By APRIL GLASER
APRIL 27, 20184:10 PM
Photo illustration by Slate. Photos by passigatti/iStock; repinanatoly/iStock; iunewind/iStock.
When Olivia got a text from a co-worker a couple weeks ago that Backpage.com had been seized by the FBI and shut down, she panicked. Olivia is a sex worker specializing in body rubs and domination who is based in New York City, and for years she’s relied on Backpage, a website for posting online personals, to find and vet new clients without having to go through a pimp or work on the streets. “I just told my roommate that I’ll maybe have to move out,” she told me in an interview. “I relied on Backpage because it is really well-known with clients. I tried using other sites without much luck; they were not as lucrative.” She would buy ads on Backpage for about $7 apiece between 3 and 10 times a day when she was working, she told me. She was one of countless sex workers whose presence on Backpage, which investigators say grew from making $11.7 million in 2009 to $135 million in 2014, amounted to a hugely profitable business.
The shuttering of Backpage came after a long Senate investigation into the site’s founders, Michael Lacey and John Larkin (who also previously ran Village Voice Media, a chain of alt-weeklies that included the Village Voice) for facilitating prostitution and sex trafficking—and after the Backpage CEO Carl Ferrer pleaded guilty to charges of money laundering and facilitating prostitution. In their investigation, authorities pointed to internal emails that allegedly show how the site’s administrators edited posts to hide illegal activity by using software that scrubbed words that signaled illegal sex work with minors, like “amber alert” and “Lolita,” from ads rather than passing the information on to law enforcement. In other words, they allegedly knew their platform was being used for abhorrent ends and helped those uses to continue.
But what Olivia used Backpage for and what sex traffickers used Backpage for aren’t the same thing: Unlike sex trafficking, consensual adult sex work that isn’t prostitution is not necessarily illegal. But because the executives of Backpage appear to have been breaking the law by hosting ads they allegedly knew were helping people engage in illegal acts, the entire site was shut down.
It isn’t the first time a website that hosted sex-industry ads has been seized by law enforcement. MyRedBook.com, a site used by sex workers, was shut down in 2014 for facilitating prostitution, too. Many of the people who used MyRedBook switched to Backpage; the question now is where sex workers like Olivia will go next. “Nothing’s going away,” said a woman who goes by Josie; she runs a business in New York that rents space to sex workers, and gives sensual massages herself. (Josie isn’t her real name, and I’ve used pseudonyms for the sex workers I spoke to for this article to protect their identities.) Josie has been in the sex-work business for eight years. “It will just take time for the next thing to come along where people can find girls.” While Josie is certainly right that sex work—and the existence of websites that facilitate it—won’t ever go away, it will be a lot harder now for the next site, whatever it may be, to get going.
That’s because just days after Backpage was seized, President Trump signed into law a combination of two bills, the Stop Enabling Online Sex Trafficking Act (SESTA) and Fight Online Sex Trafficking Act (FOSTA), which makes websites that knowingly allow sex trafficking to happen on their site liable for hosting the illegal activity and open to civil lawsuits—which, in turn, is supposed to make it much easier for prosecutors to go after the proprietors of websites like Backpage. The new law chips away at the Communications Decency Act, which has ensured that websites generally aren’t liable for what their users post. And the impact of that has been immediate and chilling. Days after the Senate version of the bill passed but before Trump signed the bill into law, Craigslist shut down its personals section, where people would post ads looking for love or sex—ads that could easily include posts from pimps engaged in sex trafficking without the company having any idea what’s going on.
“Any tool or service can be misused,” reads the Craigslist landing page that shows up when you attempt to navigate to a personals board. “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!”
The Communications Decency Act is widely considered to be one of the most important lawsgoverning the web. Without it, there’d likely be no YouTube or Reddit or Myspace, and the early investors who poured millions into startups that laid the foundation for the internet we use today probably wouldn’t have done so, since so many online platforms would be vulnerable to getting sued out of existence for any awful thing one of the millions of people who used their services posted, like defaming a celebrity or hosting hate speech or something even worse. Simultaneous conversation and moderation isn’t possible—there’s always going to be a lag. Policing everything posted on a global message board is untenable, which is why immunity from what users do has been so important for companies that run communications services.
And it’s also why the Internet Association, which represents companies like Facebook and Google, didn’t support the new anti–sex trafficking act until it included language that websites will only be liable for content that facilitates sex trafficking if they do so knowingly. Still, website owners still feel the new law leaves some ambiguity—and their anxiety has been amplified by the drama surrounding the shuttering of Backpage.com. Now sex workers are scrambling, unsure how they’ll be able to stay in business, pay rent, or take care of their kids. Worst of all, they’re worried they’ll now be unable to use the web to find clients—and as a result they may instead have to find work on the streets.
When it comes to sex work, those who are affected by these laws often can’t advocate for their own needs to begin with.
“People don’t know how they’re going to eat next week,” said Hunter Leight, who has worked as an advocate for prostitutes and sex workers for more than a decade in San Francisco. Leight has worked on previous campaigns to decriminalize prostitution and has worked for years to help sex workers find the resources they need to stay safe.. “It’s like people saying I just showed up at work and the building was burned down and everything was gone.” Now, without a safe place for sex workers to find clients online, two women I spoke to told me that they are seeing clients they don’t like and whom they would like to not see anymore. “It creates a buyers’ market, rather than a sellers’ market where clients get to set their prices,” Leight said. More importantly, that shift in dynamic puts sex workers who don’t have experience doing street-based work, or people who were able to escape pimps or get off the streets, in a position where they’re considering going back—and that means more women could be sexually assaulted, raped, or otherwise harmed.
It is true that Backpage and other sites like it have been used by pimps and others engaged in forced or coerced sexual activities. And the protection these sites were granted under the Communications Decency Act did apparently make it harder for prosecutors to go after websites that were hosting ads for sex trafficking and sex with minors. “In case after case, we successfully prosecute traffickers, but we cannot pursue the websites that profited from the ads placed by these vile operations,” said Manhattan District Attorney Cyrus Vance Jr. in March, urging the Senate to pass the anti–online sex trafficking act. “FOSTA-SESTA would finally enable action against what are essentially online, open-air bazaars.”
Much of the discussion around the shuttering of Backpage has been intertwined with discussions around the new amendment to the Communications Decency Act, largely because the freedom from liability offered by the CDA for years hamstrung prosecutors who tried to go after the website, and the Senate’s investigation into Backpage helped inspire the new sex-trafficking bills. The CDA undoubtedly gave websites cover to look the other way while victims of sex trafficking were marketed on their sites, which has placed these victims at the center of a debate about free speech online.
That it could strand people engaged in consensual sex work without an online hub isn’t the only problem with FOSTA-SESTA. Another is that it won’t necessarily prevent sex traffickers from using websites to peddle their victims. That’s because the new law only allows individuals to seek civil remedies if the website is knowingly facilitating nonconsensual sex work—but in criminal law, proving such awareness is a pretty high bar. “At the criminal level, knowing something has to be proven beyond a reasonable doubt, and that provides a lot of protection,” says Mary Anne Franks, a University of Miami law professor specializing in tech policy, criminal, and First Amendment law. Franks, who is the policy director at the Cyber Civil Rights Initiative, makes the point that the requirement to know something actually incentivizes companies that are afraid of being held liable for sex trafficking happening on their sites to not look for illegal activity at all. Which paradoxically, amplifies what was problematic with the Communications Decency Act to begin with: When companies don’t have any liability for what their users do on their platforms, it’s easy to just not pay attention. It’s one reason why hate speech flourished on Twitter for so long, why YouTube has allowed abusive videos of children to be monetized for years, and why neo-Nazi groups have long found a place to gather on Facebook. These companies had no legal incentive to keep watch.
In other words, the Communications Decency Act might be in dire need of a broad update that would incentivize platforms to pay more attention to what users do on their sites and take more responsibility for the host of problems (read: fake news, Russian interference, neo-Nazis, hate speech, revenge porn, and harassment) that large internet companies have publicly grappled with over the past year and a half. But this new law doesn’t do that. Instead, it limits what could be a conversation about making the internet a safer place into a discussion about sex trafficking—and might not even do much to help.
Victims of sex trafficking deserve to seek redress from those who profited off their abuse, which often takes the horrific shape of a mix of rape and slavery and other forms of physical violence, but FOSTA–SESTA might not be the silver bullet its proponents hoped. What it will probably do, though, is push sex workers further underground, as well as the websites where pimps posted ads (that could be used by law enforcement to find traffickers) even deeper into the shadows. And it probably won’t make website owners any more likely to watch for and report illegal activity on their sites, either.
When it comes to sex work, those who are affected by these laws often can’t advocate for their own needs to begin with. “The only way progress gets to be made is that we get to go out into the streets and speak our mind and protest, but we can’t go out into the streets and protest because the nature of our work is illegal,” Olivia told me. Eventually, Olivia said she’d like to go into sex education and fight for the decriminalization of consensual sex work, which she hopes would make her chosen profession safer—and make it easier for people in the industry to report when they notice someone might be working against their will. Now, she and the four other sex workers I spoke with for this story all say they’re afraid.
“Some of my girls have kids, and I mean, it’s horrifying,” said Amy, another woman who runs the business in New York City that rents rooms to professional sex workers. “This is punishing consenting adults that have been supporting themselves through sex work. The general public thinks that sex workers are victims that we’re forced into it or that we’re drug addicts,” she continued. “And sometimes that’s true, but even if that is true, I still have a right. Even if I am on drugs, and I’m struggling, I have a right to do what I want with my body, how I choose to make money for services. I can’t pay taxes without lying about it. In this country, I think it’s very sad that certain occupations don’t have rights.”
And if sex work wasn’t criminalized in the first place, then a bill intended to help victims would be less likely to unintentionally victimize people who affirmatively choose the profession. The people who support the anti–sex trafficking bill in the hope that it will help survivors, and victims of sex trafficking, find justice need to be cognizant of the lives of the people who will be hurt by this legislation, too.