Unintended Consequencs of Sex Trafficking Laws

April 12, 2021 by Victoria Turner
Danielle Borrelli

The two federal laws governing sex trafficking online have disproportionately harmed more sex workers than saved victims of human trafficking, said Danielle Borrelli, operations coordinator at the California Cybersecurity Institute, today at a Lincoln Network event moderated by Alexiaa Jordan.  

Known and used collectively as SESTA-FOSTA, the Senate and House 2018 law combo has “normalized” speaking about sex work, but increased harm by exposing sex workers to a flurry of more misdemeanors, felonies and has actually put them at risk from harmful clients, Borrelli said. The law has made it harder for sex workers to vet their clientele, as forums and websites were being shut down due to the fear of being found liable. 

“It pushed them back into the more archaic on-the-streets situation…as a bill itself, it’s failed the people it’s trying to serve,” she said as she pointed out that this leads to more rapes, beatings and murder.

It was a sentiment that all three panelists agreed upon. 

They have also blurred the distinction between sex work – prostitution, adult entertainment – and sex trafficking, and this has led to a decrease of legal businesses and behaviors, said Emma  Llansó , director of the free expression project at the Center for Democracy and Technology. The laws have had “chilling effect” on sex workers by diminishing the online resources available to keep them safe.

The majority of cases brought against websites – like the infamous backpage.com that was taken down – were “struck down” under Section 230 of the Communications Decency Act, she explained, which shields platforms from being liable for third-party content published on their site. 

SESTA-FOSTA, she said, sought to change that, but the debate ignored that Section 230 already provides an exception to existing federal criminal law. She pointed out that this existing legal framework, not SESTA-FOSTA, was used to take backpage.com down. 

“SESTA-FOSTA was almost an answer to a problem that actually had a solution on the table,”  Llansó said. 

The new law also added a federal criminal liability exception to Section 230, said Alexandra Yelderman, visiting assistant professor of law at Notre Dame. If the host is operating the site with the intent to facilitate the criminal activity, she explained, then it is at fault. 

What a lot of these cases really come down to, explained Llanso, was advertisements that are published on the host site. It is almost impossible for these content hosts to go through every single advertisement to ensure they are legal and not promoting criminal behavior. Both Borrelli and Llanso noted that typical mitigation techniques employed by the host – like keyword searches and flagging videos – can only catch a certain amount before the culprits become savvy and change the terms they use themselves. 

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