New federal law could have unintended consequences for sex workers, LGBTQ community

A new federal law approved by Congress in March and signed by the president in mid April has prompted immediate concern by advocates for LGBTQ people, sex workers and other marginalized communities. Critics are saying FOSTA, or the Allow States and Victims to Fight Online Sex Trafficking Act, will create unsafe experiences for sex workers and could foretell a panicked crackdown on private relationships conducted online.

Proponents of the new law, which is already having a chilling effect on several large and small online personals and dating sites, say it is intended to curb human sex trafficking. They say online publishers have been complicit in the sale and trade of human trafficking victims, often underage, forced into involuntary sex work.

Critics claim the law is dangerous, saying it targets not only sex trafficking but also voluntary sex work, having the unintended consequence of pushing all sex work further underground. That will put both victims and voluntary sex workers in more danger.

The U.S. Department of Justice agreed with some critics, especially scared that an expanded underground economy would make it more difficult to identify and apprehend perpetrators of sex trafficking. They even said the law was unconstitutional, and said the law’s new requirements for prosecutors would make it more difficult to hold abusers accountable.

The new law is just the latest in several state and federal actions targeting online dating and sex work, including the 2015 shutdown of Rentboy, the subsequent arrest of several of its employees and, finally, a six month prison sentence for its CEO, Jeffrey Davids.

All in all, the complex details and controversy surrounding FOSTA (or SESTA, as it was known before its final passage) and the recent history of state and federal actions makes it hard to fully wrap your head around what’s at stake. Large companies like Craigslist have found the new law confusing and vague, too, erring on the side of caution and recently shutting down its personals section in order to avoid any potential liability. So, too, has Reddit, shutting down some of its popular sections where sex workers and others had previously sought clients or hook-ups.

The background

Debate over the online sale of sex isn’t new, and there’s been longstanding public and legal pressure to stop online publishers from offering personals or adult services listings.

More than a decade ago Craigslist, the number-one online classifieds site, came under fire for its adult services section. Critics then used many of the same arguments being used now to support the passage of FOSTA.

Craigslist at the time had implemented a number of safety mechanisms, including phone verification and a manual review of each ad placed on the site. The company even partnered with law enforcement, giving them access to search for victims online and enlisting users to voluntarily review ads and report possible victims to law enforcement and child exploitation agencies.

Still, under increasing scrutiny, Craigslist voluntarily shuttered its adult services section in September 2010.

What followed was a proliferation of erotic services ads on sites like Backpage and a number of other online dating sites and services, including gay sites like Adam4Adam.

Other websites also became popular resources for voluntary sex workers. Rentboy, shut down by federal authorities in 2015, had been one of the top online directories for male sex workers working primarily with other men. The owners of Rentboy, as well as men who used the site to find and filter clients, claimed the online service kept them safe.

The judge in Rentboy CEO Jeffrey Davids’ case agreed.

“The very thing that was illegal, it also did a lot of good,” New York Federal District Court Judge Margo K. Brodie said during Davids’ sentencing.

Davids was sentenced to six months in prison, less than half the time federal prosecutors had requested.

‘Back to the streets’

FOSTA now threatens to end all use of the internet by voluntary sex workers — and even non-commercial, private dating and other sexual encounters.

As a result of the law’s passage in recent weeks, Craigslist shuttered its personals section, mirroring the preemptive, risk-averse move it made when it shut down its erotic services section nearly a decade ago. A smaller, more niche site for furries has also announced it is shutting down, at least temporarily.

More shutdowns could come soon, and that spells uncertainty for sex workers.

Those performing consensual sex work saw Craigslist, Backpage, Rentboy and other services as a sort of firewall. From the comfort of their home — or anywhere else they felt secure — they could chat with potential clients via email or other means before actually meeting them in person. Doing so allowed them to filter out those who sent up warning flags as potentially abusive or violent. The ability to screen clients isn’t guaranteed in less safer areas — bars and nightclubs, for example, and certainly not on the street.

“I felt safe with it. I choose whether or not I want to do something,” a sex worker named Natalia told TheCut.com. “The way that I work is, ‘You come here and you get a massage,’ and if I think the client is going to be cooperative and he is going to have the means to pay — if I feel like I want to do something, I will do it. If not, I will just finish the regular massage. If I go work somewhere else, whether it is the street, whether it is for somebody else, I won’t have the freedom to do that and I won’t feel safe anymore.”

That the first major federal crackdown on online sex was directed toward primarily gay male workers and clients should raise alarm. At the time of the investigation’s conclusion, federal and New York state officials decried any suggestion they were motivated by anti-gay bias.

But it is true that LGBTQ people, and other marginalized groups, often overlapping — including people of color — find themselves disproportionately reflected in the numbers of people who engage in voluntary sex work. With the closure of more online personals sites, many of those people will be forced back onto the street.

“I am thinking about going back to the streets, but it is just so dangerous, and the police don’t understand getting a job isn’t easy for everyone,” a transgender sex worker named Trinity also told TheCut.com. “New Orleans has just installed a bunch of new crime cameras. They are criminalizing everything … They have always criminalized being transgender and walking the streets late at night.”

The use of online ads and personals acted as a way to reduce harm and allowed sex workers to keep themselves and their friends and family safe.

“The most disturbing aspect of the legislation is its very broad definition of ‘the promotion of prostitution,’ which could definitely be read to sweep in some of the harm-reduction tactics that sex workers rely on,” Ian S. Thompson, an American Civil Liberties Union legislative representative told TIME.

Sex trafficking is a serious issue, say advocates. But FOSTA was the wrong solution.

“This was a sloppy effort at addressing a very serious problem,” Thompson added to TIME. “It’s going to harm some of the very individuals that well-meaning members of Congress were actually trying to protect.”

Are dating apps next?

Other online dating services — including popular apps like Grindr, Tinder and others — haven’t weighed in yet. But the new standards in FOSTA could spell trouble for these services, too.

What has scared Craigslist and other sites so far is a drastic change in current federal law. Previously, online publishers were protected from liability for the content their users posted, since the content wasn’t actually created by the publishers themselves.

FOSTA changes those standards. Not only can online personals and dating sites and apps be held responsible for the actions of their users, the new law also creates more stringent legal liability for online publishers who take efforts to edit or moderate the content on their systems, even if doing so is meant to weed out inappropriate content.

That means efforts used by dating apps to screen out inappropriate words or photos could create more, not less, liability.

Ironically, advocates say, the only option online publishers will have in order to avoid this particular liability is simply to give up on any content moderation at all.

Some are saying FOSTA — however well intentioned — has the potential to create a panicked crackdown on the private, consensual relationships of adults.

“More people should care about sex workers’ rights,” wrote Guardian columnist Steven W. Thrasher. “But if you think none of this applies to you because you’re not queer or into kink or sex work, think again: the U.S. Congress wants to further regulate sex by way of the internet, and most people’s modern sex lives interact with the internet.”

Thrasher added, “Craigslist shut down its entire personal section because of the overreaching congressional desire to control sex work. And there’s no reason Congress couldn’t similarly intimidate Tinder or Grindr to remove you or shut down entirely as it has Craigslist – and then where would you be?”

It remains to be seen exactly how FOSTA will be enforced.

It could go easy, with the Department of Justice, already inclined to dislike the law, taking a light enforcement approach.

Or, it could lead to a sort of moral panic.

With such a new law, only time will tell the true story.