A new bill intended to combat sex trafficking also outlaws online speech and information designed to protect the health and safety of sex workers. On Feb. 27, the U.S. House of Representatives passed H.R. 1865, titled the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA), a bill that paints with such a broad brush that anybody who provides online information promoting the well-being of sex workers could be subject to criminal prosecution.
According to the Sex Workers Outreach Project (SWOP), an organization dedicated to protecting the human rights of sex workers, FOSTA was written to include “all prostitution, not simply trafficking situations.” The bill outlaws the promotion or facilitation of prostitution, as well as reckless disregard of actions contributing to sex trafficking. According to SWOP, the bill’s prohibitions extend to informational campaigns that are designed to protect the safety and well-being of sex workers.
“‘Promotion or facilitation of prostitution’ includes harm reduction and anti-violence tactics,” SWOP wrote, “including: Sharing safety information and techniques such as how to screen for violence; Online advertising which allows people to work in safer locations and be more discerning about clients; Hosting information about individuals who have previously victimized people in the sex trade.”
The language of FOSTA explicitly criminalizes “whoever uses or operates a facility or means of interstate or foreign commerce or attempts to do so with the intent to promote or facilitate the prostitution of another person.” As SWOP points out, “This extends to anyone using the internet — service organizations, sex workers, peers and trafficking victims.”
According to the Electronic Frontier Foundation (EFF), the bill will also undermine Section 230 of the Communications Decency Act (CDA), which protects online platforms from being held liable for the speech of their users.
“Without Section 230, most of the online platforms we use would never have been formed — the risk of liability for their users’ actions would have simply been too high,” EFF elaborated.
In addition to its criminal provisions, FOSTA makes possible civil suits brought by state Attorneys General targeting advertisers on websites that enable communication about sex work.
“Without question, Internet platform providers should not be criminalized for speech indulged in by their users, whether or not they are aware of the content of that speech,” said Libertarian National Committee Chair Nicholas Sarwark. “Gutting Section 230 is not a solution to stopping human trafficking. Internet giants like Facebook and Google may have the resources to fight the onslaught of lawsuits that would likely ensue. Small startups do not.”
It’s important to distinguish between the victims of sex trafficking, who are forced into captivity by violent abductions and imprisonment, and the people who choose to engage in sex work for any number of voluntary reasons.
“The common understanding of sex trafficking involves the kidnapping of victims and forcing them to work as sex slaves,” Sarwark said. “Kidnapping and slavery are already illegal, and perpetrators should be vigorously prosecuted. Anyone kidnapped or enslaved is a victim. For people voluntarily engaged in prostitution, though, neither the sex worker nor the customer is a victim. Both are acting voluntarily. Prostitution is legal in some jurisdictions in Nevada, and it should be legal everywhere.”
The real danger for sex workers comes not from their line of work but from the legal system that keeps them hidden and makes it difficult for them to benefit from institutions that protect the rest of us from violence and abuse.
“Whenever government tries to make consensual activities a crime, not only do the activities continue unabated but their illegality creates collateral damage by driving the activities to the black market,” Sarwark said. “Prohibition had little effect on the consumption of alcohol, but it increased the profit margin in booze and created a great new business opportunity for organized crime. Richard Nixon’s war on drugs did not measurably decrease the use of drugs, but it made billions for murderous drug cartels. Likewise, victims of sex trafficking will see little benefit from FOSTA. Sex workers who enter the trade voluntarily, on the other hand, will be pushed into a much more dangerous working environment.”
Libertarians believe that society suffers not from too few laws but from too many. One of the top priorities of Libertarians elected to office will be the repeal of old, antiquated, counterproductive laws like those prohibiting consensual adult activity. More than 2,000 Libertarians are running for local, state, and federal office in 2018 to help make the United States more free and prosperous.
