Fosta-Sesta

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President Trump signed a set of controversial laws enabling state and federal authorities to pursue websites that host sex trafficking ads in the Oval Office on April 11, 2018. Yvonne Ambrose of Chicago, (left) was in attendance. Her 16-year-old daughter was killed after being prostituted on Backpage.com. Ricky Carioti/The Washington Post via Getty Images

A new law intended to curb sex trafficking threatens the future of the internet as we know it

The controversial bill package FOSTA-SESTA has already impacted sites like Reddit, Craigslist, and Google — and that’s just the start.

By Aja Romano@ajaromano Updated Jul 2, 2018, 1:08pm EDT

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Wondering why Craigslist recently killed its (in)famous Personals section? You can thank Congress — and you can start bracing for more deletions and censorship to come.

This week, President Trump signed into law a set of controversial bills intended to make it easier to cut down on illegal sex trafficking online. Both bills — the House bill known as FOSTA, the Fight Online Sex Trafficking Act, and the Senate bill, SESTA, the Stop Enabling Sex Traffickers Act — have been hailed by advocates as a victory for sex trafficking victims.

But the bills also poke a huge hole in a famous and longstanding “safe harbor” rule of the internet: Section 230 of the 1996 Communications Decency Act. Usually shorthanded as “Section 230” and generally seen as one of the most important pieces of internet legislation ever created, it holds that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” In other words, Section 230 has allowed the internet to thrive on user-generated content without holding platforms and ISPs responsible for whatever those users might create.

But FOSTA-SESTA creates an exception to Section 230 that means website publishers would be responsible if third parties are found to be posting ads for prostitution — including consensual sex work — on their platforms. The goal of this is supposed to be that policing online prostitution rings gets easier. What FOSTA-SESTA has actually done, however, is create confusion and immediate repercussions among a range of internet sites as they grapple with the ruling’s sweeping language.

A screenshot of the personals section of Craigslist. Craigslist

In the immediate aftermath of SESTA’s passage on March 21, 2018, numerous websites took action to censor or ban parts of their platforms in response — not because those parts of the sites actually were promoting ads for prostitutes, but because policing them against the outside possibility that they might was just too hard.

All of this bodes poorly for the internet as a whole. After all, as many opponents of the bill have pointed out, the law doesn’t appear to do anything concrete to target illegal sex trafficking directly, and instead threatens to “increase violence against the most marginalized.” But it does make it a lot easier to censor free speech on small websites — as evidenced by the immediate ramifications the law has had across the internet.

What FOSTA-SESTA is intended to do: curb online sex work

FOSTA and SESTA began their respective lives as two different bills created in an effort to curb sex trafficking on online personals sites — in particular, Backpage.com.

From left: Backpage CEO Carl Ferrer, former owner James Larkin, COO Andrew Padilla, and former owner Michael Lacey are sworn in on Capitol Hill in Washington, DC, on January 10, 2017. Cliff Owen/AP

Backpage has long been known for its advertisements for sex workers (though these were formally removed from the site last year). It’s also seen numerous controversies related to illegal sex work; authorities have arrested individuals using it to pay for sex, and Backpage has aided law enforcement in investigations into ads on its site. In the past, authorities have taken down similar websites through targeted raids.

But previous attempts by authorities to hold Backpage responsible for illegal content on its website have failed due to Section 230’s dictum that websites aren’t liable for content posted by their users. This trend culminated in the December 2016 dismissal of a lawsuit designed to target Backpage for ads on its websites. The presiding judge explicitly cited Section 230 in his decision to dismiss.

Immediately following this dismissal, however, the tide rapidly seemed to turn against Backpage. In January 2017, a Senate investigation ultimately found Backpage to be complicit in obscuring ads for child trafficking. A month later, a documentary of survivors called I Am Jane Doe focused on Backpage, arguing that the safe harbor provision protecting Backpage from liability for ads on its sites should be done away with.

Congress listened. FOSTA and SESTA were created last year in response to the backlash, with the bill’s creator specifically naming Backpage in an attempt to ensure that future lawsuits like the one dismissed in 2016 could move forward.

This move drew immediate skepticism from within the legal community. Noted law professor and blogger Eric Goldman wrote of SESTA’s creation that “The bill would expose Internet entrepreneurs to additional unclear criminal risk, and that would chill socially beneficial entrepreneurship well outside the bill’s target zone.” He also pointed out that existing criminal laws already do most of what FOSTA-SESTA is designed to do — an argument bolstered by the fact that as recently as this month, Backpage was still facing legal troubles under existing laws that exempt it from 230 protection.

What FOSTA-SESTA probably won’t do: make sex workers safer

The bill’s supporters have framed FOSTA and SESTA as vital tools that will allow officials to police websites and allow sex trafficking survivors to sue those websites for facilitating their victimization. This is a disingenuous portrayal, however, because it fails to acknowledge the ways the internet makes it easier for sex workers to do their work safely, while also making it easier for law enforcement to document and gain evidence about illegal activity.

There is ample evidence, both anecdotal and researched, that giving sex workers a way to advertise, vet, and choose clients online makes them much safer than they are without an online system. When they’re forced onto the streets to find clients, sex workers have fewer advance safety precautions in place, no ability to effectively pre-screen clients, and no way to ensure that they work in safe, secure locations.

The bill also conflates consensual sex work with nonconsensual sex work by doing nothing to differentiate between various kinds of sex work and related content — even if the workers and content are all legally protected by local law. In Nevada, where prostitution is legal in some areas of the state, sex workers have been bracing for FOSTA-SESTA. And one Nevada sex worker recently blamed the bill’s passage for a new local referendum that is attempting to shut down legal adult brothels.

It’s important to note that not differentiating between consensual and nonconsensual sex work is part of an international legal standard codified in a 2000 United Nations protocol. This protocol was later expounded upon in a 2014 follow-up that examined issues of consent and asserted that “consent is always irrelevant to determining whether the crime of human trafficking has occurred.”

However, sex workers have argued vociferously that regardless of legal precedent, this conflation makes both consensual and nonconsensual sex workers less safe. Melissa Mariposa, who responded to the bill by creating an offshore-hosted, sex worker-friendly ISP, described the risks to the Daily Dot:

“If sex workers lose their storefront and safety tools, two things are going to happen,” Mariposa explained. “Number one, the predators will come out to play. Number two, prostitution is going to be pushed right back on the street and in hotel bars by women who will no longer want to see internet clientele and would rather take the risks freelancing. This will create more victims than it helps.”

There’s also plenty of research indicating that online avenues help officials do their work more effectively. A 2018 State Department report found that over a seven-year period, the number of identified victims of sex trafficking worldwide increased from fewer than 42,000 in 2011 to over 100,000 in 2017.

The task of identifying and effectively prosecuting sex traffickers continues to be challenging, however. In 2017, according to the same State report, U.S. law enforcement agencies initiated a combined total of 1,795 trafficking investigations. Of these, the Department of Justice initiated just 282 federal investigations involving human trafficking, and ultimately opened just 266 prosecutions for charges predominantly involving sex trafficking. Overall, of 553 defendants who were prosecuted on a range of smuggling charges including sex trafficking, just 471 sex traffickers were convicted, with sentences ranging from one month to life in prison.

Protesters march through London’s Soho district against the criminalization of sex work as well as the associated stigma, unsafe work conditions, and violence against sex workers on March 8, 2018. Wiktor Szymanowicz/Barcroft Media via Getty Images

These statistics illustrate just how hard it is to effectively prosecute sex trafficking on an individual level. The solution provided by FOSTA-SESTA, therefore, is to attack websites that facilitate trafficking, despite the fact that they also arguably make it easier for authorities to track down perpetrators, rather than empowering the law to more effectively prosecute the sex traffickers themselves.

All of this explains why a coalition of sex workers, advocates, sex trafficking survivors, and even the Department of Justice have all strongly opposed the idea that FOSTA-SESTA is an effective deterrent to sex trafficking.

The bill arguably endangers, rather than helps, at least one class of sex workers: adults who want to do their work consensually and safely. And if we consider the increased amount of transparency around sex work that will be lost when sites like Backpage are shut down, it’s also arguable that nonconsensual victims of sex trafficking will become less visible and more vulnerable by being shunted away from the visible parts of the web, into the deep web and dark corners of real life. All in all, FOSTA-SESTA is poised to put multiple vulnerable populations at a much higher risk.

Despite this, Congress overwhelmingly voted to pass both bills into law — which may have more to do with the larger moment of backlash against tech culture and its recent “breaches of trust and moral obligation,” as SESTA co-sponsor Sen. Richard Blumenthal put it, rather than the specific goals of these particular bills.

Then again, the final versions of both bills are far more sweeping than they were originally intended to be.

What FOSTA-SESTA actually does: rip a giant hole in the governing foundation of the internet

For two decades, the internet has functioned in accordance with Section 230 of the 1996 Communications Decency Act. Because of Section 230, courts have a clear foundation for adjudicating free speech on the internet. And, crucially, because of Section 230, website owners and server hosts aren’t constantly mired in endless lawsuits because someone said something inflammatory on one of their sites.

Without this clause exempting websites from liability for the actions of their users, most websites simply couldn’t afford to exist. They would have to perpetually ward off potential legal action based on the unpredictable behavior of their users, by devoting endless resources to moderating everything their users did, by simply banning user activities altogether, or by throwing millions of dollars at litigation costs. The vast majority of the internet as we know it — all but a handful of websites run by tech companies with massive resources, which arguably couldn’t have reached that status without Section 230’s protections — would be unable to function under this kind of pressure.

Enter FOSTA-SESTA, which create enforceable loopholes in websites if they appear to be allowing prostitution advertisements. That sounds specific, but it’s not.

FOSTA, a bill originally passed in February by the House, was initially set up to focus solely on sites like Backpage — that is, sites that seemed designed just to give a space to sex workers. But by the time it had made it to the House floor, the bill had gained broader, sterner provisions borrowed from the Senate version of the bill, SESTA — provisions that included all websites. This then ballooned into the bill combo that wound up headed to President Trump’s desk for signing. The EFF has called it “a bad bill that turned into a worse bill and then was rushed through votes in both houses of Congress.”

Instead of directly targeting websites known to facilitate sex trafficking, the FOSTA-SESTA hybrid essentially sets up a template for “broad-based censorship” across the web. This means websites will have to decide whether to overpolice their platforms for potential prostitution advertisements or to underpolice them so they can maintain a know-nothing stance, which would likely be a very tricky claim to prove in court.

The bill’s language penalizes any websites that “promote or facilitate prostitution,” and allows authorities to pursue websites for “knowingly assisting, facilitating, or supporting sex trafficking,” which is vague enough to threaten everything from certain cryptocurrencies to porn videos to sites for perfectly legal escort services. (In fact, one of the bill’s main supporters, the National Center on Sexual Exploitation, is arguably using the bill as a path to attack consensual adult pornography, which it has characterized as “violent,“ “degrading,” and “a public health crisis.”)

A screenshot of Backpage.com. Backpage.com

None of this actually prevents sex work advertising from being created or posted; it just puts the onus on website owners to self-police. SESTA’s provisions allow for legal action against any website found to be “knowingly assisting, supporting, or facilitating” advertisements for sex work. That means everyone and anyone, from Twitter to eBay to your uncle’s motorcycle-trading forum.

Predictably, the bill’s passage left many websites scrambling to figure out how to adjust.

FOSTA-SESTA side effects: websites are pressured into deleting content, whether or not it has anything to do with sex work

Two days after SESTA’s passage by the Senate, Craigslist removed its entire personals section from its platform, citing the difficulty of adhering to the new changes to the law if it continued to allow open posting on its dating section. The move left Craigslist users quizzing one another for alternative personals sites, and sent some into the “activity” category with wink-wink requests for “activity partners.”

Another longstanding escort service, Cityvibe — which tacitly hosted sex workers advertising under the guise of legal services like escorting and massages — shut down altogether, reportedly without refunding money to sex workers who had been posting ads there.

The furry-centric dating website Pounced.org was another casualty of the bill combo. When it shut down overnight a week after SESTA passed, the website left a lengthy note explaining that specific language in FOSTA undermined Section 230 in a way that made “sites operated by small organizations like pounced.org much riskier to operate.”

A screenshot of Pounced.org. Pounced.org

“We don’t promote prostitution or sex trafficking,” the site’s moderators wrote. “We’re a personals site for the furry community. … The problem is, with limited resources and a small volunteer staff, our risk for operating the site has now significantly increased.”

In addition, Reddit banned multiple subreddits in response, including r/escorts, r/maleescorts, r/hookers and r/SugarDaddy. Redditors at other forums, like r/SexWorkers, rapidly began redefining and re-articulating their rules in order to keep their own communities safe from the crackdown. Meanwhile, sex workers who had been relying on jobs coming from various websites were left grappling with a complicated litany of precautions to take in order to continue trying to conduct their business safely in the shadow of the new law.

Motherboard also reported that in the wake of SESTA’s passage, Google began reviewing and deleting content directly off the Drive accounts of several of its users. Though the tech giant has a longstanding policy against stashing sexually explicit images and videos on its popular cloud storage system, it appears to have begun a proactive sweep of its user accounts in response to the bill.

Similarly, in late March, Microsoft abruptly announced a drastic change to its policies and enforcement of those policies that effectively scoured its many services, including Skype and its cloud storage products, of any adult content. This drew complaints from Skype users, who feared that Microsoft’s auto-detection filters would ban any Skype user who happened to be involved in consensual sexual activity using the platform.

It should go without saying that it’s possible to possess pornographic material without being connected to a prostitution ring. But again, the vague terms of the bill mean that the only choice for most websites in terms of how they approach policing user content lies between strategic inaction or preemptive overreaction. In cases like Google and Craigslist, preemptive overreaction seems to be the preferred model. While neither Google nor Microsoft explicitly tied its sudden censorship and policy enforcement to the passage of the bills, the timing was hard to ignore.

What FOSTA-SESTA could lead to: the further eroding of internet safe harbor protection

Internet freedom advocates have argued strenuously against FOSTA-SESTA. One of the biggest fears surrounding the bill combo is that it could create room for more bills that attempt to create even more exemptions in Section 230.

This isn’t an alarmist cry; in recent years, prosecutors and litigants have been gunning hard for Section 230, and courts have responded with a strikingly high number of rulings in which they found that safe harbor protections did not apply in specific cases. This trend has given rise to fears that the primary law protecting the internet as we know it is under attack.

Legal experts and internet advocates have strongly opposed “any law that alters the framework set up by Section 230.” We’ve already seen that weakening any part of it yields immediate self-censorship and preemptive deletion on the part of several websites — and this is before lawsuits have even entered the picture. Without Section 230 protections, websites would essentially be forced to hedge resources against unforeseen lawsuits based on unpredictable activity on the part of their users.

The vast majority of the internet’s infrastructure comprises websites and platforms that lack the resources to handle this measure of liability. Those websites, or parts of them, would simply be shuttered overnight, as we’ve seen with Craigslist’s personals sections, or would presumably do away with many spaces where their users can interact and have a voice.

“This bill jeopardizes not only classified ads sites but also dating apps, discussion forums, social media sites, and any other service that hosts user-generated content,” said Emma Llansó of the Center for Democracy & Technology in a public statement opposing the bill. “Smaller platforms will also face the real risk that a single lawsuit could put them out of business.”

There’s ample historical precedent for this argument because it’s why Section 230 was established to begin with. In Zeran v. America Online Inc., the first major federal court case to discuss Section 230, the court’s decision made it clear that there was a dire need to protect websites from the “impossible burden” of endless legal threats:

Whenever one was displeased with the speech of another party conducted over an interactive computer service, the offended party could simply “notify” the relevant service provider, claiming the information to be legally defamatory. In light of the vast amount of speech communicated through interactive computer services, these notices could produce an impossible burden for service providers, who would be faced with ceaseless choices of suppressing controversial speech or sustaining prohibitive liability.

This is why many activists and internet freedom advocates have charged FOSTA-SETA with threatening free speech. As for Section 230, making it susceptible to more exemptions would render the whole clause useless as a governing tool.

Whom FOSTA-SESTA might actually help: corporate giants that want more control over the internet’s untamed spaces

There is one group that does stand to gain a significant amount from this bill package: a network of corporate giants ranging from Hollywood studios to Silicon Valley behemoths.

Prior to SESTA’s passage in the Senate, a parade of celebrities including Amy Schumer and Seth Meyers filmed a PSA to promote it as a tool to fight sex trafficking. Disney threw its weight behind SESTA in a letter to lawmakers supporting the bill, and 20th Century Fox followed suit. But while plenty of well-meaning individuals might have sincerely wanted to “stop” sex trafficking, as the name of the bill suggests, the motivations for the corporate entities that chose to back the bills are more suspect.

A PSA calling on Congress to amend CDA 230 featuring Amy Schumer, Seth Meyers, Josh Charles, Tony Shalhoub, and others.

The EFF argues that the reason for Hollywood studio interest in FOSTA-SESTA is that it lays the groundwork for the industry to institute automatic censorship and filtering against user speech. The purpose of this would be to simultaneously crack down on any potential copyright threats, namely with the use of automated copyright bots, while corralling user innovation and creativity through channels that are controlled and monitored by preexisting companies.

In other words, the long-term goal would be to cordon off the Wild West of the internet by dividing former free speech zones into spaces controlled by monetized, corporatized entities — a system that would also favor monopolization and unfair competition by industry giants over small internet startups. The tech giant Oracle lent its support to SESTA in a letter opining that any new startup could access “virtually unlimited” technology, and further argued that good technology companies were all about data monetization and user base targeting — not “blindly run[ning] platforms with no control of the content.”

It’s important to note that at one point, tech giants like Facebook and Amazon were lobbying against FOSTA-SESTA through the interest group the Internet Association. But in the final months before the bills went to a vote, they backed off, switching from opposition to support after SESTA was changed to focus on platforms that provide “knowing assistance” to trafficking ventures.

Similar to their strange, glaring silence in the face of renewed attacks on net neutrality, many tech industry leaders seem willing to compromise on issues that will ultimately debilitate their much smaller cohorts on the internet. Small dating sites, Craiglist, Reddit, and the user-driven nonprofit Wikipedia (which has stridently opposed the bill package) have made it clear they can’t afford to suffer the long-term effects of FOSTA-SESTA — at least not without drastically overhauling their sites and everything about the way those sites operate.

It’s possible that the courts could play a role in overturning all or part of FOSTA-SESTA. The EFF is currently challenging the bill’s legality in court on behalf of three different plaintiffs — one is a digital library, one a masseuse, and one an activist— whose various livelihoods are all jeopardized by the bill.

But unless FOSTA-SESTA is overturned, either by court rulings or by new legislature from Congress that doesn’t seem to be forthcoming, those smaller sites might not have a choice. Whether or not Section 230 is ultimately weakened overall because of FOSTA-SESTA, it seems clear that we’re in a moment when many of the freedoms and protections we’ve previously assumed were woven into the fabric of the web are being systematically unraveled, challenged, and overridden by powerful special interest groups. If this keeps happening without abatement or countering, we will inevitably be faced with a drastically different, far less democratic version of the internet.

And as the immediate changes to the infrastructure of the web in the wake of FOSTA-SESTA

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