Bronstein's “Deplatforming sexual speech in the age of FOSTA/SESTA” (2021)
FOSTA/SESTA makes website operators like Google or Facebook criminally and civilly liable for content posted on their platforms that may be aiding and abetting illegal sexual commerce, meaning that website owners are accountable for the content that their users post. This change makes the online hosting of sexual speech, whether connected to trafficking or not, far riskier across the board.
Sexual speech online has experienced a significant chilling, including the collapse of entire sites like Tumblr, which was formerly a haven for individuals blogging about sexual and gender identity (Cavalcante 2018; Bronstein 2020). Social media, video messaging, and other online communication platforms like Facebook and Instagram have changed their terms of service and community standards to block people who are openly working in the sex trades and anyone whose content suggests an affiliation with sex work. Most recently, OnlyFans, the social media platform that rose to prominence during the COVID-19 pandemic as a place where users could monetize their explicit photographs and videos for consumption by monthly subscribers, announced that it would ban such content after 21 October 2021. The company blamed credit card companies for the decision, noting that financial institutions are increasingly reluctant to process sex-business-related transactions. Although quickly reversed once creators began abandoning the platform, the proposed ban is instructive. The new policies set by internet companies and, relatedly, in response to pressure from financial institutions are in many cases more restrictive than necessary to avoid liability. Yet most have gone into overdrive in their efforts to create distance from sexual speech and sex work to avoid potential legal problems and to attract investors and advertisers. Sex workers engaged in consensual adult exchanges maintain that these changes have reduced their ability to find and connect with clients, as well as restricted their access to harm-reduction or ‘bad date’ websites where information about clients is exchanged, which translates to increased danger on the job. Without the ability to advertise their services online, many sex workers have had no option but to work the streets or to secure clients through third-party arrangements (e.g. relying on pimps or brothels), which reduces their autonomy and the amount they are paid for their work (Blunt and Wolf 2020). There is no evidence that sex trafficking, especially the trafficking of minors which the laws especially sought to address, has been reduced. Instead, evidence has mounted to suggest that deplatforming efforts have pushed trafficking underground and made it harder for law enforcement agents to find credible leads and pursue prosecutions (Government Accountability Office [GAO] 2021).
Citing concerns about the effectiveness of the law amid protests from thousands of sex workers who object to its impact on their work and safety, a group of legislators including Reps. Ro Khanna and Barbara Lee of California, and Senators Elizabeth Warren of Massachusetts and Ron Wyden of Oregon introduced in December 2019 the SAFE SEX Workers Study Act, a bill to require the Department of Health and Human Services to conduct the first federal study on the health and safety of sex workers. The bill specified that community-based not-for-profit groups were to be included in the process of conducting surveys and interviews with sex workers, rather than solely law enforcement agents, in an effort to collect authentic accounts. The desired information included workers’ experiences of violence with clients, interactions with law enforcement, experiences of exploitation, and the effect of the new laws on housing stability and mental health. The study would also have analyzed the specific impacts of FOSTA/SESTA on worker safety, including the unforeseen impacts of the diminishment of sex workers’ access to client-screening, informationsharing and harm-reduction websites (DeChiaro 2021). The Khanna–Warren bill was referred to the Senate’s Committee on Health, Education, Labor, and Pensions, where it spent a year before failing on 31 December 2020, which the authors likely expected given the controversial nature of the proposed legislation. Had the bill passed, it would have launched the first national study of sex work that actively sought to include the voices of sex workers and could have provided a valuable window onto the effects of deplatforming.
Prior to FOSTA/SESTA, Section 230 allowed internet providers to post or republish user-generated content without holding those platforms responsible for whatever its users might do, including contracting for sex work ... Under FOSTA/ SESTA, platforms can be held criminally responsible if users are posting adverts for escort services, prostitution, and all forms of consensual and non-consensual sex work (Romano 2018). These laws also grant state attorneys general the right to bring a civil action against websites for hosting such content.
As FOSTA/SESTA advanced legislatively, the FBI moved to seize Backpage, an adult advertising site formerly used worldwide by sex workers and their clients. The site was shut down after Congress passed the legislation, but before it was signed into law. Backpage’s executives were not charged under FOSTA/SESTA, but under racketeering laws including money laundering, conspiracy to facilitate prostitution, and routing money through dummy bank accounts to hide illegal commercial activities from credit card companies, all of which are legal avenues for fighting trafficking that continue to be available. Critics argued that Backpage had a right to host sex adverts, as protected by the First Amendment, and warned that this action combined with the imminent new laws ‘could lead to other third party hosting sites to be subject to censorship’ (Porter 2018). The combined effect of the Backpage shutdown with the passage of FOSTA/SESTA reverberated globally, and within days about a dozen other sites known for prostitution-related advertising went dark.
[L]ess seen are the effects of these laws on sex workers outside the USA who use international internet services, but who are still subject to the updated terms of service that US-based internet providers have put into place. These global workers are vulnerable to having their accounts frozen or deleted like their American counterparts even if they are working legally in their home countries. Deprived of access to the digital platforms with the greatest number of users, they may have no option but to turn to regional or national internet services with far fewer users because of the reach of American law. Tichenor (2020) has demonstrated that FOSTA/SESTA has had deleterious effects on sex workers in Aotearoa, New Zealand, where sex work is decriminalized and there is no evidence of trafficking. New Zealand’s sex workers have had labour protections since the passage of the 2003 Prostitution Reform Act, which has provided greater ability to avoid exploitation, violence, and health risks. The online expansion of the sex industry contributed to these improved working conditions, especially by making safetyoriented information about clients easily accessible. Yet the FOSTA/SESTA laws and the shutdown of the US-based Backpage reversed these benefits for sex workers operating legally in Aotearoa. According to Tichenor’s ethnographic research, American laws have effectively rolled back the improved working conditions that decriminalization and online advertising made possible, especially for low-income, racial, and gender minorities and migrant sex workers. Workers feel pressured to accept clients they might otherwise avoid, engage in riskier forms of sex that they could otherwise refuse, or enter unsafe situations because they cannot afford to turn away clients. Many of the workers interviewed could not afford to pay the fees charged by escort services websites to find clients (nor tolerate their demands for advertising exclusivity), nor could they survive seeing far fewer clients per week. As a result, many returned to working the streets or working in brothels, even though they faced greater personal risk and earned less money. ‘FOSTA-SESTA’s policing of websites infiltrates settings well beyond its jurisdiction’, Tichenor (2020, 105) writes, stretching across the globe to affect sex workers far beyond the US borders.
The impact of FOSTA/SESTA on online sexual content has been swift and far-reaching. The new laws have resulted in numerous social media platforms censoring explicit and even non-explicit sexual content because policing all posts to avoid solicitations for sex or sex work is an unreasonable burden. Each iteration of censorship on social media has reduced the ability of sex workers engaged in consensual adult work to connect with clients and access safety-related information.
Hardesty recalled logging into TikTok to find that her account had been deleted without warning as part of a platform-wide purge of anyone who had linked to an OnlyFans account in their bio or even posted a Linktree (a third-party app that allows users to post links to all of their social platforms) with an OnlyFans link attached (Dickson 2020). The purge was related to updated TikTok community guidelines, which in keeping with FOSTA/SESTA forbid any posting or sharing of nudity, sexually explicit content, or ‘content that depicts, promotes, or glorifies sexual solicitation, including offering or asking for sexual partners, sexual chats or imagery, sexual services, premium sexual content, or sexcamming’ (TikTok 2020).
One of the best documented cases of FOSTA/SESTA’s effect on sexual speech has been that of the demise of the microblogging site Tumblr, which instituted a sweeping adult content ban in December 2018 that ultimately led to its collapse, both in terms of number of users and financial value (Bronstein 2020).
A recent study of Reddit’s efforts to deplatform hateful subreddits devoted to racism and fatphobia, however, indicates that extreme users may decamp rather quickly to alternative platforms (Chandrasekharan, Pavalanathan and Srinivasan 2017). Taken in the context of sexual speech, one can surmise that deplatformed sex workers and their clients will find other digital spaces to connect, but that those spaces are likely to be transient, less secure, and more financially exploitative given the marginalized status of their users. When Backpage shut down, for example, sex workers were forced to use other websites like Website1, which charges users ‘exorbitant fees’ (Tichenor 2020) and has strict rules barring users from advertising on competitor sites. The case of Tumblr also suggests that once a new platform develops a sufficient user base, sex workers will be kicked off to make the site ‘safe for work’ and attractive to investors and advertisers.
[T]here are other ways in which FOSTA/SESTA has compromised safety that may have been less obvious to lawmakers, although again were quite clear to sex workers at the outset. Corporate internet compliance with the laws does not differentiate posts related to sex trafficking from consensual sex work, and thus ‘bad date’ database sites where sex workers could pre-screen individuals and get warnings from others to decline work from a prospective client (blacklists) were immediately targeted for removal. These were sites where sex workers identified and reviewed clients to flag those with a history of violent behaviour, non-payment, or potential connections to law enforcement (Blunt and Wolf 2020). Sites like VerifyHim, which describes itself as ‘the biggest dating blacklist database on earth’, shut down its discussion board and mailing list, eliminating what advocates described as ‘a particularly vital safety and screening mechanism for sex workers’ (Tiku 2018). Platforms such as Redbook that previously allowed sex workers to advertise online and share safety information about disreputable clients were taken offline, forcing workers – disproportionately BIPOC women – onto the streets. Daisy Soderberg-Rivkin, a former content moderator for Google, recalled having to take down posts from sex workers warning others not to accept a client.
In a report prepared for Hacking/Hustling, a collective of sex workers and allies working at the intersection of technology and social justice, authors Danielle Blunt and Ariel Wolf reveal that when sex workers are identified by financial institutions, such as a bank, they typically lose all of their associated accounts and credit cards, even those used for mundane payments like mortgages and school tuition that are unrelated to sex work (Blunt and Wolf n.d.). A third of the workers they interviewed reported that they had been refused service by an online payment processor, and many indicated that the platform had also seized the funds in their account at the time of closure (Blunt and Wolf n.d.). In most cases, accounts were closed due to client actions, such as including a payment memo with triggering words like ‘nudes’ or ‘sex’ in online purchase notes, leaving even the most circumspect sex workers vulnerable to discovery.
This type of discrimination is especially harmful to sex workers, already stigmatized and marginalized, as it threatens their ability to be paid for their work and maintain control of their assets. Barring workers from mainstream financial technologies puts their ability to work in jeopardy, which in turn makes them more vulnerable to being trafficked.
A series of smaller payment processors like eMerchantBroker, Instabill, and Durango Merchant Services maintain offshore merchant accounts and have ‘high-risk client’ policies that are friendlier to sex workers, but they come at a steep price. Some of these online merchants take a cut of up to 50% of the payments processed, leaving workers subject to a form of usury that they cannot report to legal authorities given the nature of their work (Schofield 2019).
In the three years since FOSTA/SESTA was passed, law enforcement officials have pointed out that it has become more difficult to identify and find sex traffickers due to the fragmentation of online advertising.
The GAO report reveals that FOSTA/SESTA has not helped prosecutors pursue more trafficking cases, and in fact there has been a decline in federal sex trafficking cases since the laws went into effect. Despite the intended outcome of increasing prosecutions, the GAO report indicates that federal prosecutors have brought only one case under the criminal provision established by FOSTA for the promotion of the prostitution of five or more persons (USA v. Martono, No. 3:20-CR-00274), yet even in this case the District Attorney did not press trafficking charges.5 According to 2019 FBI data, the agency’s ability to identify and track sex trafficking victims and perpetrators, and gather evidence to support prosecution, has decreased due to the proliferation of new platforms, the time and personnel required to monitor them, and the variable responsiveness to legal requests for information.
[T]he concept of harm that is at the core of FOSTA/SESTA, namely the harm to trafficked individuals, does not take into account other harms associated with deplatforming sexual communication, and specifically the harm experienced by sex workers who depend on online spaces to make a living, but also to create community and find acceptance and solidarity.
When corporations working in concert with government tighten speech policies around sexuality in light of new laws or a drive for increased profits through favourable advertising environments or a hospitable climate for investors, our rights to speak about sex or to pursue our sexual lives freely are placed in jeopardy.