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Sex workers would be endangered by Senate bill, advocates say

Law professors say it would also violate the First Amendment.

Sen. Rob Portman (R-OH) leaves the weekly Senate Republican policy luncheon in the U.S. Capitol May 17, 2016 in Washington, DC. (CREDIT: Photo by Chip Somodevilla/Getty Images)
Sen. Rob Portman (R-OH) leaves the weekly Senate Republican policy luncheon in the U.S. Capitol May 17, 2016 in Washington, DC. (CREDIT: Photo by Chip Somodevilla/Getty Images)

The Senate voted 97-2 in favor of a bill on Tuesday that would allow online platforms to be held criminally and civilly liable for facilitating or supporting “sex trafficking of children or sex trafficking by force, fraud, or coercion.”

While on its face, the bill appears to protect sex trafficking victims, in practice any website where sex work is discussed or advertised could face legal consequences in criminal and civil courts. Advocacy groups for sex workers and sex workers say the bill would endanger sex workers and fail to protect trafficking victims.

The Stop Enabling Sex Trafficking Act (SESTA), introduced by Sen. Rob Portman (R-OH), would amend the Communications Act of 1934 to allow providers to be held liable. The bill also allows a state attorney general to bring a civil action in a U.S. district court on behalf of the state’s residents “if the attorney general believes an interest of the residents has been or is threatened or adversely affected by any person who knowingly participates in the sex trafficking of children or sex trafficking by force, fraud, or coercion.”

In February, the House version of the bill, Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA), passed. Eleven Democrats and 14 Republicans voted no, with 18 abstentions. The American Civil Liberties Union, The National Center for Transgender Equality, and Freedom Network USA, an alliance of advocates who say they support a human rights-based approach to human trafficking, all opposed the bill.

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Before the bill passed, Kate D’Adamo, a partner with Reframe Health and Justice, a consulting collective focused on economic justice and public health, told ThinkProgress that the bill would only make it harder for sex workers to protect themselves. She said online platforms help sex workers find and screen clients to reduce the likelihood of violence. When sex workers and clients are more concerned about law enforcement attention, they tend to work in less safe conditions.

“We know what best practices around addressing exploitation in labor are and it’s not making people more isolated and more vulnerable,” D’Adamo told ThinkProgress in February.

Alana Massey explained in Allure, “Though the bill is meant to target sites hosting sex work advertisements, it covers online forums where sex workers can tip each other off about dangerous clients, find emergency housing, get recommendations for service providers who are sex worker-friendly, and even enjoy an occasional meme. These are often on the same websites where advertisements are hosted.”

Laura LeMoon, who said she was initially forced into sex work, got out of trafficking and continued to do sex work for herself, wrote on Medium that she opposes SESTA.

“Another problem is that nobody is asking sex trafficking survivors directly about what we know from experience could help decrease trafficking,” Le Moon wrote. “You know why that is? Because the answer is decriminalization of sex work. And politicians aren’t interested in making the bodies of marginalized people more free, they want our freedom and agency restricted and government owned.”

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LeMoon added that the bill would further criminalize consensual sex adult work and remove the “harm reduction tool” that these websites provide.

Alex F. Levy, an adjunct law professor at the University Notre Dame, who teaches students about black markets, censorship, and liability for illegal commerce, wrote that FOSTA violates the First Amendment. Although illegal transactions are excluded from First Amendment protection, FOSTA criminalizes the facilitation or promotion of prostitution even in jurisdictions where prostitution is legal, Levy explained, and the words “‘promote or facilitate’ do not, on their own, suggest a transaction.”

SESTA and FOSTA have received support from celebrities, such as Amy Schumer and Seth Meyers. In a video supporting the bill, Schumer said, “Today you can go online and order a child for sex. It’s as easy as ordering a pizza.”

This kind of language — which conflates sex trafficking and sex work, erasing consensual sex work between adults and assuming that sex work is selling one’s body for unfettered access instead of selling specific services — is common along supporters of the bill. High-profile Democrats, such as Sens. Kamala Harris (D-CA) and Kirsten Gillibrand (D-NY), have also come out in support of the bill.

Members of Congress have often focused on the website Backpage, an online classified marketplace, when promoting these bills. When Kamala Harris was California Attorney General, she brought felony pimping charges against Backpage.com CEO Carl Ferrer. But in 2016, Judge Michael Bowman of the California’s Superior Court of Sacramento County dismissed those charges, and said that “Congress has spoken on this matter and it is for Congress, not this Court, to revisit.” Sen. Portman referred to this decision to argue why it was necessary to pass SESTA.

Then Harris charged Ferrer again, saying she had new evidence. Harris charged Ferrer and the website’s owners with 26 counts of money laundering as well as pimping and conspiracy to commit pimping. Santa Clara University School of Law professor Eric Goldman told the Mercury News that the money laundering charges should be a source of concern for all technology companies, however, since “virtually every online service gets money from illegal activity.”

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Sex workers have criticized senators on social media for supporting the bill. Maxine Holloway replied to a tweet from Harris on how “right-wing politicians play politics with women’s health” and said that’s exactly how sex workers feel about SESTA.

Before the vote, Sen. Ron Wyden (D-OR) said the bill is an “enormous chilling of free speech” and said that it is unusual that the Cato Institute, ACLU, and Human Rights Campaign have all been critical of the bill. Wyden added, “The bill before us today is not going to stop sex trafficking. It’s not going to prevent young people from being victims. First, as I mentioned earlier, the Department of Justice takes view that important provision of bill is unconstitutional … This is an astounding development. The legislation before the Senate is going to make it harder not easier to root out and prosecute sex traffickers.”

Wyden added, “Taking down the ads doesn’t mean pimps and predators will say, ‘We see what the Senate is doing and now we will follow the rules.'”

A sex worker and communications director who goes by Briq House told Splinter that the law could affect a large number of people, since, “If we continue to go down this path, who’s to say what will be considered illegal? What will be considered soliciting? Who’s to say your vacation bikini pic won’t eventually be considered soliciting sex?”

Next, the bill will go to conference and then it will head back to the House and Senate for final approval. Then it will go to President Donald Trump’s desk. The president’s daughter and White House advisor Ivanka Trump has expressed support for the bill.

This piece was updated with the final vote count.