By: Derek J. Demeri

Last month, the United States Attorney for the North District of Texas announced, in conjunction with the Department of Homeland Security, the website CityXGuide.com had been seized and its owner charged with 28 counts of violating federal criminal law. The charges all relate to the promotion of prostitution and allegations of reckless disregard of sex trafficking. This is the first time that someone has been charged under Congress’s recently passed law, Allow States & Victims to Fight Online Sex Trafficking Act (“FOSTA”).

Section 230 of the Communications Act provides broad immunity to website owners for third-party content posted on their sites. It’s the same reason why a website is not held liable if a third-party posts plans to commit acts of terrorism on their platform (see Force v. Facebook, Inc., 934 F.3d 53 (2nd Cir. 2019)). However, when Congress passed FOSTA in 2018, it carved out an unprecedented exception that made website owners civilly and criminally liable for promoting prostitution or recklessly disregarding sex trafficking.

In most states, including New Jersey’s criminal statute § 2C:34-1(a)(4), “promoting prostitution” can be as simple as driving a sex worker to see a client, providing for another sex worker’s safety, or even referring a client to another sex worker. By definition, force or coercion are not elements of promoting prostitution. Despite the rather mundane actions that fall under the definition, FOSTA’s expansive reach includes promoting prostitution. While claiming to protect trafficking victims, the drafters of FOSTA rely on the dangerous assumption that all sex work is inherently exploitive.

Sex work is work, like any other labor. With the rise of the internet, online advertising created an avenue of independence for sex workers unprecedented in the pre-internet days. Because of the internet, sex workers have been able screen out potentially violent clients, develop business management skills, and better command their own personal autonomy. Despite these benefits, countless websites that sex workers relied upon shuttered their services to avoid liability under the new law.

When sex work is attacked without considering consent or personal autonomy, it decreases the ability for sex workers to negotiate safe working conditions with clients. It increases the likelihood of violence and makes sex workers more reliant on exploitive third-parties. Often times this looks like an increase in intimate partner violence because a “dating” relationship often exists between sex workers and these third-parties. Ironically, when the aim of FOSTA is to decrease exploitation and forced sexual labor, this all creates a perfect environment for sex trafficking to thrive.

LGBTQ+ people are more likely to become sex workers than their cisgender, straight counterparts, and LGBTQ+ sex workers are particularly vulnerable to the harms caused by FOSTA. Studies show that closing online spaces creates an increase in street-based sex work; while on the street, trans women, non-binary individuals, and queer youth are more likely to be criminalized and susceptible to violence than their cisgender, straight counterparts. Websites like CityXGuide, which range from free to low-cost advertising, are an opportunity for LGBTQ+ sex workers to participate in sex work in ways they wouldn’t otherwise have access too. Abruptly restricting these sites creates severe economic insecurity in the community and a need to rely upon dangerous practices. For all of these reasons, countless civil rights organizations have condemned FOSTA, including the National Lawyers Guild and the American Civil Liberties Union.

In the Department of Justice’s press release about the seizure of CityXGuide.com, it discusses how minors were sex trafficked through advertisements placed on the website. However, sex trafficking does not exist because of these websites. It would seem unthinkable to shut down and hold liable websites like Angie’s List, where people can find local home improvement service providers, simply because of a few, rogue postings that included someone who is being labor trafficked. Why should websites that include consensual adult sexual activity be considered any differently?

While the trafficking of children is always morally abhorrent, the Department of Justice and the drafters of FOSTA fail to comprehend how shutting down CityXGuide.com and other websites actually makes it more difficult to find trafficking victims. These misguided efforts not only increase the vulnerabilities for marginalized populations to rely on traffickers but fail to acknowledge the historical role that these websites played in finding and helping trafficking victims. Backpage.com, for example, played an active and vital role in tracking down missing persons and violent predators before the website was shut down for similar reasons as CityXGuide.

Unsurprisingly, there are very concerning first amendment issues related to FOSTA, especially when the result is to incentivize websites to monitor and prohibit sex workers (and those profiled as such) from accessing their content. The effect is to “chill” the constitutionally protected speech of internet users. For these reasons, several activists and human rights organizations have filed a lawsuit challenging the constitutionality of FOSTA. The Federal District Court of D.C. initially dismissed the lawsuit for lack of standing but the D.C. Circuit recently reversed and remanded the case for arguments on the merits.

For sex workers, the shutdown of CityXGuide is a painful reminder that the federal government is another obstacle in the fight for their lives. Some sex workers will find ways to survive in this new environment; others will regrettably, not. If we, as a society, are genuinely interested in supporting victims and survivors of sex trafficking, then we need to invest in housing, healthcare, and economic security for vulnerable communities instead of impulsive attempts to restrict internet and personal freedom. In reality, both sex workers and victims of sex trafficking will remain vulnerable to violence until FOSTA and all other laws that criminalize and stigmatize sex work are properly abolished and the civil and labor rights to which sex workers are entitled are enforced.

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