SWOP Behind Bars Interview With Board Member Alex Andrews On The Electronic Frontier Foundation (EFF) suit filed in opposition to FOSTA/SESTA
WIKIPEDIA: The Stop Enabling Sex Traffickers Act (SESTA) and Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) are the U.S. Senate and House bills that as the FOSTA-SESTA package became law on April 11, 2008.
WIKIPEDIA: FOSTA/SESTA clarifies the country’s sex trafficking law to make it illegal to knowingly assist, facilitate, or support sex trafficking, and amend the Section 230 safe harbors of the Communications Decency Act (which make online services immune from civil liability for the actions of their users) to exclude enforcement of federal or state sex trafficking laws from its immunity.
COYOTE RI Adds historic context: In 1913, the Supreme Court case Hoke v. the United States decided that the United States federal government did not have the right to regulate the legality of sex work on a national level and that the decision was up to the states” (Cited in the below links).
I think the EFF should have used this in their challenge, also FOSTA was retroactive and it unconstitutional criminalized prostitution on a federal level. The Department of Justice (DoJ) sent a letter to House Judiciary Chairman Bob Goodlatte warning that the bill would be unconstitutional insofar as its repeal of Section 230 immunity had retroactive effect. They also claimed it would make it harder to prosecute traffickers and it details their efforts in locating victims. and yet now DOJ is fighting back against the FOSTA challenge and lets not forget that they just put out a bogus video:
That all said let’s get the inside scoop:
M.Dante: Hi ALEX! Thanks so much for taking time to talk about the Electronic Frontier Foundation (EFF) suit filed in opposition to FOSTA/SESTA. I just read David Greene’s article on the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (“FOSTA”). The Article claims the law was written so poorly that it “criminalizes a substantial amount of protected speech and, according to experts, actually hinders efforts to prosecute sex traffickers and aid victims.” You are one of the plaintiffs in this action. This is incredibly bold. Can you share with us a bit about who you are, what you do, and why you are so passionate about this issue?
A.Andrews: I work with folks who have been incarcerated; most of whom still are. SWOP Behind Bars seeks to provide non-judgemental support for people who are in prison and dealing with all the complications they experience there. When we look at the impact of incarceration on the lives of real people and their families, it’s not hard to see why our society is falling apart, I feel very strongly that our country has too long tried to legislate its way out of community based problems and SESTA/FOSTA is a prime example of how the legislative branch of our government fails to recognize all of its citizens. FOSTA chills sexual speech and harms sex workers. It makes it harder for people to take care of and protect themselves, and, as an organization working to protect people’s fundamental human rights we can’t allow the government – OUR government – to continue this path of destruction without pushing back.
M. Dante: Again referencing David Greene’s article it says: “Plaintiffs Woodhull and Alex Andrews offer substantial resources online to sex workers, including important health and safety information. This protected speech, and other harm reduction efforts, can also be seen as “facilitating” prostitution. And although each of the plaintiffs vehemently opposes sex trafficking, Congress’s expressed sense in passing the law was that sex trafficking and sex work were “inextricably linked.” Thus, plaintiffs are legitimately concerned that their advocacy on behalf of sex workers will be seen as being done in reckless disregard of some “contribution to sex trafficking,” even though all plaintiffs vehemently oppose sex trafficking.”
This sounds incredibly Orwellian. Let’s talk about this “inextricably linked” conflation confusion between promoting and facilitating sex trafficking, and discreet consensual transactional intimacy, or therapeutically erotic recreation.
A.Andrews: Well it’s just not that confusing. Sex Work is WORK and Sex Trafficking is a CRIME. We already have laws against that. We don’t need anymore laws that limit our ability to communicate with our community…to be able to provide resources for our community. What frustrates me more than anything is that I continue to see people crowing about the success of the FOSTA legislation on twitter and that it has “eliminated sex trafficking” but it hasn’t. Period. Its just made it harder to see. Is that what they really wanted? As Americans, I think we often like to think that if we don’t “see” it – then it isn’t real. The internet never trafficked anyone. The internet never exploited anyone. Its people who do that. Its people who harm each other and until we recognize our role in making people’s lives harder than we are no closer to eliminating sex trafficking than we are to opening a 7-11 on the moon.
I attended the Woodhull Sexual Freedom (SFS18) Conference this past weekend in Alexandria, Virginia and I was fortunate enough to be able to attend a panel discussion with the brilliant lawyers who are challenging this legislation. The people who sponsored this legislation claimed that it was so survivors of trafficking could sue websites that had hosted the content that allowed them to be trafficked. I posed the question to them at the end of the discussion and asked how many checks had survivors of trafficking received since the enactment of this law. The answer was ZERO.
M.Dante: So – This is all really similar to when former attorney general John Ashcroft had federal task force units take down the Big Dog bulletin and all indoor escorting as defined within the National “Circuit”, only now it is Backpage and all escorting and massage as “Trafficking”.
That said we know abolition is a political and professional agenda that reinvents itself every few generations. With that understanding, how do we maintain 1. consensual adult sex work and 2. criminal justice reform that is competent and empowered as far as getting bad guys e.g. child molestors or serial killers without harming survivors and workers, or clogging our courts with redundant, superfluous legislation for superficial senatorial and prosecutorial gains?
A.Andrews: Maintaining adult consensual sex work is going to be complicated the next few years. I fear that we are going to have to accept the fact that there is going to be some kind of regulation put in place before they finally realize that decriminalization is the answer. In the mean time – we have to continue to educate and inform the public every chance we get that sex workers are just like everyone else. We have families and car payments and worries over housing and we hustle. We have to start telling our stories and taking back our own narrative. We have to stop letting the anti trafficking lobby act as if they aren;t responsible for the war on sex work. We have to make our way into their spaces and show that that if their goal is to help people – then they have to learn to stop creating stigma and discrimination. They have to stop acting as if they are judge and jury. I’ve often said – if someone says they aren’t a victim – believe them. Make the programs and services client centric instead of just checking off boxes.
M.Dante: Thanks so much for taking time to speak with us about FOSTA/SESTA and the EFF suit in affiliation with Woodhull. We absolutely thank you – and salute you – for all you are doing, Alex!
David Greene’s Article: EFF Sues to Invalidate FOSTA, an Unconstitutional Internet Censorship Law | Electronic Frontier Foundation
EFF Sues to Invalidate FOSTA, an Unconstitutional Internet Censorship Law David Greene June 28, 2018 We are asking a court to declare the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (“FOSTA”) unconstitutional and prevent it from being enforced. The law was written so poorly that it actually criminalizes a substantial amount of protected speech and, according to experts, actually hinders efforts to prosecute sex traffickers and aid victims. In our lawsuit, two human rights organizations, an individual advocate for sex workers, a certified non-sexual massage therapist, and the Internet Archive, are challenging the law as an unconstitutional violation of the First and Fifth Amendments. Although the law was passed by Congress for the worthy purpose of fighting sex trafficking, its broad language makes criminals of those who advocate for and provide resources to adult, consensual sex workers and actually hinders efforts to prosecute sex traffickers and aid victims. EFF strongly opposed FOSTA throughout the legislative process. During the months-long Congressional debate on the law we expressed our concern that the law violated free speech rights and would do heavy damage to online freedoms. The law that was ultimately passed by Congress and signed into law by President Trump was actually the most egregiously bad of those Congress had been considering.
What FOSTA Changed
FOSTA made three major changes to existing law. The first two involved changes to federal criminal law:
First, it created an entirely new federal crime by adding a new section to the Mann Act. The new law makes it a crime to “own, manage or operate” an online service with the intent to “promote or facilitate” “the prostitution of another person.” That crime is punishable by up to 10 years in prison. The law further makes it an “aggravated offense,” punishable by up to 25 years in prison and also subject to civil lawsuits if “facilitation” was of the prostitution of 5 or more persons, or if it was done with “reckless disregard” that it “contributed to sex trafficking.” An aggravated violation may also be the basis for an individual’s civil lawsuit. The prior version of the Mann Act only made it illegal to physically transport a person across state lines for the purposes of prostitution.
Second, FOSTA expanded existing federal criminal sex trafficking law. Before SESTA, the law made it a crime to knowingly advertise sexual services of a minor or any person doing so only under force, fraud, or coercion, and also criminalized several other modes of conduct. The specific knowledge requirement for advertising (that one must know he advertisement was for sex trafficking) was an acknowledgement that advertising was entitled to some First Amendment protection. The prior law additionally made it a crime to financially benefit from “participation in a venture” of sex trafficking. FOSTA made seemingly a small change to the law: it defined “participation in a venture” extremely broadly to include “assisting, supporting, or facilitating.” But this new very broad language has created great uncertainty about liability for speech other than advertising that someone might interpret as “assisting” or “supporting” sex trafficking, and what level of awareness of sex trafficking the participant must have.
As is obvious, these expansions of the law are fraught with vague and ambiguous terms that have created great uncertainty about what kind of online speech is now illegal. FOSTA does not define “facilitate”, “promote”, “contribute to sex trafficking,” “assisting,” or supporting” – but the inclusion of all of these terms shows that Congress intended the law to apply expansively. Plaintiffs thus reasonably fear it will be applied to them. Plaintiffs Woodhull Freedom Foundation and Human Rights Watch advocate for the decriminalization of sex work, both domestically and internationally. It is unclear whether that advocacy is considered “facilitating” prostitution under FOSTA.
Plaintiffs Woodhull and Alex Andrews offer substantial resources online to sex workers, including important health and safety information. This protected speech, and other harm reduction efforts, can also be seen as “facilitating” prostitution. And although each of the plaintiffs vehemently opposes sex trafficking, Congress’s expressed sense in passing the law was that sex trafficking and sex work were “inextricably linked.” Thus, plaintiffs are legitimately concerned that their advocacy on behalf of sex workers will be seen as being done in reckless disregard of some “contribution to sex trafficking,” even though all plaintiffs vehemently oppose sex trafficking.
The third change significantly undercut the protections of one of the Internet’s most important laws, 47 U.S.C. § 230, originally a provision of the Communications Decency Act, commonly known simply as Section 230 or CDA 230:
FOSTA significantly undermined the legal protections intermediaries had under 42 U.S.C. § 230, commonly known simply as Section 230. Section 230 generally immunized intermediaries form liability arising from content created by others—it was thus the chief protection that allowed Internet platforms for user-generated content to exist without having to review every piece of content appearing posted to them for potential legal liability. FOSTA undercut this immunity in three significant ways. First, Section 230 already had an exception for violations of federal criminal law, so the expansion of criminal law described above also automatically expanded the Section 230 exception. Second, FOSTA nullified the immunity also for state criminal lawsuits for violations of state laws that mirror the violations of federal law. And third, FOSTA allows for lawsuits by individual civil litigants.
The possibility of these state criminal and private civil lawsuit is very troublesome. FOSTA vastly magnifies the risk an Internet host bears of being sued. Whereas federal prosecutors typically carefully pick and choose which violations of law they pursue, the far more numerous state prosecutors may be more prone to less selective prosecutions. And civil litigants often do not carefully consider the legal merits of an action before pursing it in court. Past experience teaches us that they might file lawsuits merely to intimidate a speaker into silence – the cost of defending even a meritless lawsuit being quite high. Lastly, whereas with federal criminal prosecutions, the US Department of Justice may offer clarifying interpretations of a federal criminal law that addresses concerns with a law’s ambiguity, those interpretations are not binding on state prosecutors and the millions of potential private litigants.
FOSTA Has Already Censored The Internet
As a result of these hugely increased risks of liability, many platforms for online speech have shuttered or restructured. The following as just two examples:
Two days after the Senate passed FOSTA, Craigslist eliminated its Personals section, including non-sexual subcategories such as “Missed Connections” and “Strictly Platonic.” Craigslist attributed this change to FOSTA, explaining “Any tool or service can be misused. We can’t take such risk without jeopardizing all our other services, so we are regretfully taking craigslist personals offline. Hopefully we can bring them back some day.” Craigslist also shut down its Therapeutic Services section and will not permit ads that were previously listed in Therapeutic Services to be re-listed in other sections, such as Skilled Trade Services or Beauty Services.
VerifyHim formerly maintained various online tools that helped sex workers avoid abusive clients. It described itself as “the biggest dating blacklist database on earth.” One such resource was JUST FOR SAFETY, which had screening tools designed to help sex workers check to see if they might be meeting someone dangerous, create communities of common interest, and talk directly to each other about safety. Following passage of FOSTA, VerifyHim took down many of these tools, including JUST FOR SAFETY, and explained that it is “working to change the direction of the site.”
Plaintiff Eric Koszyk is a certified massage therapist running his own non-sexual massage business as his primary source of income. Prior to FOSTA he advertised his services exclusively in Craigslist’s Therapeutic Services section. That forum is no longer available and he is unable to run his ad anywhere else on the site, thus seriously harming his business. Plaintiff the Internet Archive fears that it can no longer rely on Section 230 to bar liability for content created by third parties and hosted by the Archive, which comprises the vast majority of material in the Archive’s collection, on account of FOSTA’s changes to Section 230. The Archive is concerned that some third-party content hosted by the Archive, such as archives of particular websites, information about books, and the books themselves, could be construed as promoting or facilitating prostitution, or assisting, supporting, or facilitating sex trafficking under FOSTA’s expansive terms. Plaintiff Alex Andrews maintains the website RateThatRescue.org, a sex worker-led, public, free, community effort to share information about both the organizations and services on which sex workers can rely, and those they should avoid. Because the site is largely user-generated content, Andrews relies on Section 230’s protections. She is now concerned that FOSTA now exposes her to potentially ruinous civil and criminal liability. She has also suspended moving forward with an app that would offer harm reduction materials to sex workers. Human Rights Watch relies heavily on individuals spreading its reporting and advocacy through social media. It is concerned that social media platforms and websites that host, disseminate, or allow users to spread their reports and advocacy materials may be inhibited from doing so because of FOSTA.
And many many others are experiencing the same uncertainty and fears of prosecution that are plaguing other advocates, service providers, platforms, and platform users since FOSTA became law.
We have asked the court to preliminarily enjoin enforcement of the law so that the plaintiffs and others can exercise their First Amendment rights until the court can issue a final ruling. But there is another urgent reason to halt enforcement of the law. Plaintiff Woodhull Freedom Foundation is holding its annual Sexual Freedom Summit August 2-, 2018. Like past years, the Summit features a track on sex work, this year titled “Sex as Work,” that seeks to advance and promote the careers, safety, and dignity of individuals engaged in professional sex work. In presenting and promoting the Sexual Freedom Summit, and the Sex Work Track in particular, Woodhull operates and uses interactive computer services in numerous ways: Woodhull uses online databases and cloud storage services to organize, schedule and plan the Summit; Woodhull exchanges emails with organizers, volunteers, website developers, promoters and presenters during all phases of the Summit; Woodhull has promoted the titles of all workshops on its Summit website; Woodhull also publishes the biographies and contact information for workshop presenters on its website, including those for the sex workers participating in the Sex Work Track and other tracks. Is publishing the name and contact information for a sex worker “facilitating the prostitution of another person”? If it is, FOSTA makes it a crime.
Moreover, most, if not all, of the workshops are also promoted by Woodhull on social media such as Facebook and Twitter; and Woodhull wishes to stream the Sex Work Track on Facebook, as it does other tracks, so that those who cannot attend can benefit from the information and commentary.
Without an injunction, the legality under FOSTA of all of these practices is uncertain. The preliminary injunction is necessary so that Woodhull can conduct the “Sex as Work” track without fear of prosecution.
It is worth emphasizing that Congress was repeatedly warned that it was passing a law that would censor far more speech than was necessary to address the problem of sex trafficking, and that the law would indeed hinder law enforcement efforts and pose great dangers to sex workers. During the Congressional debate on FOSTA and SESTA, anti-trafficking groups such as Freedom Network and the International Women’s Health Coalition issued statements warning that the laws would hurt efforts to aid trafficking victims, not help them.
Even Senator Richard Blumenthal, an original cosponsor of the SESTA (the Senate bill) criticized the new Mann Act provision when it was proposed in the House bill, telling Wired “there is no good reason to proceed with a proposal that is opposed by the very survivors it claims to support.” Nevertheless, Senator Blumenthal ultimately voted to pass FOSTA.
See: Are Tech Companies Trying to Derail the Sex-Trafficking Bill?
In support of the preliminary injunction, we have submitted the declarations of several experts who confirm the harmful effects FOSTA is having on sex workers, who are being driven back to far more dangerous street-based work as online classified sites disappear, to the loss of online “bad date lists” that informed sex workers of risks associated with certain clients, to making sex less visible to law enforcement, which can no longer scour and analyze formerly public websites where sex trafficking had been advertised. For more information see the Declarations of Dr. Alexandra Lutnick, Prof. Alexandra Frell Levy, and Dr. Kimberly Mehlman-Orozco.
See: EFF Sues to Invalidate FOSTA, an Unconstitutional Internet Censorship Law | Electronic Frontier Foundation
To keep things fair and balanced I am including this op/ed by Villa Nova Law in support of SESTA which appeared in The Hill, though am noting it may be offensive to both survivors and workers:
See: SESTA/FOSTA imposes accountability on internet service providers, remains misinterpreted by many | TheHill
BY SHEA M. RHODES, JAMIE PIZZI AND SARAH K. ROBINSON, OPINION CONTRIBUTORS
In the era of “fake news,” opposing viewpoints are instantaneously categorized as factually inaccurate or transparently biased. This knee-jerk reaction – this lack of critical thinking – is not only intellectually lazy, but a dangerous impetus for the spread of propaganda.
Recently, there has been widespread confusion surrounding SESTA/FOSTA, the new legislation that enhances the Communications Decency Act of 1996 (“CDA”). In short, SESTA/FOSTA closed the loophole that gave blanket immunity to internet service providers who failed to take measures to prevent people from being sold for sex through their websites. Now, rather than trying to meaningfully understand the legal impact of SESTA/FOSTA, self-proclaimed “sex worker advocates” have used the flurry of misinformation to their advantage, perpetuating a false narrative about the law’s supposed effects. The section of the law igniting the most controversy is § 2421A (a): ”Whoever, using a facility or means of interstate or foreign commerce or in or affecting interstate or foreign commerce, owns, manages, or operates an interactive computer service (as such term is defined in defined in section 230(f) the Communications Act of 1934 (47 U.S.C. 230(f))), or conspires or attempts to do so, 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.”
The very text of § 2421A (a) reveals that the law was intended to apply to websites, and not target the people who post on them. In fact, those who post were never subject to the protections of Section 230(c) of the CDA in the first place. Yet sex worker advocates proclaim SESTA/FOSTA infringes on their ability to sell sex.
Sex workers who post their own commercial sex advertisements were always (and still are) subject to applicable prostitution laws. SESTA/FOSTA did nothing to change this. Instead, the law is fundamentally concerned with websites who intend to facilitate “the prostitution of another person.” Therefore, individual people can continue to use the internet to discuss and advertise commercial sex on various websites, subject to the same applicable prostitution laws.
Simply put, SESTA/FOSTA holds internet service providers accountable for allowing their websites to serve as springboards for sex trafficking. Yet, sex worker rights advocates continue to push an alarmist agenda, mangling what the law actually says. They argue that it will increase the deaths of prostituted people everywhere because it will prevent screening efforts, “force” them “back out” on the street, and prevent them from earning a “livelihood” from this “empowering” career choice. These vain arguments were made bolstered by the fictitious proclamation that “survivors” said so.
Prostitution is incredibly dangerous. The admission by sex workers who claim to use certain websites to screen violent and homicidal sex buyers acknowledges the inherent danger of commercial sex. The passage of SESTA/FOSTA does not make prostitution more dangerous, because unless the websites used for screening were intended to promote or facilitate the prostitution of a person other than the one posting on the site, the screening websites and the users remain in the same legal position as they were prior to the passage of SESTA/FOSTA.
Furthermore, this argument relies on the premise that the information shared about commercial sex online is completely accurate. Meaning, all sex buyers use their real names and provide truthful information during transactions, that the people who sell sex always feel safe to use their identities to critique their customers, and that people who solicit sex via the figurative cover of the internet are inherently more trustworthy than those who do it in person. These presumptions are ludicrous.
Now that websites are no longer immune from legal action for their part in facilitating sex trafficking, some have smartly opted to remove content that could trigger violations. Craigslist promptly deleted its personal ad section;. Backpage.com was shut down by the government in early April following indictment of the site’s founders on criminal charges including facilitating prostitution.
Honestly, the most troubling aspect of the backlash against SESTA/FOSTA by “sex worker advocates” is the declaration that survivors of commercial sexual exploitation share their point of view. The word “survive” means to continue to function or prosper despite a hardship. We don’t call people who retire after successful careers, “survivors,” because the term connotes a more dangerous set of circumstances than those associated with most jobs, no matter how difficult. How does one “survive” something they claim is a relatively safe, meaningful choice? If “sex work” is so empowering, why misappropriate a label reserved for those who have endured trauma and catastrophe?
The most vocal opponents of SESTA/FOSTA have primarily been people with enough privilege to meaningfully choose selling sex as their ideal occupation – not as a necessary means of survival. This privilege permits their voices to be echoed from the parapets of national women’s magazines, providing their arguments with the most traction throughout this public discussion.
In reality, this point of view is not held by all survivors. Autumn Burris, a survivor of commercial sexual exploitation and founder of Survivors for Solutions told Medium in a recent interview that, “It is imperative for people to realize that systems of prostitution are inherently harmful. The claim that FOSTA-SESTA will harm ‘sex workers’ is a myth that must be challenged. Disrupting the ability of Backpage and other websites to no longer be able to facilitate the sale of people online is not what creates the harm. It is the buyers and traffickers that do that.”
SESTA/FOSTA won’t stop trafficking. But, it is an incredible blow to the commercial sex industry, – an industry that not even sex worker rights advocates can claim is fundamentally safe. To say otherwise is incredibly disheartening and politically distracting.
Shea M. Rhodes, Esq., is director and co-founder of Villanova Law Institute to Address Commercial Sexual Exploitation. Jamie Pizzi is a research assistant. Sarah K. Robinson, Esq. is the inaugural Justice for Victims Fellow for the Institute to Address Commercial Sexual Exploitation. In this position, Ms. Robinson provides direct legal services to victims and survivors of commercial sexual exploitation.
Strategic Consulting | Reframe Health and Justice
Strategic Consulting: Our clients are our partners, that’s why we choose them carefully: We help organizations with heart live up to their values. Reframe Health and Justice Consulting (RHJ) is a collective of individuals committed to developing and delivering holistic, harm reduction solutions for social justice and mission-driven organizations. We’ve got nerve, we’re accountable to excellence, we think beyond survival, we approach our work with love, and we are transformative.
Hey, Listen In: check out this track on SoundCloud: Peepshow Podcast Episode 12: FOSTA/SESTA with Kate D’Adamo, Gay Porn with Westley Woods, and Trans Representation with Chelsea Poe!
See: More from M. Dante with Lola Li and Heather Berg discussing #letussurvive and #survivorsagainstsesta in the Broke Ass Stuart interview from April 2018:
Why Sex Workers are Fighting the Anti-Sex Trafficking Bill – Broke-Ass Stuart’s Website