when illegal content is ultimately found.

Instead, the main effect of SESTA will be to put more sex workers in danger. Where previously they could use websites to screen clients, they now have to return to in-person contact that is much more dangerous. It pushes them from the relative security of working indoors and online to the extreme danger of walking the street or working for a pimp. SESTA also removes the opportunity for sex workers to communicate with each other, because now any content related to sex work is banned; and these kinds of communication networks can be literally a matter of life and death.

Make no mistake: People will die over this. Mostly women and queer men (because the vast majority of sex work clients are male). The homicide rate of female victims dropped an astonishing 17 percent when Craigslist iSmplemented its Erotic section that allowed sex workers to use the Internet to screen clients. SESTA is taking that away, so we can expect homicides of female victims to rise.

SESTA is also blatantly Unconstitutional. The original form of the bill included an ex post facto clause, which violates one of the most basic principles of the Constitution.

Even with that removed, SESTA is obviously in violation of the First Amendment; this is censorship. It has already been used to justify Tumblr’s purge of all sexual content, which caused a 20% drop in user base and an exodus of erotic artists and sex workers to other platforms, and will disproportionately harm queer youth because Tumblr had previously been one of the Internet’s safest spaces for exploring sexual identity.

And now that the precedent has been set to hold websites responsible for their users, expect to see more of this. We already see sites being held responsible for copyright infringement; but we could soon see similar laws passed punishing sites for “facilitating” illegal drug use, hacking, or hate speech. Operators of communication platforms will be forced to become arms of law enforcement or face prison themselves.

Of course we all want to stop sex trafficking. Everyone agrees on that. But a bill that targets bad things can still be a bad bill.

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