By Aara Ramesh
A landmark law intended to radically alter the landscape of sex trafficking online has had a limited impact in the three years since it was enacted, according to a recent report released by the U.S. Government Accountability Office (GAO).
Earlier this week, the GAO published a mandatory analysis of how frequently and in what criminal and civil cases the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) of 2017 has been applied since it became law in 2018.
FOSTA was introduced to the House of Representatives in April 2017 and incorporated into its body a Senate version of the same legislation, the Stop Enabling Sex Traffickers Act of 2017 (SESTA). It was passed by the House in a bipartisan 388–25 vote in February 2019 and sailed through the Senate without any amendments in a 97–2 vote in March that year. President Donald J. Trump signed the bill — known popularly as FOSTA-SESTA — on April 11, 2018, officially making it law.
According to its proponents, the law is meant to tackle a loophole in the Communications Decency Act (CDA) of 1996. Section 230, the provision in question, has been hailed by some as the most consequential piece of legislation that has passed Congress in recent memory, with many believing it is responsible for the formation of the internet as we know it today.
Section 230, in saying online companies were not the publishers or owners of the content posted on their sites, gave these enterprises immunity from criminal prosecution and civil suits for anything transmitted through the platform, allowing many websites such as Facebook, Reddit, YouTube, and Amazon to become bastions of free speech. FOSTA-SESTA amended Section 230 to make it illegal for these companies to knowingly facilitate, assist, or support in any way those who violate federal and state anti-sex trafficking laws. It opens internet companies up to litigation if they are aware of and do not act against sex trafficking crimes committed by their users on their platform.
FOSTA-SESTA was supposed to be a turning point in the fight against sex trafficking. However, according to the GAO’s report, it has not been used much in either criminal or civil suits. For its analysis, the GAO reviewed relevant federal criminal cases from 2014 to 2020, as well as some of the platforms that operate in the online commercial sex market. They also interviewed officials from the Department of Justice (DOJ) and third-party experts.
Over the period, the DOJ brought 11 criminal cases against the owners of websites in the sex market but, as of March 2021, had applied FOSTA-SESTA in only one case (against owner of cityxguide.com), in which restitution was not sought and which is still pending in court. As of March 2021, only one individual had used FOSTA-SESTA in civil litigation, but the court eventually granted the defendants’ motion to dismiss and did not award the claimant any damages.
When asked why prosecutors have not used FOSTA-SESTA more, DOJ officials said that the law is still new and untested, and they are more likely to win cases against such companies through other criminal statutes, like those governing racketeering, money laundering, etc. In fact, DOJ officials seized Backpage.com, the site that prompted the introduction of FOSTA-SESTA in the first place, before the law was even enacted. The same appears to be true for why so few civil attorneys have cited the law, given that other statutes are more likely to yield victory and because civil cases are easier to win if there has already been a successful criminal prosecution under that law.
FOSTA-SESTA also cannot be applied retroactively to offenses committed before 2018. Further, it is hard to gather evidence that conclusively proves that the company knew about the crimes conducted on its site. In addition, sex trafficking is often an international crime, meaning that efforts to tackle it need to be broader as well.
In fact, according to the officials and experts interviewed by the GAO, changes that came in the aftermath of the removal of Backpage.com has made tracking sex trafficking crimes a little more difficult, though it is not easy to distinguish between the effects caused by Backpage.com’s downfall and by the implementation of FOSTA-SESTA.
FBI officials told the GAO that the removal of Backpage.com complicated efforts to identify and locate victims and perpetrators of sex trafficking, given that they were familiar with the site and that the owners used to be quite responsive to information requests. Following its removal, the online market for sex fragmented, with some moving to sites hosted abroad, while users moved to legitimate social media platforms like Instagram and Snapchat.
Overseas companies are difficult to work with as they are less likely than U.S.-based ones to supply information to law enforcement when asked. They are also more likely to obscure their records and financial transactions. On the other hand, the social media sites preferred by users nowadays allow criminals a degree of “pseudo anonymity,” through the creation of false identities. They also benefit from features like solid encryption, and mechanisms that delete content after the recipient has viewed it. It is hard to narrow in on sex trafficking in particular amidst the millions of other legitimate users populating the platform, officials said.
At the time FOSTA-SESTA was introduced, it was lauded by advocates as an effective deterrent for child traffickers, who often hid activities exploiting children among the prostitution ads sites like Craigslist and Backpage.com allowed. The National Center for Missing and Exploited Children (NCMEC) supported the bill when it was introduced and are still strong proponents of it, saying that it has worked well in confronting potential child and sex traffickers.
Though they had initially opposed the law, eventually companies such as Facebook, IBM, Oracle, and HP came around to supporting it. Google, on the other hand, strongly opposed it, saying that it would severely limit Section 230 of the CDA, which fueled the meteoric growth of the internet.
The Internet Association, a trade group representing “leading global internet companies on matters of public policy,” opposed the law in 2017, saying it was “overly broad” and would actually be counterproductive in mitigating sex trafficking, both on an official and a private-sector level. They also said it would have serious implications for free speech.
Others in the disparate coalition of the law’s opponents include sex trafficking survivors and victims, and proponents of legalized sex work. The latter group, in particular, say that research has shown that the internet actually makes sex work safer by enabling greater precautions, autonomy, and background screenings of clients.
The consensus of opponents seems to be that FOSTA-SESTA criminalizes and further puts at risk marginalized communities such as sex workers, by not distinguishing between consensual and non-consensual sex work, while also failing to live up to its promise of making it easier to prosecute trafficking crimes.
A lawsuit has been filed against the DOJ challenging FOSTA by a group that includes three nonprofits — the Woodhull Freedom Foundation, which champions the right to sexual freedom; the Human Rights Watch; and the Internet Archive.
At the same time, pro-sex work activists who opposed FOSTA-SESTA have recently been making inroads with lawmakers on Capitol Hill, including by securing funding for their lobbying efforts, and by meeting with top officials in Congress.