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.

9/11, 14 years on—and where are our civil liberties?

JDN 2457278 (09/11/2015) EDT 20:53

Today is the 14th anniversary of the 9/11 attacks. A lot has changed since then—yet it’s quite remarkable what hasn’t. In particular, we still don’t have our civil liberties back.

In our immediate panicked response to the attacks, the United States passed almost unanimously the USA PATRIOT ACT, giving unprecedented power to our government in surveillance, searches, and even arrests and detentions. Most of those powers have been renewed repeatedly and remain in effect; the only major change has been a slight weakening of the NSA’s authority to use mass dragnet surveillance on Internet traffic and phone metadata. And this change in turn was almost certainly only made because of Edward Snowden, who is still forced to live in Russia for fear of being executed if he returns to the US. That is, the man most responsible for the only significant improvement in civil liberties in the United States in the last decade is living in Russia because he has been branded a traitor. No, the traitors here are the over one hundred standing US Congress members who voted for an act that is in explicit and direct violation of the Constitution. At the very least every one of them should be removed from office, and we as voters have the power to do that—so why haven’t we? In particular, why are Dan Lipinski and Steny Hoyer, both Democrats from non-southern states who voted every single time to extend provisions of the PATRIOT ACT, still in office? At least Carl Levin had the courtesy to resign after sponsoring the act allowing indefinite detention—I hope we would have voted him out anyway, since I’d much rather have a Republican (and all the absurd economic policy that entails) than someone who apparently doesn’t believe the Fourth and Sixth Amendments have any meaning at all.

We have become inured to this loss of liberty; it feels natural or inevitable to us. But these are not minor inconveniences; they are not small compromises. Giving our government the power to surveil, search, arrest, imprison, torture, and execute anyone they want at any time without the system of due process—and make no mistake, that is what the PATRIOT ACT and the indefinite detention law do—means giving away everything that separates us from tyranny. Bypassing the justice system and the rule of law means bypassing everything that America stands for.

So far, these laws have actually mostly been used against people reasonably suspected of terrorism, that much is true; but it’s also irrelevant. Democracy doesn’t mean you give the government extreme power and they uphold your trust and use it benevolently. Democracy means you don’t give them that power in the first place.

If there’s really sufficient evidence to support an arrest for terrorism, get a warrant. If you don’t have enough evidence for a warrant, you don’t have enough evidence for an arrest. If there’s really sufficient evidence to justify imprisoning someone for terrorism, get a jury to convict. If you don’t have enough evidence to convince a jury, guess what? You don’t have enough evidence to imprison them. These are not negotiable. They are not “political opinions” in any ordinary sense. The protection of due process is so fundamental to democracy that without it political opinions lose all meaning.

People talk about “Big Government” when we suggest increasing taxes on capital gains or expanding Medicare. No, that isn’t Big Government. Searching without warrants is Big Government. Imprisoning people without trial is Big Government. From all the decades of crying wolf in which any policy someone doesn’t like is accused of being “tyranny”, we seem to have lost the ability to recognize actual tyranny. I hope you understand the full force of my meaning when I say that the PATRIOT ACT is literally fascist. Fascism has come to America, and as predicted it was wrapped in the flag and carrying a cross.

In this sort of situation, a lot of people like to quote (or misquote) Benjamin Franklin:

“Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”

With the qualifiers “essential” and “temporary”, this quote seems right; but a lot of people forget them and quote him as saying:
“Those would give up liberty to purchase safety, deserve neither liberty nor safety.”

That’s clearly wrong. We do in fact give up liberty to purchase safety, and as well we should. We give up our liberty to purchase weapons-grade plutonium; we give up our liberty to drive at 220 mph. The question we need to be asking is: How much liberty are we giving up to gain how much safety?

Spoken like an economist, the question is not whether you will give up liberty to purchase safety—the question is at what price you’re willing to make the purchase. The price we’ve been paying in response to terrorism is far too high. Indeed, the price we are paying is tantamount to America itself.

As horrific as 9/11 was, it’s important to remember: It only killed 3,000 people.

This statement probably makes you uncomfortable; it may even offend you. How dare I say “only”?

I don’t mean to minimize the harm of those deaths. I don’t mean to minimize the suffering of people who lost friends, colleagues, parents, siblings, children. The death of any human being is the permanent destruction of something irreplaceable, a spark of life that can never be restored; it is always a tragedy and there is never any way to repay it.

But I think people are actually doing the opposite—they are ignoring or minimizing millions of other deaths because those deaths didn’t happen to be dramatic enough. A parent killed by a heart attack is just as lost as a parent who died in 9/11. A friend who died of brain cancer is just as gone as a friend who was killed in a terrorist attack. A child killed in a car accident is just as much a loss as a child killed by suicide bombers. If you really care about human suffering, I contend that you should care about all human suffering, not just the kind that makes the TV news.

Here is a list, from the CDC, of things that kill more Americans per month than terrorists have killed in the last three decades:

Heart disease: 50,900 per month

Cancer: 48,700 per month

Lung disease: 12,400 per month

Accidents: 10,800 per month

Stroke: 10,700 per month

Alzheimer’s: 7,000 per month

Diabetes: 6,300 per month

Influenza: 4,700 per month

Kidney failure: 3,900 per month

Terrorism deaths since 1985: 3,455
Yes, that’s right; influenza kills more Americans per month (on average; flu is seasonal, after all) than terrorism has killed in the last thirty years.
And for comparison, other violent deaths, not quite but almost as many per month as terrorism has killed in my entire life so far:
Suicide: 3,400 per month

Homicide: 1,300 per month

Now, with those figures in mind, I want you to ask yourself the following question: Would you be willing to give up basic, fundamental civil liberties in order to avoid any of these things?

Would you want the government to be able to arrest you and imprison you without trial for eating too many cheeseburgers, so as to reduce the risk of heart disease and stroke?

Would you want the government to monitor your phone calls and Internet traffic to make sure you don’t smoke, so as to avoid lung disease? Or to watch for signs of depression, to reduce the rate of suicide?

Would you want the government to be able to use targeted drone strikes, ordered directly by the President, pre-emptively against probable murderers (with a certain rate of collateral damage, of course), to reduce the rate of homicide?

I presume that the answer to all the above questions is “no”. Then now I have to ask you: Why are you willing to give up those same civil liberties to prevent a risk that is three hundred times smaller?

And then of course there’s the Iraq War, which killed 4,400 Americans and at least 100,000 civilians, and the Afghanistan War, which killed 3,400 allied soldiers and over 90,000 civilians.

In response to the horrific murder of 3,000 people, we sacrificed another 7,800 soldiers and killed another 190,000 innocent civilians. What exactly did that accomplish? What benefit did we get for such an enormous cost?

The people who sold us these deadly wars and draconian policies did so based on the threat that terrorism could somehow become vastly worse, involving the release of some unstoppable bioweapon or the detonation of a full-scale nuclear weapon, killing millions of people—but that has never happened, has never gotten close to happening, and would be thousands of times worse than the worst terrorist attacks that have ever actually happened.

If we’re worried about millions of people dying, it is far more likely that there would be a repeat of the 1918 influenza pandemic, or an accidental detonation of a nuclear weapon, or a flashpoint event with Russia or China triggering World War III; it’s probably more likely that there would be an asteroid impact large enough to kill a million people than there would be a terrorist attack large enough to do the same.

As it is, heart disease is already killing millions of people—about a million every two years—and we aren’t so panicked about that as to give up civil liberties. Elsewhere in the world, malnutrition kills over 3 million children per year, essentially all of it due to extreme poverty, which we could eliminate by spending between a quarter ($150 billion) and a half ($300 billion) of our current military budget ($600 billion); but we haven’t even done that even though it would require no loss of civil liberties at all.

Why is terrorism different? In short, the tribal paradigm.

There are in fact downsides to not being infinite identical psychopaths, and this is one of them. An infinite identical psychopath would simply maximize their own probability of survival; but finite diverse tribalists such as we underreact to some threats (such as heart disease) and overreact to others (such as terrorism). We’ll do almost anything to stop the latter—and almost nothing to stop the former.

Terrorists are perceived as a threat not just to our individual survival like heart disease or stroke, but a threat to our tribe from another tribe. This triggers a deep, instinctual sense of panic and hatred that makes us willing to ignore principles we would otherwise uphold and commit acts of violence we would otherwise find unimaginable.

Indeed, it’s precisely that instinct which motivates the terrorists in the first place. From their perspective, we are the other tribe that threatens their tribe, and they are therefore willing to stop at nothing until we are destroyed.

In a fundamental way, when we respond to terrorism in this way we do not defeat them—we become them.
If you ask people who support the PATRIOT ACT, it’s very clear that they don’t see themselves as imposing upon the civil liberties of Americans. Instead, they see themselves as protecting Americans (our tribe), and they think the impositions upon civil liberties will only harm those who don’t count as Americans (other tribes). This is a pretty bizarre notion if you think about it carefully—if you don’t need a warrant or probable cause to imprison people, then what stops you from imprisoning people who aren’t terrorists?—but people don’t think about it carefully. They act on emotion, on instinct.

The odds of terrorists actually destroying America by killing people are basically negligible. Even the most deadly terrorist attack in recorded history—9/11—killed fewer Americans than die every month from diabetes, or every week from heart disease. Even the most extreme attacks feared (which are extremely unlikely) wouldn’t be any worse than World War II, which of course we won.

But the odds of terrorists destroying America by making us give up the rights and freedoms that define us as a nation? That’s well underway.