FOSTA Five Years Later

April 13, 2023

April 11th, was the 5th anniversary of FOSTA becoming law. FOSTA, AKA SESTA, is the Fight Online Sex Trafficking Act. FOSTA does NOT fight sex trafficking; in fact, it has a host of other dangerous consequences. It is, we believe, unconstitutional. In fact, in 2018, Woodhull Freedom Foundation became the lead plaintiff in the only Federal lawsuit challenging this act, Woodhull Freedom Foundation vs the United States of America. We’re still fighting in the courts to have this law overturned.

Let’s talk about what’s happened since this became law. 

FOSTA aims to stop sex trafficking online by carving up Section 230 of the Communications Decency Act. It says that online platforms like Twitter or Craigslist can be held accountable for “knowingly assisting, facilitating, or supporting sex trafficking.” 

Wanting to stop the facilitation of sex trafficking is a good thing. But that’s not what FOSTA did. FOSTA caused things to happen that made sex work more dangerous, hindered law enforcement from using websites to catch actual traffickers, and increased censorship online. I repeat FOSTA did nothing to stop sex trafficking. In fact, according to the San Francisco Chronicle, in just the first year post-FOSTA, crimes of trafficking increased by three times as many incidents as the prior year.

Erotic Labor

Sex workers organized and lobbied to prevent the passage of FOSTA, sounding the alarm about the potential life-threatening results of the law should it pass. Time has shown their alarm to have been well-placed, as we’ve seen the mass removal of sex workers from websites like Instagram, Twitter, and TikTok. We’ve also seen sites that sex workers used to advertise disappear for fear of prosecution. In fear of the results of FOSTA, Craigslist shut down its personals section. Tools that sex workers use to keep themselves safe are less accessible on an internet that is increasingly hostile, post-FOSTA, to anything sexual. Bad date sheets, for example, or increased screening before dates, are not as accessible to sex workers. 

The removal of the various sites that people used to conduct their work – their labor – left many without the ability to schedule their own work, research clients for troubling histories, and access their communities’ support. Even access to health information has been limited. Physical assaults and murder have increased as sex workers returned to work in an environment where they had almost no protection. It’s also drastically reduced their income, which means people cannot pay their bills or feed their families. This “unintended consequence” of FOSTA has a real & harmful effect on sex workers and their families. 

Law Enforcement

FOSTA has limited law enforcement’s ability to catch and prosecute traffickers and creators of child sexual abuse materials (CSAM). This brings me to Backpage. Did you know that adult sites like Backpage were some of the best tools for finding CSAM (child sex abuse materials) for law enforcement and for working with authorities to rid their platform of traffickers? According to Wired, “Backpage is remarkably responsive to law enforcement requests and often takes proactive steps to assist in investigations.” 

Backpage has been attached to FOSTA as if the shutdown of the site was a result of the law. The site was shut down five days before FOSTA became law. You can read more about Backpage in this excellent article in Reason, written by Elizabeth Nolan Brown. 

Censorship, Surveillance, and Moderation

Censorship of the internet has increased exponentially since FOSTA took effect. Sex educators, therapists, and counselors have started to feel the effects of FOSTA-related censorship. It’s the reason you see porn spelled p0rn and sex spelled seggs online. 

Using tools many users don’t recognize, platforms like Twitter, Facebook, and Instagram are “hiding” certain accounts (known as “shadowbanning”) or removing them outright. There is little justification for these supposed “violations of our Terms of Service” and no recourse for those who’ve lost accounts. 

For example, Meta’s ad policies regarding sexual content state that “content or products that focus on sexual pleasure are not allowed.” So unless a pleasure product is described as a medical device, it can’t be advertised or discussed. 

Woodhull is a human rights organization, and I would be remiss if I didn’t point out that Article 19 of the Universal Declaration of Human Rights guarantees our right to free expression. These platforms are actively censoring users daily- violating our fundamental human rights! 

Our lawsuit challenging the constitutionality of this disastrous law continues as we wait for the DC Circuit Court’s decision after our January hearing. You can listen to the hearing here.  

FOSTA was not the first law designed to censor the internet and restrict sex and sexuality. It won’t be the last. Two major pieces of Federal legislation are waiting in the wings; the Kids Online Safety Act (KOSA) and the EARN IT Act are similar to FOSTA and just as dangerous. 

It’s important to stay vigilant and to speak out against these bills. We must tell our legislators to stop using sex trafficking and lies about protecting children to censor the internet and harm sex workers!