From the get-go, sex worker activists knew nothing good would come from FOSTA, a 2018 law that formally makes online platform operators criminally liable for commercial sex activity and has had the effect of making sex workers lives’ harder and riskier.
A government watchdog has now found that law enforcement officials at the United States Department of Justice (DOJ) don’t even use or find useful the criminal charges provided by the law. Meanwhile, the prosecutors say it’s actually made their jobs harder.
On June 21, the Government Accountability Office (GAO) published a report on prosecutions pursuant to FOSTA (Allow States and Victims to Fight Online Sex Trafficking Act of 2017), as mandated by the law itself. In the law’s three years of existence, the DOJ has only brought a single criminal FOSTA case. It was in June 2020, when the DOJ indicted the operator of CityXGuide.com on charges of “promotion of prostitution and reckless disregard of sex trafficking,” as provided by Section 3 of of FOSTA and located in 18 US Code § 2421A.
While DOJ officials say FOSTA is “relatively new,” implying that it could be used more in the future, they also note that they simply already have other avenues to prosecute website operators, saying they’ve had “success” with racketeering and money laundering charges. DOJ’s career of prosecuting website operators for allegedly facilitating prostitution was kick-started in 2014 when it secured the conviction of MyRedBook.com’s operator on racketeering and money laundering charges. Since then, every one of 10 total cases—including the CityXGuide.com indictment—has involved one or both of those charges.
“There was no benefit and everyone said this would happen at the outset.”
In addition to the lack of FOSTA criminal cases brought, only one individual has sought civil damages as provided by the law, and in circumstances that were a far cry from lawmakers’ intentions for the bill. The plaintiff made claims under 29 other federal statutes and against a family, their lawyer and court officials—not the online platform operators FOSTA was designed to target. On March 22, 2021, a judge dismissed the case.
The apparent finding that FOSTA has so far offered little utility to law enforcement or victims is unsurprising for sex worker and anti-trafficking advocates who fought against the law. “There was no benefit and everyone said this would happen at the outset,” Kate D’Adamo, a member of the sex worker collective Hacking//Hustling and partner at Reframe Health and Justice, told Filter.
Despite the contents of the report, the GAO official behind it is not ready to affirm that FOSTA is of little use to law enforcement. “Such a conclusion may be premature given that the law has been around just 3 years,” Gretta Goodwin, director of justice and law enforcement Issues at GAO, told Filter. “It is correct that FOSTA didn’t create a wave of new federal prosecutions against online platforms.” Goodwin shared that GAO is not aware of any forthcoming cases by the DOJ that involve charges pursuant to FOSTA.
Goodwin notes that there are, in the eyes of law enforcement, potential benefits of FOSTA. Bringing harsher punishments is one reason DOJ officials say prosecutors could opt for charges pursuant to 18 US Code § 2421A. “Promotion of prostitution and reckless disregard of sex trafficking” carries a maximum penalty of 25 years, while money laundering and racketeering charges offer between five and 20 years, depending on the statute violated. Another reason for FOSTA’s use, GAO found, would be that it could increase the chances of securing a conviction.
GAO’s finding that the online sex market has radically transformed is old news.
Beyond not being an utilized asset for law enforcement, FOSTA has even proven to make investigations and prosecutions more difficult. FOSTA’s enactment on April 11, 2018, and the seizure of Backpage.com by federal authorities less than a week prior, “have led to the relocation of platforms overseas” and the “fragmentation of the market,” according to GAO—in effect creating a more decentralized and inconsistent sex market.
GAO’s finding that the online sex market has radically transformed is old news. Before FOSTA even became law, advocates were saying the market would simply rearrange itself in response. “When websites are shut down,” the anti-trafficking organization Freedom Network USA testified before Congress in 2017, “the sex trade is pushed underground.”
D’Adamo attested to advocates’ foresight. “Before this bill passed, we knew this would cause a lot of disruption throughout industry, and for the most marginalized and most vulnerable to exploitation,” they said. “This really confirmed everything we were saying.”
As a result of the anticipated disruptions, law enforcement faces more challenges in policing online sex markets. Gathering “tips and evidence” to support investigations and prosecutions has become more difficult as a result of platforms relocating overseas and using more complex payment systems, DOJ officials told GAO. They also attributed the trouble developing their cases to sex market participants increasingly using a wider variety of sites to conduct transactions, including “social media, dating, hookup, and messaging/communication platforms.”
Ironically, the aftermath of FOSTA has, according to the report, seen increased use of certain online commercial sex websites, namely “hobby board and sugar dating platforms.”
Building the Case to Repeal FOSTA
So if federal prosecutions have gone relatively unaltered by FOSTA, what has it impacted?
The lives and livelihoods of sex workers, say activists and researchers.
A growing body of evidence shows that the new landscape produced by FOSTA has destabilized workers’ ability to practice self-defense, like by screening clients, and negotiating fair terms of work.
The consequences are alarming. According to a “participatory action-based, sex worker-led” research report published in 2020 by Hacking//Hustling, a majority of surveyed online-based sex workers (72.45 percent) reported “increased economic instability”, and one-third (33.8 percent) said they’ve experienced a rise in violence from clients. In a qualatative study of male sex workers in California published in 2019, researcher David Eichert found that some had trouble with finding platforms on which to advertise services, with clients increasingly disregarding workers’ boundaries, and with declining mental health.
The patchwork of small-scale studies has provided the public with evidence beyond anecdotes. The GAO report represents an effort by the federal government to evaluate the implications of FOSTA, albeit as it concerns law enforcement rather than the vulnerabilized population of sex workers actually being harmed by the legislation.
But others in Washington have demonstrated interest in building a rigorous picture of FOSTA’s effects. In 2019, Representative Ro Khanna and Senator Elizabeth Warren introduced the SAFE SEX Workers Study Act into their respective chambers. It would task the Department of Health and Human Services with “utiliz[ing] community-based nonprofits to conduct surveys and interviews of sex workers to collect information about (1) experiences of violence from clients; (2) interactions with law enforcement; (3) experiences with exploitation; and (4) the impact on housing stability and mental health, among other effects,” according to the bill’s summary.
The legislatively-proposed research, along with GAO’s report (likely to a lesser extent), could provide the evidence to support arguments for repealing FOSTA and ensuring that similar legislation does not become law in the future.
“Informed government policies begin,” reads the SAFE SEX Workers Study Act, “with seeking out relevant information to better guide our actions moving forward.”