Rep. Ro Khanna (D–Calif.) is drafting legislation that would study the effects of FOSTA, the bipartisan "sex trafficking" bill that bans hosting any web content promoting prostitution. Since its passage in April 2018, a host of anecdotal evidence suggests that the law has had negative outcomes for sex workers, law enforcement, and online speech.
Khanna's bill will call on the National Institutes of Health to study the impact of the law, which is formally titled the Allow States and Victims to Fight Online Sex Trafficking Act. "I've heard anecdotally from many sex workers' organizations that since [FOSTA] has passed, sex workers have faced increased violence and that they have been forced onto the streets," he says.
Because FOSTA enacts steep penalties on any digital actor that "facilitates" the prostitution of a third-party, web forums and social media platforms have been cracking down on sex workers' accounts and activities even when they are unrelated to prostitution. In addition, the Department of Justice has directly seized a number of websites where sex workers once advertised. The result is far fewer options for sex workers to find and screen clients online, and especially options that are inexpensive, easy to use, and capable of covering a wide potential customer base. And so a lot of sex workers—especially those in the most vulnerable communities—turn to public solicitation or rely on the services of potentially exploitative third parties (i.e., "pimps").
Khanna says he's heard that FOSTA "lead to tremendous hardship for many [sex workers], particularly for women of color and for the transgender community," including "increased risks to their safety" and "greater economic hardship."
"These consequences weren't anticipated by many of the people who voted for the bill," suggests Khanna, one of just 25 House members and two senators who voted against the legislation.
Sex workers, civil liberties advocates, and many others warned in advance about the dangers posed by FOSTA and its Senate counterpart, the Stop Enabling Sex Traffickers Act (SESTA). But they were overshadowed by well-funded lobbyists, pandering politicians, and a media more interested in easy narratives (Tech Companies vs. Sex Trafficking Victims!) than listening to those most impacted by the legislation.
Ideally, FOSTA would be repealed entirely. But getting enough votes for repeal right now would be unlikely, so Khanna's approach might be the current only way forward for reform.
"What this legislation did was draconian," says Khanna. "It did not just go after bad actors; it went after sex workers' livelihood and safety." His initial thought was "let's repeal it," but sex worker and LGBTQ groups he is in touch with "cautioned that right now we wouldn't win a repeal vote, and they didn't want to have a vote that was lopsided." So they suggested a different strategy: "Why don't we get data in terms of what the impact is on sex workers?"
"Just like in the war against drugs, that we were able to push back—particularly on marijuana convictions— based on many studies and data, the hope here is that once we have this data, it will convince people that FOSTA/SESTA was an overreach and then we will have a consensus to repeal it," Khanna adds.
If the results confirm that FOSTA is causing harm, that would give members of Congress leeway to walk back their support for what has proven to be an unpopular piece of legislation (even as it remains unused by prosecutors). While a few folks in Congress pushed hard for FOSTA despite knowing the drawbacks, many more just saw a lot of heart-wrenching or lurid testimony from the bill's supporters and a caricatured version of the opposition filtered through FOSTA sponsors' lenses.
Then again, the wrong study framework or framing could lend support for somehow amending FOSTA in a worse way and/or ramping up its use. More than a year and a half in, no charges have been brought under the new law. And as we've seen (too many times), much of Congress is easily swayed by emotional pulls for bad ideas.
Asked if he was worried that the study could get highjacked by interests who would use it to promote expanding FOSTA, Khanna says "it would be hard to imagine that cynical a strategy," since he expects the data "will show that more sex workers are facing violence, more of them are facing predatory clients, more of them are facing economic hardship," and "it hasn't actually prevented child trafficking. If anything, it's had websites turning a blind eye to it and forced it underground."
Since President Donald Trump signed FOSTA into law, a host of web companies changed their terms of service related to sexual content, shut down sex-work-related communities, or ramped up rejections of sexuality-tinged accounts and content. How much of this is due to FOSTA directly and how much to other regulations and initiatives is hard to say.
Meanwhile, police across the country have told local media that finding victims of sexual exploitation and holding their perpetrators accountable are more difficult now that sex advertising has fewer big hubs. There is still an array of online venues for sex workers to advertise, but they're more dispersed, less easily accessed, and often less willing to work with U.S. law enforcement in the way that companies such as Backpage and Craigslist did.
Craigslist shuttered its entire personals section right after Congress passed FOSTA, and it got rid of its "erotic services" section long before that, under intense pressure from state attorneys general. A recent study from Baylor University economists suggested that the introduction of Craigslist's erotic services section contributed to serious declines in female homicide rates.
The Justice Department seized Backpage just prior to the passage of FOSTA, using the same laws federal prosecutors have been using to prosecute alleged prostitution businesses for decades (and despite the fact that FOSTA supporters kept insisting that FOSTA was needed to take Backpage down).
"Websites that facilitate sexual commerce have, in recent years, become pet enemies of some self-styled anti-trafficking advocates. However, this war on intermediaries should not be confused with an actual fight against human trafficking," writes Alexandra Yelderman in a Wake Forest Law Review paper, "The Virtues of Unvirtuous Spaces."
"A closer and more rigorous inspection reveals that the war on Internet platforms like Craigslist and, more recently, Backpage.com…is (at best) based on a misunderstanding of their relationship to human trafficking," states the paper. "Even though some traffickers make use of these platforms, there is neither an empirical foundation for the assumption that the platforms cause trafficking, nor any evidence that shuttering them would reduce trafficking. To the contrary, allowing Internet platforms on which sexual services are brokered to thrive may be key to apprehending traffickers and recovering victims."
Khanna hopes that his colleagues in Congress will support "a fact-based approach," that the House will be able to pass his legislation (which he plans to introduce before Congress adjourns mid-month), and that FOSTA will become an issue in the presidential debates. "I am also hopeful," he adds, "that the leading presidential candidates will endorse this legislation."