Slippery slope
To pressure the websites that sex workers frequent, Congress just carved a hole in Section 230, which has governed the internet for 22 years.
Photo Illustration by Lyne Lucien/ The Daily Beast
For countless folks who came of age in the 00s, finding a partner via the Craigslist personals section was a rite of passage. I remember pouring over the ads with friends, amazed at the sheer variety of sexual and romantic asks and desires out there, the strange and tantalizing mix of anonymity and eros and possibility. I brokered my best ongoing "casual encounter" through the Craigslist personals. I know others who met long-term partners and even spouses that way.
But as of Friday, the Craigslist personals section is no more. Consider it one of the first—but certainly not the last—casualties of new legislation passed by the Senate this week 97-2.
The bill, euphemistically known as the "Fight Online Sex Trafficking Act," or FOSTA, was passed by the House of Representatives in late February. It's been largely portrayed by the media and those in Congress as an "anti-sex trafficking" measure. But while doing nothing to realistically fight sex trafficking, it manages to muck up all sorts of other serious things.
FOSTA will "subject websites to criminal and civil liability when third parties (users) misuse online personals unlawfully," Craigslist explains in the brief notice that now appears in place of potential partners if you try to go to a personals listing .
Under current law, the site can't be held legally liable if someone uses veiled terms to solicit commercial sex—aka prostitution—through the Craigslist personals. But FOSTA will change that, opening up Craigslist (and every other digital platform) to serious legal and financial jeopardy should it accidently "promote" or "facilitate" prostitution.
Prostitution, mind you, is not sex trafficking, which has a distinct meaning both colloquially and under the law. In the simplest terms, prostitution involves consent and sex trafficking does not.
"Any tool or service can be misused," Craigslist said a statement. "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. To the millions of spouses, partners, and couples who met through craigslist, we wish you every happiness!"
Craigslist isn't the only one making changes since FOSTA's passage. On Friday, the adult-ad forum CityVibes disappeared. And on Thursday, Reddit banned several sex-related subreddits, including r/Escorts, r/MaleEscorts, and r/SugarDaddy.
Reddit said the purge was enforcing its new content policy, which bans "transactions for certain goods and services," including "paid services involving physical sexual contact." But frequenters of these subreddits say they were forums for sex-work news, tips, questions, and camaraderie, not places where sex workers advertised their services.
This failure to distinguish between ads for prostitution and any discussion of prostitution is part of what has sex workers (and free-speech advocates) so worried. Sex worker blogs could be shut down, and they could find their social-media accounts suspended simply for being honest about their work.
This is because the core of FOSTA makes it a federal crime to "promote or facilitate the prostitution of another person," punishable by up to 10 years in prison, plus fines. For promoting the prostitution of five or more people, the penalty is 25 years, and the same if promoting someone's prostitution "contributed to sex trafficking."
Sex workers don't have to worry about being punished for posting their own ads, but they could run afoul of the law if working in pairs or helping a colleague place an ad.
The primary target are websites, apps, messageboards, and other digital publishers, which have deeper pockets. To reach them, Congress had to carve a hole in Section 230, which has governed the internet for 22 years. It protects web platforms from being sued in civil court or criminally charged by state prosecutors for third-party (i.e., user-posted) content. (It doesn't apply for federal crimes.)
Section 230 says that unless they create the content in whole or part, these platforms shall not be treated as the speaker of such content, and good-faith efforts at content moderation (like banning ads that explicitly mention illegal acts or auto-filtering out content that contains prohibited words) do not change this. Under FOSTA, this won't apply when paid sex is concerned. That's why sites are scrambling right now to prohibit any content that could get them held liable.
It's probably too late, or at least would be if legislators get their way. FOSTA "shall apply regardless of whether the conduct alleged occurred… before, on, or after such date of enactment." This is what's known as an ex post facto law, and it's explicitly forbidden by the U.S. Constitution.
No less than the U.S. Department of Justice has urged against passing FOSTA, calling it unconstitutional and saying that it would make prosecuting sex traffickers harder. "You're heading in the wrong direction if you [pass a bill] that would raise the burden of proof in cases against sex traffickers," said Oregon Sen. Ron Wyden Wednesday from the Senate floor.
Wyden—who co-authored Section 230—was the only Democrat to vote against the bill, and Kentucky Sen. Rand Paul the only Republican. An amendment to FOSTA proposed by Wyden would have clarified that websites can try to filter out illegal content without increasing their liability, but it was overwhelmingly defeated.
Wyden stressed that FOSTA is not a matter of substituting some free-speech rights for a better ability to stop sex trafficking. Rather, it's imposing serious burdens while at best doing nothing for trafficking victims and quite likely making their lives worse.
For one thing, it incentivizes law enforcement to go after third parties rather than stop traffickers or rescue victims. It also takes away an important tool for finding trafficking victims—the open internet. This new paradigm creates huge incentives for cops and prosecutors to go after websites and apps rather than actual criminals—ensuring thatreal victims, and public safety, will suffer along with open expression. Online ads have allowed an untold number of victims to be identified and found. What's more, the digital trail of ads, emails, and texts can provide evidence that makes catching and prosecuting the perpetrators easier. Law enforcement loses this when traffickers switch to private, encrypted, or dark web forums.
Many sex-trafficking survivors and victims groups vocally opposed FOSTA, saying it fails to address the things they really need (like housing and job assistance) and will make saving future victims harder. Plus, even those being forced or coerced into prostitution benefit from things like screening out violent clients and not having to walk the streets.
The bottom line is that FOSTA "is not going to prevent sex trafficking [and] it's not going to stop young people from becoming victims," Wyden said. What it will do is create "an enormous chilling effect on speech in America," as sites move to squelch anything remotely related to a liability and "powerful political" forces weaponize it against minority voices.
We're already starting to see the chill, even though FOSTA hasn’t even been signed into law yet. And it goes beyond speech related to sex. For instance, Reddit's sex-work subreddit bans were accompanied by bans of forums for gun talk and trading gaming logins, among others.
While Reddit would still have Section 230 protection should any illegal conduct arise from these forums, it's hard to say how long that will last now that's Congress has decided to start making exceptions.
After all, how can we say that Craigslist should be prosecuted if its ads broker prostitution but not a gun sale that leads to the next school shooting? How can we say that social media is criminally liable if a "john" meets a 17-year-old girl there, but not if two terrorists hook up and hatch out plans through their DMs? Or what about the next time hackers post illegally obtained state secrets (or nudes) on some remote corner of some social forum?
Sex trafficking is horrific. But so are a lot of other crimes. And under FOSTA, our law effectively says that both sex trafficking and paid sex between two consenting adults are more grave offenses that rape, child molestation, mass murder, or anything else. What kind of logic is that?
The answer to this conundrum is that the creators of Section 230 were onto something. Because once we decide something like prostitution is so bad that it overrides it, what won't warrant an exception? And once we start treating technology as the guilty party in any badness it brokers, we will wind up with tech overlords terrified to let us speak about anything controversial at all.
