Letters in Opposition

Department of Justice

The Department believes that any revision to 18 U.S.C. 1591 to define “participation in a venture” is unnecessary. Section 1591 already sets an appropriately high burden of proof, particularly in cases involving advertising. Under current law, prosecutors must prove that the defendant knowingly benefited from participation in a sex trafficking venture, knew that the advertisement related to commercial sex, and knew that the advertisement involved a minor or the use of force, fraud, or coercion. While well-intentioned, this new language would impact prosecutions by effectively creating additional elements that prosecutors must prove at trial.

American Civil Liberties Union

Even with the improvements in both bills, ACLU continued to oppose both measures because the risks to the vibrancy of the Internet as a driver of political, artistic, and commercial communication is real and significant. Moreover, there is little to suggest that current law could not be used to find and punish the bad actors who are truly facilitating online sex traffickers. In fact there is at least one court decision pending now that could prove that point in a matter of weeks. There are a host of state laws outlawing such behaviors and current liability protections are intended to protect only those who are simply providing a channel for others to use, not those who are determining what is posted and who have a malicious intent to do harm to others.

National Association of Criminal Defense Lawyers, Families Against Mandatory Minimums, Federal Public and Community Defenders

The undersigned organizations are deeply concerned that this provision undermines meaningful criminal intent requirements in existing law, and could impose criminal responsibility on persons who are not deserving of jail time. All this bill requires is that a person knowingly participated in a venture, such as knowingly providing internet services, without any additional criminal intent. This would punish those who unwittingly allowed others to commit crimes by providing services that were in turn exploited by criminals. Importantly, it would even punish those who diligently tried, but failed, to prevent illicit use. Not only does this offend fundamental notions of fairness
and justice by punishing those who never meant to do anything wrong, it would do nothing to deter the underlying harmful conduct of egregious sex crimes.

Freedom Network USA, The largest domestic network of anti-trafficking service providers

FOSTA expands the criminalization of consensual commercial sex workers under the guise of addressing sex trafficking. This squanders limited federal resources and puts sex workers at risk of prosecution for the very strategies that keep them safe. Consensual commercial sex workers use harm reduction tools such as online forums to screen clients, avoid high risk activities, share resources, and protect each other. Further criminalizing consensual commercial sex work, where there is no force, fraud or coercion, is no way to protect victims.
A Statement from Love & Protect and The Chicago Taskforce on Violence Against Girls & Young Women

FOSTA recently passed the House of Representatives. SESTA, a related bipartisan bill, has been introduced in the Senate. It was introduced by Republican Senator Rob Portman, and has 66 cosponsors, including Illinois Senators Richard Durbin and Tammy Duckworth. While these bills purport to protect trafficking victims, in practice, they will subject sex workers to further surveillance and criminalization.

As Chicago-based organizers working to end the criminalization of those that engage in survival, we urge you to take action by calling Durbin and Duckworth. Demand that they vote NO on SESTA!

National Center for Transgender Equality, National Center for Lesbian Rights, National Latina Institute for Reproductive Health, and many others

Meaningful anti-trafficking work should not make those in the sex trade more susceptible to violence and exploitation. After the closure of RedBook and Rentboy.com, sex workers were instantly thrown from the online spaces and communities which provided the ability to screen clients, find out safety and health information and form community. The ability to access online platforms to advertise means that sex workers are able to screen clients for safety, negotiate boundaries such as condom use, and work in physically safer spaces. A 2017 study from West Virginia University and Baylor University found a 17% drop in female homicide rates correlated to Craigslist opening its Erotic section – because it made sex work safer.1 Taking away online platforms moves sex workers into more vulnerable and violent conditions, including street-based work where rates of physical and sexual violence and exploitation are significantly higher.

SWOP Sacramento’s Testimony Against SESTA

I was a victim of similar policy choices to SESTA, when law enforcement increased its targeting of print advertisements for sexual services. As publications stopped running adult ads, we were forced to work on street corners. Those who were trafficked were thus no longer in plain view and were pushed deeper into the shadows, making us more marginalized. Once on the streets, workers are forced into making split-second decisions about the safety of every interaction. In my organization’s 2015 publication Needs Analysis of Sex Workers in the Sacramento Valley—which has been cited by sex trafficking researchers and law enforcement agencies across the country—18% of the workers interviewed had migrated to the streets after crackdowns on Internet advertising and 59% reported being raped at least once.

227 Academics Against SESTA

We write not in the spirit of supplanting the voices of sex workers, but in the spirit of amplifying them. Too often, popular discourses around sex work have been accepted as the _nal word on workers’ lived experiences, resulting in dangerous myths and simpli_cations about all erotic labor. Our duty, both as academics and as activists, is to reveal social realities in all their complexity, using our training in methodological rigor and accuracy, and to speak to and open space for the truths of sex workers’ lives and labor as best we can. As academics, we also understand and value deeply, free speech and open access to information. This bill would directly censor and criminalize the speech of anyone engaging with the websites and communities the bill’s sponsors have in mind to target.

Small tech lobbying firms (organized by R Street)

*This letter supports FOSTA, which will vastly increase the policing and criminalization of sex worker communities. It was developed to support exclusively prosecutors, not those impacted by its passage.
SESTA’s sponsors seem implicitly to recognize the Moderator’s Dilemma, because the bill explicitly preserves the immunity in Section 230(c)(2)(A). Unfortunately, they misunderstand how that immunity works: it protects blocking or filtering but not the monitoring of user content necessary for filtering, and it is in the course of monitoring user content that websites risk gaining “knowledge” of illegal activity. Section 230 has no explicit reference to monitoring, but its current immunity protects the full range of what websites do— thus implicitly protecting web sites from liability for knowledge gained in monitoring content as well as from claims that they should have done even more monitoring. Ending the heart of that immunity (§ 230(c)(1)) necessarily means ending these protections for monitoring. That, in turn , will cause sites to do less monitoring, content moderation, and cooperation with law enforcement.

The Desiree Alliance and the undersigned individuals and organizations believe losing the ability to freely engage in constitutional freedoms is negligent on behalf of legal systems that are designed to uphold First Amendment decisions of the courts.  As representatives of sex workers’ rights and our allies, we reject the continued legal attacks on sex workers in erroneous retaliations in the pretext of suppressing human trafficking.