The U.S. Senate just voted 97-2 to pass the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA, H.R. 1865), a bill that silences online speech by forcing Internet platforms to
censor their users. As lobbyists and members of Congress applaud themselves for enacting a law tackling the problem of trafficking, let's be clear: Congress just made trafficking victims less safe, not more.
The version of FOSTA
that just passed the Senate combined an earlier version of FOSTA (what we call FOSTA 2.0) with the Stop Enabling Sex Traffickers Act (SESTA, S. 1693). The history of SESTA/FOSTA -- a bad bill that turned into a worse bill and then was rushed through
votes in both houses of Congress2 -- is a story about Congress' failure to see that its good intentions can result in bad law. It's a story of Congress' failure to listen to the constituents who'd be most affected by the laws it passed. It's also the
story of some players in the tech sector choosing to settle for compromises and half-wins that will put ordinary people in danger. Silencing Internet Users Doesn't Make Us Safer
SESTA/FOSTA undermines Section 230, the most
important law protecting free speech online. Section 230 protects online platforms from liability for some types of speech by their users. Without Section 230, the Internet would look very different. It's likely that many of today's online platforms
would never have formed or received the investment they needed to grow and scale204the risk of litigation would have simply been too high. Similarly, in absence of Section 230 protections, noncommercial platforms like Wikipedia and the Internet Archive
likely wouldn't have been founded given the high level of legal risk involved with hosting third-party content.
The bill is worded so broadly that it could even be used against platform owners that don't know that their sites are being used for trafficking.
Importantly, Section 230 does not shield platforms from liability under federal
criminal law. Section 230 also doesn't shield platforms across-the-board from liability under civil law: courts have allowed civil claims against online platforms when a platform directly contributed to unlawful speech. Section 230 strikes a careful
balance between enabling the pursuit of justice and promoting free speech and innovation online: platforms can be held responsible for their own actions, and can still host user-generated content without fear of broad legal liability.
SESTA/FOSTA upends that balance, opening platforms to new criminal and civil liability at the state and federal levels for their users' sex trafficking activities. The platform liability created by new Section 230 carve outs applies
retroactively -- meaning the increased liability applies to trafficking that took place before the law passed. The Department of Justice has raised concerns about this violating the Constitution's Ex Post Facto Clause, at least for the criminal
The bill also expands existing federal criminal law to target online platforms where sex trafficking content appears. The bill is worded so broadly that it could even be used against platform owners that don't know
that their sites are being used for trafficking.
Finally, SESTA/FOSTA expands federal prostitution law to cover those who use the Internet to promote or facilitate prostitution. The Internet will become a less inclusive
place, something that hurts all of us.
And if you had glossed over a little at the legal details, perhaps a few examples of the immediate censorship impact of the new law
SESTA's passage by the U.S. Senate has had an immediate chilling effect on those working in the adult industry.
Today, stories of a fallout are being heard, with adult performers finding their content being flagged and blocked, an
escort site that has suddenly becoming not available, Craigslist shutting down its personals sections and Reddit closing down some of its communities, among other tales.
SESTA, which doesn't differentiate between sex trafficking
and consensual sex work, targets scores of adult sites that consensual sex workers use to advertise their work.
And now, before SESTA reaches President Trump's desk for his guaranteed signature, those sites are scrambling to
prevent themselves from being charged under sex trafficking laws.
It's not surprising that we're seeing an immediate chilling effect on protected speech, industry attorney Lawrence Walters told XBIZ. This was predicted as the
likely impact of the bill, as online intermediaries over-censor content in the attempt to mitigate their own risks. The damage to the First Amendment appears palpable.
Today, longtime city-by-city escort service website, CityVibe.com, completely disappeared, only to be replaced with a message, Sorry, this website is not available.
Tonight, mainstream classified site
Craigslist, which serves more than 20 billion page views per month, said that it has dropped personals listings in the U.S.
Motherboard reported today that at least six porn performers have complained that files have been
blocked without warning from Google's cloud storage service. It seems like all of our videos in Google Drive are getting flagged by some sort of automated system, adult star Lilly Stone told Motherboard. We're not even really getting notified of it, the
only way we really found out was one of our customers told us he couldn't view or download the video we sent him.
Another adult star, Avey Moon was trying to send the winner of her Chaturbate contest his prize -- a video
titled POV Blowjob -- through her Google Drive account, but it wouldn't send.
Reddit made an announcement late yesterday explaining that the site has changed its content policy, forbidding transactions for certain goods and
services that include physical sexual contact. A number of subreddits regularly used to help sex workers have been completedly banned. Those include r/Escorts , r/MaleEscorts and r/SugarDaddy .
As the sun sets on online freedoms, sex workers of all kinds are quietly and swiftly being silenced on social media. Rightfully they're fed up, and are fighting back with a new website Switter, a play on 'sex workers' and 'Twitter', which is an
alternative social network that's created by, and for, sex workers.
Switter's creation was initially in response to sites like Twitter, where those in the sex industry have been finding themselves "shadow banned", ie banned by the internet
company acting on its own motivations rather than banned by the laws of the land.
Sex workers have always been more or less banned by Facebook but since the new Sosta law, major companies are setting out to censor all sex content as th emores
practical or cost effective way of addressing the Sosta requirement to censor sex trafficking content.
Even Skype, the platform that many independent sex workers use to run their private shows, has specified in their latest Code of Conduct that
the services not be used for "inappropriate content or material" like "nudity" and "pornography."
The new social network obviously can't be US based so the mantle has fallen to an Australian company, Assembly Four.
The software is based on the open source Mastodon and does not have any built-in tracking, doesn't enforce real name policies, and doesn't' ask for any personal information for profiles.
Its early days yet, but the fledging social network says it
already has about 8,000 members.
The US has passed laws FOSTA/SESTA that make internet websites responsible for any user content related to sex trafficking. Websites can't distinguish sex trafficking from adult consensual sex work information so have respponded in the only way they can
be banning all sex work related content, just in case.
Cityvibe shut down completely,
the Erotic Review, the Yelp of the sex trade where men rate their experiences with sex workers, shut down advertisement boards in the United States,
NightShift shut down to review policies,
VerifyHim shut down its newsreel,
Craigslist personals section was shut down,
Reddit's prostitution-related subreddits were marked private and the site instituted new policies banning the sale of sex acts and drugs,
Google reportedly deleted its publicly shared
commercial sex-related advertising,
WordPress.com reportedly removed its commercial sex-related advertising sites,
Paypal reportedly disabled advertised accounts for commercial sex-related payment,
Rubmaps, Erotic Monkey, and
USA Sex Guide had extended maintenance periods over the weekend, suggesting upcoming changes due to the new law,
Microsoft is issuing new Terms of Service effective May 1st covering all of its platforms, including Skype and Xbox, to urge users
not to use the services to share pornography or criminal activity.
The sex trafficking sites Cityxguide and Backpage were reportedly seeing a surge in use by sex workers as the other sites shut down.
Perhaps there's an opportunity for European companies to get a look in and offer replacement services to the
The US authorities have taken control of a classified adverts website used by sex workers to advertise their services.
A notice was posted on Backpage.com's various international front pages late last week to inform visitors.
The site had
previously shut down the adult section of its US site, but critics had alleged that prostitution ads had simply moved to other pages.
The authorities claim that some of the adverts were for trafficked sex workers, but such claims are generally
hyped up by those campaigning to prohibit adult consensual sex work and rarely amount to any more than a few cases when properly investigated.
The US media has also reported that Backpage's co-founder Michael Lacey was arrested last week and his
The Californian authorities had previously attempted to close Dallas-based Backpage.com in 2016, when the state prosecuted the business's chief executive and two ex-owners - including Mr Lacey - over claims they had committed pimping
offences and generated millions of dollars by hosting sex trade ads. However, the case was dismissed on the grounds that the US's Communications Decency Act said that publishers should not be held responsible for content created solely by their users.
But last month, Congress passed a new law, the Allow States and Victims to Fight Online Sex Trafficking Act (Fosta). It states that websites that facilitate traffickers in advertising the sale of unlawful sex acts should no longer be granted the
It has been reported that President Trump will sign a Senate-approved version of the act into law this week.