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.

The “market for love” is a bad metaphor

Feb 14 JDN 2458529

Valentine’s Day was this past week, so let’s talk a bit about love.

Economists would never be accused of being excessively romantic. To most neoclassical economists, just about everything is a market transaction. Love is no exception.

There are all sorts of articles and books and an even larger number of research papers going back multiple decades and continuing all the way through until today using the metaphor of the “marriage market”.

In a few places, marriage does actually function something like a market: In China, there are places where your parents will hire brokers and matchmakers to select a spouse for you. But even this isn’t really a market for love or marriage. It’s a market for matchmaking services. The high-tech version of this is dating sites like OkCupid.
And of course sex work actually occurs on markets; there is buying and selling of services at monetary prices. There is of course a great deal worth saying on that subject, but it’s not my topic for today.

But in general, love is really nothing like a market. First of all, there is no price. This alone should be sufficient reason to say that we’re not actually dealing with a market. The whole mechanism that makes a market a market is the use of prices to achieve equilibrium between supply and demand.

A price doesn’t necessarily have to be monetary; you can barter apples for bananas, or trade in one used video game for another, and we can still legitimately call that a market transaction with a price.

But love isn’t like that either. If your relationship with someone is so transactional that you’re actually keeping a ledger of each thing they do for you and each thing you do for them so that you could compute a price for services, that isn’t love. It’s not even friendship. If you really care about someone, you set such calculations aside. You view their interests and yours as in some sense shared, aligned toward common goals. You stop thinking in terms of “me” and “you” and start thinking in terms of “us”. You don’t think “I’ll scratch your back if you scratch mine.” You think “We’re scratching each other’s backs today.”

This is of course not to say that love never involves conflict. On the contrary, love always involves conflict. Successful relationships aren’t those where conflict never happens, they are those where conflict is effectively and responsibly resolved. Your interests and your loved ones’ are never completely aligned; there will always be some residual disagreement. But the key is to realize that your interests are still mostly aligned; those small vectors of disagreement should be outweighed by the much larger vector of your relationship.

And of course, there can come a time when that is no longer the case. Obviously, there is domestic abuse, which should absolutely be a deal-breaker for anyone. But there are other reasons why you may find that a relationship ultimately isn’t working, that your interests just aren’t as aligned as you thought they were. Eventually those disagreement vectors just get too large to cancel out. This is painful, but unavoidable. But if you reach the point where you are keeping track of actions on a ledger, that relationship is already dead. Sooner or later, someone is going to have to pull the plug.

Very little of what I’ve said in the preceding paragraphs is likely to be controversial. Why, then, would economists think that it makes sense to treat love as a market?

I think this comes down to a motte and bailey doctrine. A more detailed explanation can be found at that link, but the basic idea of a motte and bailey is this: You have a core set of propositions that is highly defensible but not that interesting (the “motte”), and a broader set of propositions that are very interesting, but not as defensible (the “bailey”). The terms are related to a medieval defensive strategy, in which there was a small, heavily fortified tower called a motte, surrounded by fertile, useful land, the bailey. The bailey is where you actually want to live, but it’s hard to defend; so if the need arises, you can pull everyone back into the motte to fight off attacks. But nobody wants to live in the motte; it’s just a cramped stone tower. There’s nothing to eat or enjoy there.

The motte comprised of ideas that almost everyone agrees with. The bailey is the real point of contention, the thing you are trying to argue for—which, by construction, other people must not already agree with.

Here are some examples, which I have intentionally chosen from groups I agree with:

Feminism can be a motte and bailey doctrine. The motte is “women are people”; the bailey is abortion rights, affirmative consent and equal pay legislation.

Rationalism can be a motte and bailey doctrine. The motte is “rationality is good”; the bailey is atheism, transhumanism, and Bayesian statistics.

Anti-fascism can be a motte and bailey doctrine. The motte is “fascists are bad”; the bailey is black bloc Antifa and punching Nazis.

Even democracy can be a motte and bailey doctrine. The motte is “people should vote for their leaders”; my personal bailey is abolition of the Electoral College, a younger voting age, and range voting.

Using a motte and bailey doctrine does not necessarily make you wrong. But it’s something to be careful about, because as a strategy it can be disingenuous. Even if you think that the propositions in the bailey all follow logically from the propositions in the motte, the people you’re talking to may not think so, and in fact you could simply be wrong. At the very least, you should be taking the time to explain how one follows from the other; and really, you should consider whether the connection is actually as tight as you thought, or if perhaps one can believe that rationality is good without being Bayesian or believe that women are people without supporting abortion rights.

I think when economists describe love or marriage as a “market”, they are applying a motte and bailey doctrine. They may actually be doing something even worse than that, by equivocating on the meaning of “market”. But even if any given economist uses the word “market” totally consistently, the fact that different economists of the same broad political alignment use the word differently adds up to a motte and bailey doctrine.

The doctrine is this: “There have always been markets.”

The motte is something like this: “Humans have always engaged in interaction for mutual benefit.”

This is undeniably true. In fact, it’s not even uninteresting. As mottes go, it’s a pretty nice one; it’s worth spending some time there. In the endless quest for an elusive “human nature”, I think you could do worse than to focus on our universal tendency to engage in interaction for mutual benefit. (Don’t other species do it too? Yes, but that’s just it—they are precisely the ones that seem most human.)

And if you want to define any mutually-beneficial interaction as a “market trade”, I guess it’s your right to do that. I think this is foolish and confusing, but legislating language has always been a fool’s errand.

But of course the more standard meaning of the word “market” implies buyers and sellers exchanging goods and services for monetary prices. You can extend it a little to include bartering, various forms of financial intermediation, and the like; but basically you’re still buying and selling.

That makes this the bailey: “Humans have always engaged in buying and selling of goods and services at prices.”

And that, dear readers, is ahistorical nonsense. We’ve only been using money for a few thousand years, and it wasn’t until the Industrial Revolution that we actually started getting the majority of our goods and services via market trades. Economists like to tell a story where bartering preceded the invention of money, but there’s basically no evidence of that. Bartering seems to be what people do when they know how money works but don’t have any money to work with.

Before there was money, there were fundamentally different modes of interaction: Sharing, ritual, debts of honor, common property, and, yes, love.

These were not markets. They perhaps shared some very broad features of markets—such as the interaction for mutual benefit—but they lacked the defining attributes that make a market a market.

Why is this important? Because this doctrine is used to transform more and more of our lives into actual markets, on the grounds that they were already “markets”, and we’re just using “more efficient” kinds of markets. But in fact what’s happening is we are trading one fundamental mode of human interaction for another: Where we used to rely upon norms or trust or mutual affection, we instead rely upon buying and selling at prices.

In some cases, this actually is a good thing: Markets can be very powerful, and are often our best tool when we really need something done. In particular, it’s clear at this point that norms and trust are not sufficient to protect us against climate change. All the “Reduce, Reuse, Recycle” PSAs in the world won’t do as much as a carbon tax. When millions of lives are at stake, we can’t trust people to do the right thing; we need to twist their arms however we can.

But markets are in some sense a brute-force last-resort solution; they commodify and alienate (Marx wasn’t wrong about that), and despite our greatly elevated standard of living, the alienation and competitive pressure of markets seem to be keeping most of us from really achieving happiness.

This is why it’s extremely dangerous to talk about a “market for love”. Love is perhaps the last bastion of our lives that has not been commodified into a true market, and if it goes, we’ll have nothing left. If sexual relationships built on mutual affection were to disappear in favor of apps that will summon a prostitute or a sex robot at the push of a button, I would count that as a great loss for human civilization. (How we should regulate prostitution or sex robots are a different question, which I said I’d leave aside for this post.) A “market for love” is in fact a world with no love at all.