In March, the US Senate passed a bill known as the Fight Sex Trafficking Online Act (FOSTA), with ninety-seven votes in favour and only two opposed. This bill and its predecessor, the Stop Enabling Sex Traffickers Act (SESTA), seek to address widespread concerns about child trafficking in the sex industry by targeting internet platforms deemed to facilitate trafficking, particularly Backpage. It does so by making websites legally liable for the actions of their users, and making it easier for survivors of trafficking to file civil suits against them.
However, SESTA and FOSTA were highly controversial, with free speech advocates and sex workers emerging as the most vocal critics. FOSTA works by amending Section 230 of the Communications Decency Act, which, according to civil libertarians, is ‘the most important law protecting free speech online.’ This is because Section 230 was the basis on which users have been able to upload content to online platforms, ranging from social media to tube sites to chat forums, without undue censorship from hosts fearing legal reprisal. Some argue that, without this protection, the internet as we know it could not have come into being.
Sex workers have argued that FOSTA conflates sex work and trafficking in ways that censor, silence, and further endanger both sex workers and trafficking survivors, and some of these fears are already being realised. There have been reports of sex workers being shadow banned and permanently suspended from Twitter and Instagram. There are indications that peer education and resource sharing online will become criminalised. Backpage, which was used by sex workers across the world to advertise their services, was seized by the USA Department of Justice in early April, Craigslist Personals was shut down in March, and FetLife has cracked down on users advertising escort services. For many sex workers, especially those who are trans and people of colour, the loss of Backpage has meant the swift loss of their primary or sole source of income, as well as their means of screening and thus avoiding dangerous clients. Melissa Gira Grant described Backpage as ‘one step up from a shady [abortion] clinic’ – dodgy and unreliable, but still, for many, a lifeline. Reports that sex workers have disappeared since the seizure of Backpage are a sobering reminder of this.
Sex work is already criminalised and heavily policed in the USA, with sex workers fearing street sweeps and sting operations. Additionally, there has been a longstanding tradition of criminalising everything that surrounds sex work, such as third parties or the spaces in which (legislators assume) sex work occurs, rather than the exchange of sexual services for money itself. Especially in the digital age, this approach can have effects in jurisdictions where sex work is not criminalised, as Sydney-based sex workers who use Backpage to advertise recently experienced. Rather than reducing the prevalence of sex work, this tends to simply shift activity from one sector to another, or force sex workers to develop new circuits of communication. While sex workers have proved extremely adaptive and innovative in this respect, many are harmed and some even killed in the process, with the most marginalised in our communities at highest risk. To understand why this occurs, it’s important to consider two common features of efforts to control the sex industry and punish parties involved in the sale of sex: the conflation of sex work and trafficking, and moral panic surrounding ‘pimps’.
Sex work, trafficking, and their conflation
When Backpage was shut down, Mimi Walters, a USA congresswoman who supported FOSTA/SESTA, claimed that this was due to the passing of the bill. Senator Heidi Heitkamp joined Walters, proclaiming victory against traffickers. However, while concerns about Backpage’s poor practice in relation to trafficking are founded, Backpage was seized prior to FOSTA officially becoming law, and in the indictment released by the Department of Justice in April, no trafficking charges are listed. In fact, the 100+ criminal charges levelled against Backpage executives contained only one count of trafficking against Backpage CEO Carl Ferrer, who plead guilty and turned over information on his colleagues as part of a plea deal. Further, this charge was issued by the state of Texas, while all the federal criminal charges pertain to money laundering, conspiracy, or violations of the Travel Act, the latter being the means by which prostitution charges have been laid, since soliciting prostitution is not currently federal crime.
The media panic around ‘sex trafficking’ coupled with the actual charges that were laid against Backpage executives caused some sex workers to conclude that the furore surrounding Backpage was, in adult performer Anna Moone’s words ‘about punishing consensual sex workers, not rescuing sex trafficking victims.’ This reflects a strategic and unfortunately common slippage between sex work and trafficking, which enables ‘anti-trafficking’ measures to be turned against sex workers, often in moralistic, stigmatising, and punitive ways. This pattern persists despite the fact that trafficking is a profoundly misunderstood concept, and that research about the scope and nature of trafficking in the sex industry is notoriously exaggerated and unreliable. Finally, this pattern denies a simple fact that somehow bears repeating – things are not other things – trafficking is by definition forced or coerced, and sex work is no more coerced than any other form of paid labour under capitalism.
But when it comes to laws that target sex workers: facts don’t matter; community knowledge doesn’t matter; self-determination doesn’t matter. FOSTA/SESTA pits sex workers’ rights against those of trafficking survivors, ignoring that the work of peer sex worker organisations has aided anti-trafficking efforts far more than draconian laws, and that trafficking survivors have joined sex workers in speaking out against FOSTA/SESTA. This framing also ignores the excruciatingly obvious: removing online platforms that facilitate sex work drives commercial sex further underground, which makes it harder to find people who have been trafficked, and inadvertently silences both sex workers and trafficking survivors. In the words of Laura LeMoon, who is herself a sex worker and trafficking survivor:
… nobody is asking sex trafficking survivors directly about what we know from experience could help decrease trafficking. You know why that is? Because the answer is decriminalization of sex work. And politicians aren’t interested in making the bodies of marginalized people more free, they want our freedom and agency restricted and government owned.
Gotta criminalise something
Those who conflate sex work and trafficking or simply oppose sex work on ideological grounds have long scrambled for someone to blame and, in turn, criminalise. When going after sex workers directly looks bad, pimps can be a useful pariah: the ruthless exploiters profiting from human misery, the Backpage executives ‘prey[ing] on vulnerable victims, including children’, for example. Feminists of various stripes, the religious right, and others who seek the abolition of the sex industry keep this narrative alive as they argue for the criminalisation of ‘pimps’ and ‘johns’. They seem to imagine both as the Bad Men forcing Poor Women to do things they couldn’t dream of doing (or, rather, have never had to dream of doing).
Setting aside the harmful erasure of sex workers who are not cis women, this construction of the pimp is a gross simplification. I do not mean to suggest that pimps do not exist – in fact, some sex workers fear that the removal of online spaces in which to advertise will leave them dependent on pimps who seek to capitalise on their vulnerability. I do however wish to point out that this representation of the pimp as a menacing figure has been used to justify paternalistic policy that does sex workers harm, and to silence those who object. I myself have never met a pimp as they describe it. I have met brothel managers, who take a cut of sex workers’ earnings (often, like all bosses, more than they deserve), but who also provide us with spaces and equipment we use to work. If they are pimps, then so is every manager for whom I’ve worked in retail. I also know sex worker activists who have been called a ‘pimp’ by the very people who seek criminalise pimps, due to their advocacy for the decriminalisation of sex work. This appears to be an increasingly common silencing tactic.
Thing is though, even if this narrative of the pimp, john, and ‘pr*stituted person’ bore a closer resemblance to the reality of sex work, criminalising any one of these parties will not do what proponents hope it will. Laws that have taken this approach have always failed, and they have done grave harm to sex workers in the process, inadvertently or otherwise. For example, Swedish laws targeting ‘pimping’ have led to landlords evicting tenants suspected of being sex workers, a sex worker’s son being charged because he did not pay rent to his mother, and sex workers being forced to work alone, lest they be charged for pimping their colleagues. As historian Julia Laite explains:
I have charted a move of prostitution further and further underground as the legal and social stigma of selling and buying sex increased over the course of the century. The result, no matter who in the sex industry was targeted by the law (the prostitutes, the pimps, or the clients) was the same: darker alleys, more isolated furnished rooms, more abandoned lots, and more abuse and violence.
Save us from saviours
When sex work and trafficking are conflated and pimps are targeted, sex workers may no longer be the (explicitly) demonised party, but they remain stigmatised as victims and as objects. Not only are sex workers assumed to be voiceless, but those who wish to save them from their perceived plight maintain a material investment in upholding their voicelessness. As Laura Agustín shows, in the Victorian era, bourgeois women made a career out of this pursuit.
Middle (and ruling) class women continue to make a reputation out of ‘rescuing’ sex workers today. To see this in action, look no further than the open letter signed by A-list celebrities in 2015, which opposed Amnesty International’s policy in favour of the decriminalisation of sex work, despite overwhelming support for decriminalisation among sex workers, human rights organisations, and health organisations. Better yet, look at the video released to promote SESTA, in which Amy Schumer outrageously (and incorrectly) claims that buying a child for sex online is ‘as easy as ordering a pizza.’
As I’ve explained, for sex workers, the implications of FOSTA are immediate, and they are profound. But this doesn’t just affect sex workers. As Emily Smith astutely observed, sex workers are canaries in the coal mine when it comes to free speech. Civil libertarians understood this, arguing that FOSTA/SESTA would roll back free speech online for everyone, potentially in irreversible ways. Despite these far-reaching effects, I have found the silence on FOSTA/SESTA from feminists, unionists, and other groups that might consider themselves ‘allies’ to sex workers deafening.
If they come for sex workers’ free speech first and you say nothing, some day, you too might find it hard to speak out at all.