Sex workers and activists stage a protest outside Parliament in London as MPs debate a proposal to outlaw online prostitution platforms.
FOSTA is a bill with a body count.
The Allow States and Victims to Fight Online Sex Trafficking Act of 2017, often abbreviated as FOSTA (a competing version of the same bill was introduced in the Senate as the Stop Enabling Sex Traffickers Act, or SESTA, and the acronyms are frequently used together or interchangeably) was signed into law by Donald Trump on April 11 of this year. While the bill has “traffickers” in the title, the text of the legislation shows another word mentioned almost as frequently: “prostitution.” That ratio is the first clue as to the bill’s true aim: to attack sex work of any kind, voluntary or otherwise. And that attack has already had a horrific human cost.
The public push for the bill centered around ads on Backpage, a popular online classified ad space. But the government shut Backpage down days before the bill became law, demonstrating to anyone who was paying attention that the new law was unnecessary—yet by that point, few other than people in the bill’s crosshairs were.
Prior to the passage of the bill, Backpage’s ads allowed sex workers a way to communicate with and screen clients before meeting them in person. In addition, easily accessible online lists of dangerous or sketchy clients existed online, so people knew who to avoid. Now, all of that is gone—the bill has made it a felony to “promote or facilitate” prostitution, explains Aaron Mackey of the Electronic Frontier Foundation. So websites from Craigslist (which killed their long-running Personals section in the wake of the bill’s passage) to Reddit to scores of others have shut down.
Amanda (not her real name) is a trans escort. She tells me that from what she’s seen, FOSTA’s main effect has been isolation and a cutting off of information.
“One of the main things that I have found across the board,” she says during a phone call, “is that people feel very disenfranchised from their ability to network and to keep a blacklist or red flag people, any sort of referencing things to verify people’s identity before you see them. Those are going away, and most people are really worried that this is inadvertently cutting us apart and separating us to where we are all in the dark.”
TS Sonja, a full-service sex worker, writes via email that things have gotten far worse for her in the few months since the new law.
“I lost my main advertisement space: Craigslist. Building a clientele has been nearly impossible because I have no established presence [on other websites]. I can’t afford to screen clients anymore because I have to take any work that I can out of sheer desperation. This has led to me being cancelled on last minute repeatedly, it’s led to me being sexually assaulted by clients, and it’s led to me resorting to concealed carrying a handgun instead of screening clients and checking references. That’s how bad things have gotten.”
This desperation has been noticed by clients, who now frequently demand more services for less money, and are violent with increasing frequency.
“I was raped by a client very recently,” TS Sonja continues. “I’ve heard of others being subjected to violence and creepy behavior much more often since this law passed.”
The war on drugs was never about drugs. That much was obvious to anyone paying attention, but was finally confirmed in 2016 when Harper’s published for the first time a 1994 interview with Richard Nixon’s former domestic policy chief John Ehrlichman—one of the people actually in charge of getting that horrific war off the ground.
“The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people,” he told writer Dan Baum. “You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.”
The war on drugs did succeed in one respect, though. It built up a huge correctional system to house what is sometimes referred to as the “relative surplus population”—people willing to work but unable to find jobs, and those unable to work at all. So after half a century, with the human cost of the war on drugs undeniable to everyone but neo-Confederate Jeff Sessions types, laws are finally, fitfully starting to loosen up. But the problem with starting a system is that it usually finds a way to continue even after the initial justification is gone. There needs to be some group to be demonized, prosecuted for the “public good,” and housed in places of detention. And now, with FOSTA, that group is sex workers.
This new war mirrors the old one in its the idea that you have to lock up en masse the people creating the “problem,” rather than examine any ways of reducing harm or looking at root causes. The anti-trafficking organizations that have major political sway are in fact not anti-trafficking organizations at all—they are anti-sex work, full stop. The Coalition Against Trafficking in Women, a group with enough sway to end up in the New York Times opinion pages, and that has Special Consultative Status with the United Nations, sees zero difference between forced and voluntary prostitution. Similarly, Demand Abolition, a huge funder of law enforcement, conflates sex trafficking and prostitution on their own website. For groups like these, a war on drugs-style approach to wiping out sex work makes perfect sense.
“Demand Abolition funds 11 cities across the United States to basically put a lot of money into increasing police presence of the sex trade,” Magali Lerman tells me. Lerman is a former survival sex worker who is now an advocate. She is a partner at Reframe Health and Justice and a board member of Sex Workers Outreach Project USA. She’s witnessed Demand Abolition’s work firsthand, as Seattle is one of the cities they fund. “These sites are like ground zero for the war on sex trafficking mimicking the war on drugs.”
“This is the abolitionist approach to the sex trade, like we saw with the war on drugs: the idea that, if we can just end the drug supply, people aren’t going to use drugs,” she points out. “We see the same horrible consequences of the war on sex trafficking play out in the war on drugs. Mandatory minimums, increased sanctions, asset forfeiture, horrible bans, and the weaponization of public health against people.”
Michael Fattorosi, the self-proclaimed “porn lawyer,” agrees. “I think this is a new war on sex workers,” he says. Now that the war on drugs is winding down, authorities need what he calls “low-level consensual sex sellers and buyers” to replace drug users in order to keep things humming along. “They’re using the backs of sex workers” to further their agenda, he explains.
FOSTA making it illegal to find clients online means that a whole generation of sex workers who never had to work outdoors—traditionally the most dangerous place for the trade—is now moving onto that ground. The increased number of workers on the street also means that prices are going down, and in some places way down.
While doing research and outreach work in Seattle, Magali Lerman noticed that FOSTA’s passage led to a near-immediate fourfold increase of people working on the street.
She breaks it down: “Because of [FOSTA], market prices have dropped incredibly. The market price here for a blowjob on the street in Seattle used to be between 40 and 60 bucks, and now it’s between 10 and 20. That's how much it’s driven down market prices. Therefore, people who were struggling to survive period really just can’t survive now.”
Dulcinea Pitagora, a psychotherapist and sex therapist who is a former sex worker, has a caseload of around 25-30% sex workers. This has led them to see firsthand the toll of the new bill.
“I’ve started noticing a spike in issues across the board, whether they were mental health issues or occupational relational issues, from every single person who is a sex worker,” they tell me. “Everyone's anxiety has spiked. If they had pre-existing mental health issues, all those are being exacerbated. Panic attacks are increasing, depression is increasing, anxiety is increasing… People who are suicidal are having more suicidal ideations. I have clients who know people who have gone missing or have committed suicide, and they're dealing with trauma from that.”
So with a worker base hurting physically, financially, and emotionally, a new type of exploitation is coming into being. Lerman notes that she’s seen five times as many pimps since the passage of the bill.
Lola Balcon, a community organizer for sex workers’ rights, points out that, in addition to sex workers going missing and dying since the law’s passage, this means a law supposedly meant to cut down on trafficking has actually caused it. She talks about how “third-party managers”—a term she prefers to “pimps”—have been taking advantage of the new climate.
“We know sex workers who have gotten into exploitive trafficking situations immediately after SESTA passed,” she says. “Third-party managers started texting sex workers saying the game has changed, and they weren’t wrong because a lot of people just did not have access to clients. If you show up to work and your workplace is burned down to the ground, you might say yes to a bad or desperate situation.”
“People like to use ‘the oldest profession’ to describe people who do a particular type of sex work,” says HD, a New York-based male sex worker. “But perhaps the second-oldest profession is the procurer, the person who comes to a sex-working person and offers them the clientele that have now become difficult to acquire. The kind of predatory soliciting of that service that the internet had done a great job of making less necessary and nearly eradicated, [FOSTA] has now created a vacuum, and there are certainly opportunists who are willing to fill it.”
All of this—the violence, the worsened economic circumstances and stresses, the increased exploitation, the shadowbanning—would be awful no matter what. But what makes it worse is that the people most directly affected by FOSTA saw it all coming, and no one bothered to ask them.
“I immediately saw the threat that it posed to the methods of screening clients, the methods of acquiring clients, censoring of harm-reducing information that can occur or that is put in place between sex workers,” HD says of his thoughts when he first heard about FOSTA. “The sex-working community saw the iceberg coming. No one was heeding our call to avoid it, and we slammed directly into it.”
It wasn’t only sex workers raising the alarm. Plenty of anti-trafficking organizations, law enforcement groups, and academics were against FOSTA, mostly for the simple reason that online ads provide a way to locate people. So if online ads are gone, the criminals who use them to advertise trafficking victims will change to harder-to-find means.
“It’s gonna drive the people who are the most heinous criminals in this category deeper underground, more onto encrypted sites on the internet where they’re much more difficult to find,” explains HD.
“It disproportionately affects sex trade and not sex traffic victims,” agrees Amanda. “It actually increases the harm to sex traffic victims by pushing it more underground, because prior to this law enforcement actually relied on resources such as Backpage to keep some sort of tab on the people that they are investigating. Now it’s gonna go into the dark web.”
Not only does FOSTA make the problem it’s ostensibly meant to solve—sex trafficking—actually worse and punish people who do the job voluntarily, it’s also aimed squarely at the First Amendment.
“The First Amendment prohibits Congress from passing laws that create penalties for certain types of speech based on the content or based on the viewpoint it's expressing,” explains the EFF’s Mackey. But under FOSTA, “if you are an online speaker or own a website, and you do something that could be construed as promoting or facilitating prostitution, you have criminal liability. If you are advocating for decriminalization or legalization of prostitution and you have a website, or there’s an action section where people can provide information and resources, I think there’s a good question on whether or not that could be construed as promoting prostitution.”
Fattorosi strongly believes that the purpose of the law had nothing to do with trafficking at all, but instead with the need for the government to make an end run around section 230 of the Communications Decency Act. It’s a provision that protects website owners: If someone puts illegal content up on a website of yours, you’re not liable for the harm. It’s the whole reason that websites like YouTube, which has plenty of user-generated content of dubious legality, can continue to exist. If YouTube had to pay a fine every time someone uploaded a ripped song, they wouldn’t be long for this world. But under FOSTA, any website that hosts content deemed to be supporting sex trafficking or prostitution will be liable for the content.
“This isn’t about rescuing kids,” the lawyer tells me. “They don’t need FOSTA to rescue kids. They need FOSTA to strip CDA section 230 protections.”
His theory is borne out by facts. The changing of section 230 was done in response to a court case charging Backpage with felony pimping. The California case—brought by liberal darling Kamala Harris, then the state’s Attorney General—was won by Backpage, with the judge citing section 230 as the reason. FOSTA came about, essentially, as a way to get around the courts to ensure that, no matter what a judge decided, Backpage would be out of business.
The agenda of publicly declaring a war on trafficking while actually making life worse for sex workers and making trafficking more difficult to detect is being met with organizing efforts, even as attempts are made to create FOSTA-style laws in other countries. Sex workers are lobbying, holding candidate forums, and generally raising hell to let people know that they deserve to have the same rights afforded to anyone else, in any job.
“Sex work is work,” HD reminds me toward the end of our conversation. “What [FOSTA] did was it made the job so much more unsafe and difficult. It’s perfectly okay to take a negative view on selling sex, but regardless of your view of the work, the worker themselves has a right to safety.”