Rep. Noem’s press release reads, “Trump Signs Noem-Backed Anti-Trafficking Bill”. The bill that Rep. Noem is touting is called
FOSTA-SESTA (Fight Online Sex Trafficking Act and the Stop Enabling Sex Traffickers Act). While we can all get behind a title like that, the devil is in the details. I admire Rep. Noem’s devotion to the issue of human trafficking, and I’ve supported past legislation that she’s championed regarding the issue, but the more I read about this bill, the more I think Rep. Noem and others may have thrown the baby out with the bath-water.
Here’s a few issues that give me pause: (Note that I’m not an expert in the law, human trafficking, or prostitution. I’m just regurgitating information I’ve found elsewhere. Feel free to correct me if you spot mistakes.)
- This bill undermines Section 230 of Communications Decency Act which protects online platforms from liability for some types of speech by their users. In order to protect themselves from liability, internet platforms may have to pre-screen all user contributed content, or absent the resources to do so, disallow it all together.
- This bill doesn’t actually distinguish between sex trafficking and consensual and/or legal prostitution, and it makes no exceptions for places such as Nevada where prostitution is legal. For all of Rep. Noem’s talk of “Protection from Government Intrusion”, she didn’t hesitate to intrude on Nevada.
- With this bill, Rep. Noem has made clear that it isn’t just the traffickers that should be targeted, but also those internet companies that provide the tools and platforms to enable trafficking. But where does Rep. Noem draw the line with this thinking? Would she support a law that held gun makers liable for the actions of mass killers? I don’t see how she could support one, but not the other.
- It’s not clear that this bill was needed. Backpage.com, for example, was seized and it’s owners arrested before this bill was signed into law. Internet providers could already be held accountable for violations of federal criminal law.
- Internet law scholars contend that the law may violate Constitutional free speech.
- The US Justice department believes that the bill violates Constitution’s Ex Post Facto Clause.
- Freedom Network USA (the nation’s largest group of organizations working to reduce trafficking in their communities) testified that:
When websites are shut down, the sex trade is pushed underground and sex trafficking victims are forced into even more dangerous circumstances. Street-based sex workers report significantly higher levels of victimization, including physical and sexual violence. This means that trafficking victims face even more violence, are less likely to be identified, with less evidence of their victimization.
- A recent study concluded that the Craig’s list “erotic service” section actually reduced the homicide rate of women by 17% and reduced the incidents of rape in cities where it was available.
- Senator Ron Wyden of Oregon, one of the few members of Congress that actually understands how the Internet works, had this to say:
“the bill passed today by the House will make it harder to catch bad actors and protect victims by driving this vile crime to shadowy corners of society that are harder for law enforcement to reach.”
- With the passage of this bill, an Australian group (where sex work is legal) called Assembly Four created a new social media network especially for sex workers. In its first month, the new social network had over 50,000 members. The social network is decentralized and built on open-source software. To my knowledge, it’s beyond the reach of US law enforcement.
- Because US internet providers can no longer facilitate prostitution, email providers such as Google, Microsoft, and Yahoo don’t accept email from the new sex worker social network. As a result, all of the sex workers (and probably traffickers too) are getting email accounts at over-seas email providers such as protonmail. That makes it even more difficult for US law enforcement to identify and track traffickers.
- Offshore web hosting services have now sprung up especially for sex workers. They too are beyond the reach of US law enforcement.
So for all its good intentions, there’s evidence that FOSTA-SESTA may:
- Restrict free speech on the Internet
- Create a precedent where-by the “tool makers” and not the perpetrators are targeted by the law
- Put sex workers and trafficking victims in greater danger
- Push traffickers underground and to overseas providers out of the reach of US law enforcement.
Very few in Congress opposed this bill. It’s apparently bad politics to oppose a human trafficking bill. It’s a shame that there aren’t more Representatives with the courage to look beyond this bill’s title; to recognize its deficiencies; and to find more effective ways to combat human trafficking.