Out of Sight, Underground, Dead, or in the Streets: The Failure of Woodhull Freedom Foundation v. United Statesand the Consequences of FOSTA

By Alix Bruce

On April 11, 2018, President Trump signed the Fight Online Sex Trafficking Act (FOSTA) and the Stop Enabling Sex Traffickers Act (SESTA) into law as the Allow States and Victims to Fight Online Sex Trafficking Act of 2017.[1]  The Act, in an attempt to prevent sex trafficking, amends Section 230 of the Communications Decency Act to hold publishers of websites responsible if third parties use their platforms to post advertisements for prostitution.[2] However, there is a single, critical misconception in the Act itself: it conflates sex trafficking with consensual sex work.[3]

The line between sex trafficking and sex work has been highly contested for years.[4]According to the United Nations’ Trafficking Protocol, trafficking is “the recruitment, transportation, transfer, [harboring] or receipt of persons, by the means of threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability . . . for the purpose of exploitation . . . [which] . . . shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation . . . .”[5] FOSTA-SESTA paints a picture of rescuing people from the horrific world of sex slavery, amending Section 230(f) of the Communications Decency Act (47 U.S.C. 230(f)) to state, “Whoever . . . owns, manages, or operates an interactive computer service . . . with the intent to promote or facilitate the prostitution of another person shall be fined under this title, imprisoned for not more than 10 years, or both.”[6] Critically, the amendments to Section 230 do nothing to differentiate between human trafficking, which involves force or coercion, with consensual sex work.

The passing of FOSTA-SESTA into law destroys any digital safe harbor consensual sex workers had for contacting, vetting, and coordinating with clients.[7] Before the law was even passed, websites like Backpage and Craigslist were either seized by the government or shutting down their Personals sections, in which private individuals posted advertisements looking for friendship, companionship, or sexual meet-ups.[8] These sites were essentially forced to remove Personals to prevent the posting of advertisements for sex work.[9] Google reviewed and deleted content off personal Google Drives.[10] “Bad date lists”—websites shared between sex workers to alert each other about dangerous or even deadly potential clients—have been taken down.[11] Even if FOSTA-SESTA did not destroy any way for sex workers to do their jobs safely, the amendment to Section 230 effectively allows sex traffickers to flee into “the dark web,” where it is impossible for law enforcement and prosecutors to find traffickers, or be able to assist victims or survivors.[12]

This act also disproportionately affects low-income, transgender, and black individuals in essentially forcing them back onto the street.[13] Statistically, eleven percent of transgender people, and about four out of every ten black trans people, participate in sex work.[14] As transgender people are frequently excluded from so-called “legitimate” forms of work due to discrimination, they often instead turn to the informal economy, such as sex work, to make ends meet.[15]

In June 2018, the Electronic Freedom Foundation filed a lawsuit, Woodhull Freedom Foundation v. United States, claiming FOSTA-SESTA was unconstitutional. The plaintiffs, which included the Electronic Freedom Foundation (EFF), the Woodhull Freedom Foundation (“Woodhull”); Human Rights Watch (“HRW”); Alex Andrews, creator and operator of RateThatRescue.org, a website meant to make sex work safer and easier by providing fora to rate and review clients and third-party organizations such as child care providers; and Erik Koszyk, a massage therapist who had previously advertised on Craigslist, argued that forcing sex workers offline and heavy civil liabilities for website owners and managers was a violation of the First Amendment.

By shutting down community websites such as Reddit, Backpage, Craigslist, and others, the plaintiffs argued that federal government is effectively chilling free speech by preventing people from ever being able to post in the first place.[16] Organizations such as Woodhull, which would have permitted third parties to post information about the risks, options, and resources available for sex workers under FOSTA-SESTA, had to shut down their websites and censor their own speech.[17] Koszyk, a massage therapist who did not practice sex work but used Craigslist as a medium to find clients, claimed that his speech was restricted by the new standards after Craigslist removed Personals.[18]

The court dismissed the case on Monday, September 24, 2018 without examining the constitutional question, finding that no plaintiff had standing.[19] Woodhull based its standing on its annual Sexual Freedom Summit, which took place from August 2 through 5, 2018.[20] The event frequently hosts panels and debates on practicing safe sex, providing resources to sex workers, and empowering sex education and sex work.[21] The Summit, which Woodhull feared could be construed as “facilitating” sex work as prohibited by FOSTA-SESTA if any online organization or promotion of the Summit were to take place, was over by the time the suit reached the District Court; as such, there was concern regarding mootness, despite the Summit being a yearly event.[22] The court found that HRW did not have standing because, it claimed, there is no way “HRW . . . intends to promote or facilitate specific acts of prostitution in violation of state or federal law.”[23] This narrow reading of the text of the Act, which was written broadly and has resulted in equally broad consequences for sex workers, enables FOSTA-SESTA to continue functioning despite its clear chilling effect on free speech. Finally, the court found that Adams did not have the requisite mens reato be violating FOSTA-SESTA (acting “with the intent to promote or facilitate the prostitution of another person”), and that Kosyzk, despite the drop in business he suffered due to the removal of Craigslist Personals, could not prove that the reinstatement of Personal Advertisements would redress his injury.[24]

There is no indication yet whether the case will be appealed, nor whether others will file similar complaints in other jurisdictions in the wake of Woodhull Freedom Foundation’s dismissal. Judging by the dismissal of Woodhull Freedom Foundation plaintiffs based on lack of standing, it seems doubtful that any suit aside from one filed by a sex worker directly affected would prove successful in even being heard. Due to the illegality of sex work in the United States, it seems unlikely that sex workers, no matter their level of indigence, would step forward to bring a class action against the Act.

The impact that FOSTA-SESTA has had on the Internet speaks to more than simply a loss of First Amendment rights for consensual sex workers. The dismissal of the case—and the existence of the Act itself—are indicative of the threat to trafficking survivors and victims, and to safety on the Internet.

 

[1] Pub. L. No. 115-164, 132 Stat. 1253 (2018); see also Aja Romano, A New Law Intended to Curb Sex Trafficking Threatens the Future of the Internet as We Know It, Vox, https://www.vox.com/culture/2018/4/13/17172762/fosta-sesta-backpage-230-internet-freedom(last updated Apr. 18, 2018, 5:40 PM).

[2] Pub. L. No. 115-164, 132 Stat. 1253 (2018); see also Romano, supra note 1.

[3] H.R. 1865, 115th Cong. (1st Sess. 2017).

[4] See Global Network of Sex Work Projects, Sex Work is Not Trafficking, http://www.nswp.org/sites/nswp.org/files/SW%20is%20Not%20Trafficking.pdf (elaborating upon the difference between consensual sex work and forced sex trafficking).

[5] G.A. Res. 55/25 (III) (Nov. 15, 2000).

[6] H.R. 1865, 115th Cong. (1st Sess. 2017).

[7] Emily McCombs, ‘This Bill Is Killing Us’: 9 Sex Workers on Their Lives In the Wake of FOSTA, Huffington Post (May 11, 2018, 8:30 AM), https://www.huffingtonpost.com/entry/sex-workers-sesta-fosta_us_5ad0d7d0e4b0edca2cb964d9.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Siouxsie Q, Anti-Sex-Trafficking Advocates Say New Law Cripples Efforts to Safe Victims, Rolling Stone(May 25, 2018, 7:01 PM), https://www.rollingstone.com/culture/culture-features/anti-sex-trafficking-advocates-say-new-law-cripples-efforts-to-save-victims-629081/.

[13] Aviva Stahl, ‘We’re Monumentally Fucked’: Trans Sex Workers on Life Under FOSTA/SESTA, Broadly.(Aug. 2, 2018, 2:41 PM), https://broadly.vice.com/en_us/article/ev8ayz/trans-sex-workers-on-life-under-fosta-sesta.

[14] National Center for Transgender Equality, Meaningful Work: Transgender Experiences in the Sex Trade, 1, 13-14 (Dec. 2015), http://www.transequality.org/sites/default/files/Meaningful%20Work-Full%20Report_FINAL_3.pdf.

[15] See id. at 4.

[16] Complaint at 1-2, Woodhull Freedom Foundation v. United States, No. 10-cv-01552 (D.D.C. June 28, 2018).

[17] See id. at 7-8.

[18] See id. at 8.

[19] Woodhull Freedom Foundation v. United States, No. 18-cv-01552 (RJL), slip op. at 1, 28 (D.D.C. Sept. 24, 2018); see also David Green & Karen Gullo, FOSTA Case Update: Court Dismisses Lawsuit Without Ruling on Whether the Statute is Unconstitutional, Elec. Freedom Found. (Sept. 25, 2018), https://www.eff.org/deeplinks/2018/09/fosta-case-update-court-dismisses-lawsuit-without-ruling-whether-statute.

[20] See Complaint at 23, Complaint at 1-2, Woodhull Freedom Foundation v. United States, No. 10-cv-01552.

[21] See Woodhull Freedom Foundation v. United States, No. 18-cv-01552 (RJL), slip op. at 19.

[22] See id.

[23] See id. at 18, 24.

[24] See id. at 26-27.