Section 230 of the U.S. Communications Decency Act: How so-called anti-trafficking legislation justifies the incarceration of sex workers
Introduction
The purpose of this research is to empirically analyze the way sex work has been framed in anti-trafficking policy in the United States over time with a specific interest in identifying how this type of legislation characterizes people engaged in the sex trade. Since the passage of the 2018 anti-trafficking legislative package containing the Stop Enabling Sex Trafficking Act (SESTA) and Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA), which were signed into law by President Trump, sex workers, and their allies have mobilized to counter this legislation, asserting that the interventions make living conditions worse for people in the sex trade (Hacking// Hustling. (n.d. p. 1).
Since the passage of SESTA/ FOSTA, a bill called Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2020 (EARN IT) was introduced by Senator Lindsey Graham (R-SC) and proposes to grant government officials like the Attorney General the authority to sanction internet service providers to break encrypted client information at the government’s request. Additionally, EARN IT purports to develop a yet-to-be-determined set of best practices that all Internet Service Providers (ISP) must abide by. Sponsors of the bill say these best practices will preserve certain protections from civil and criminal liability for user-generated content under Section 230 of the Communications Decency Act. Opponents, however, say the bill violates the 1st amendment protection of editorial activity from government regulation and that EARN IT’s selective removal of Section 230 immunity, therefore, creates an unconstitutional condition (Cope, Mackey, & Crocker, 2020, p.1).
Historically, Section 230 of the Communications Decency Act of 1996 (CDA) has protected website operators from being held liable for the content their users share on their websites via safe harbor protections. These protections have provided a basis for the preservation of free speech over the Internet for over two decades. However, Section 4 of FOSTA, titled “Ensuring ability to enforce federal and state criminal and civil law relating to sex trafficking,” includes two subsections that establish exemptions on website operators from the safe harbor protections in Section 230 of the CDA, while expanding prosecution power from the federal government to state attorneys’ general.
The introduction of SESTA/ FOSTA represents a morphing of the way the United States conceptualizes online sex work as trafficking in domestic policy because the exchanges of interest often happen across state lines via the Internet (rather than by physically traveling across state lines which is what older anti-trafficking legislation addressed). Sex workers and their allies say these laws make it harder to detect when sex trafficking does occur by pushing sex work offline and further into the shadows. To better understand how these laws have come to be and why it’s important to revisit the legacy of anti-trafficking legislation in the U.S.
Background: Literature Review
Origins of U.S. Trafficking Policy: Colonialism, Racism, and Labor Exploitation
During the 19th century a widely held belief, known as Manifest Destiny, said that colonizers of the U.S. were destined, by God, to expand and settle into the rest of North America. In Sam Kushner’s (1975) recounting of the history of farmworkers’ struggle during the 19th and 20th centuries in what is presently recognized as the state of California by the United States, he describes the way the processes of colonization of the Indigenous/ first nation’s people further informed processes that resulted in the exploitation of foreign laborers. Following the genocide of the Indigenous people of Turtle Island and the subsequent land grabs of the mid-late 1800s, established owners in agribusiness, mining, and construction (of the transcontinental railroad) enacted a pattern of exploiting laborers from China, Japan, the Philippines, and Mexico for the sake of profit. In times of economic downturn, the private interests of these growers influenced the tightening of U.S. border security which resulted in continued violence against foreign laborers, including the land grabs from the Japanese people in the U.S. and their internment on U.S. soil during World War II (pp. 3–20).
The U.S.’s first anti-trafficking bill was passed in 1875 in direct response to the immigration of Chinese people to the U.S. This later resulted in the Chinese Exclusion Act of 1882 which prohibited all working people from China in the U.S. The U.S. Immigration Bureau was formed to enforce these laws, to protect the country from the “morally deficient,” often assuming foreign women were prostitutes. In the years that followed, a growing fear of “white slavery” among white Americans resulted in the White Slave Traffic Act, also known as the Mann Act of 1910. This law made the transport of any woman or girl for prostitution a felony crime and established a database of all “known prostitutes” for better policing.
The Belli Research Institute (2018) recount this history through a whore’s dialogue, between an older mistress and a younger mistress, where the older mistress explains the inherent presence of white supremacy in the development and application of anti-trafficking legislation in the U.S.:
“In its attempt to suppress white slave traffic, it first had to find it — and here we see the prostitute come back into focus. If white women were prostitutes it must be because they were trafficked into it and therefore need rescuing. This is a far cry from the view of prostitutes as dangerous, infected foreigners polluting the pristine waters. The reason for these now opposing views of the prostitute as either innocent white victim or as dangerous woman of color was of course racism” (p. 1).
Anti-Trafficking and Carceral Feminism
Sociologist Elizabeth Bernstein, in her research with feminists and evangelicals in the anti-trafficking movement, says that the framing of contemporary anti-trafficking legislation is the result of two intersecting trends:
“a rightward shift on the part of many mainstream feminists and other secular liberals away from a redistributive model of justice and toward a politics of incarceration, coincident with a leftward sweep on the part of many younger evangelicals away from the isolationist issues of abortion and gay marriage and toward a globally oriented social justice theology,” (Berstein, 2010, p. 47).
Bernstein connects a resurgence of feminist-conservatism following the expansion of the “charitable choice” initiative during George W. Bush’s administration to the growth of evangelical groups receiving federal money for domestic and international anti-trafficking work (2010, p. 51). Additionally, Bernstein observed that the attention given to domestic forms of sex trafficking resulted in concern with policing in the U.S.’s inner cities. She describes this configuration as the “critical circuitry for the carceral feminist agenda,” (Bernstein, 2010, p. 57). In reflecting on what may come of the alliance between evangelicals and carceral feminists in the future, Bernstein says:
“In the neoliberal context of a devolving state apparatus, practices of governance increasingly rely on a coalition of state and non-state actors rather than on the state itself. The symbolic and material allegiances that these groups have with the state (via both carceral politics and funding) ensures that only those humanitarian issues that advance a larger set of geopolitical interests (be it border control, waging war, or policing the domestic underclass) are likely to gain traction in the broader public sphere,” (Bernstein, 2010, p. 67).
Most recently, SESTA/ FOSTA has pushed those working online to the street-based sexual economy and has stifled sex workers’ ability to screen clients as a safety measure. By pushing the burden of guilt onto website operators, part of what SESTA/ FOSTA accomplishes, the U.S. government has created another member in the coalition of entities responsible for policing the sexual autonomy of the domestic underclass.
Exploitation Creep
Just prior to the debates that would later result in the adoption of the U.N. Trafficking Protocol in the 1990s, the International Labor Organization (ILO) released a controversial report, titled “The Sex Sector,” which recommended that governments recognize the sex sector as an economic sector and develop policies that protect sex workers from abuse. The report received significant criticism and helped shape the U.N. debates which would eventually result in a vague and inconsistently interpreted definition for trafficking (Chuang, 2014, p. 28).
According to Chuang, “exploitation creep” describes the way U.S. government policy has collapsed the meaning of the word trafficking with both forced labor and slavery. Through this lens, all forced labor is viewed as trafficking and all trafficking as slavery. According to Chuang, exploitation creep is best understood “as an exercise of U.S. hegemony to maintain the dominance of a criminal justice approach to trafficking at a time when we are beginning to see those makings of a shift towards an alternative: a labor paradigm” (Chuang, 2014, p. 4).
Statement of the Problem: Increased Criminalization of Sex Workers in the U.S.
FOSTA takes existing human trafficking legislation and merges it with new legislation criminalizing sex work in general as long as prostitution is also illegal in the state where the act(s) occurred. U.S.C. Title 18, 2421A(a), made law by Section 3 of FOSTA, clarifies that “interactive computer services” are considered a means through which interstate and foreign commerce can occur. Additionally, this new subsection criminalizes the “intent to promote or facilitate the prostitution of another person” (115th Congress, 2018, March 21).
Legislation implemented under the Mann Act, including Section 2421, criminalizes the transportation of individuals for prostitution or other unlawful sexual activity in interstate or transnational contexts (Doyle, 2015, pp. 16–17). The difference in phrasing between U.S.C Title 18, Section 2421, and its new subsection 2421A which “clarifies” (expands?) the law’s reach to include web-based sexual commerce and expanding the avenues available to the government to assign guilt for prostitution offenses.
Through FOSTA, the policy problem has been framed in such a way that commercial sex and other unlawful sexual activity have been associated with abuse and human trafficking. This framing has translated into law that conflates both activities with one another when these issues should be treated separately. Deliberate engagement with the issue of the sex trafficking of children or coerced and abused adults raises important questions about the solutions provided through FOSTA which now makes it harder to identify and track when sex trafficking is occurring (by forcing such activity offline). Organizations like Hacking// Hustling have been organizing in support of sex worker survival under the SESTA/ FOSTA and EARN IT eras of surveillance (Hacking// Hustling, n.d., p. 1).
Both SESTA/ FOSTA and EARN IT’s power hinge on Section 230 of the Communications Decency Act of 1996 (CDA).
Section 4(a) of FOSTA amended Section 230 of the CDA to specify that the CDA does not limit federal civil or criminal prosecution for activity that constitutes sex trafficking and also does not limit state criminal prosecution for activity that constitutes the promotion or facilitation of the prostitution of another person. This means that website operators can be held liable if users of their site violate U.S.C. Title 18, Section 1591 or Section 2421A.
U.S.C Title 18, Section 1591 is existing legislation that criminalizes the sex trafficking of children or by force, fraud or coercion while Section 2421A is new legislation established by Section 3 of FOSTA, titled “Promotion or facilitation of prostitution and reckless disregard of sex trafficking.” The former deals with human trafficking while the latter deals with prostitution in general while conflating it with human trafficking. Section 4(b) of FOSTA allows prosecution against those found in violation of the amendments made in Section 4(a), regardless of when the conduct occurred, including instances that occurred before the amendment was passed (115th Congress, 2018, March 21).
While EARN IT has not become law, it is relevant to review its framing of sex work as being either criminals or victims and to understand its use of Section 230 of the CDA. A review of the bill reveals that its language focuses solely and explicitly on the sexual exploitation of children (Graham, 2020, p. 1). However, it is the context of SESTA/ FOSTA which conflated prostitution with human trafficking that allows for the rhetorical argument in EARN IT to be made. Again, we see the conflation of policy problems that justify the increased criminalization of sex work in the name of saving children. This is not to say that child sex trafficking does not occur, rather, current domestic interventions are not effective at resolving this problem and instead justify increased violence, surveillance, and incarceration of sex workers broadly.
Significance: Untangling the Roots of State Violence through an Interrogation of U.S. Anti-Trafficking Policy
Iris Marion Young (1990) explains the way violence against marginalized groups acts as a form of oppression and injustice by naming its systemic character. She says that it is not single acts of violence themselves that are oppressive but the social context that makes such violence possible, acceptable, or expected (pp. 83–85). Bills like EARN IT and SESTA/ FOSTA utilize the leverages of power afforded to those actors within the branches of government and forces institutions in the private sector to exert control over sex workers whose existence defies what Young (1990) identifies as the bourgeois state’s moral division of labor between reason and sentiment (p. 141).
The rational culture of the bourgeois state allows men to connect with the body and affectivity only within the domestic realm (Young, 1990, p. 141). When people reject these proscribed social norms and determine ways of organizing their lives outside of the heteronormative and monogamous nuclear family or find joy in their bodies and affective expression, it has historically been treated as a threat by the republican traditionalists who benefit from the existing power structure of the state and its laws. The designers of the U.S. Constitution intentionally excluded the laboring class from the civic public and conceived respectability as a republican virtue. These American republicans explicitly asserted the need for a homogenous citizenry and framed groups identified with the body and affectivity as opposed to the nation itself (Young, 1990, pp. 141–142).
Young’s analysis explains the state’s inherent hatred of sentiment and the body. She also explains that repressive violence, such as the implications of SESTA/ FOSTA EARN IT for sex workers, is used intentionally as a coercive tool so that the ruling class can maintain its power (1990, p. 85). Sex workers and their allies have done tremendous work to assert that SESTA/ FOSTA does nothing to end sexual abuse or human trafficking. These points must be understood, SESTA/ FOSTA must be repealed, and government funding to non-state organizations for so-called “anti-trafficking efforts” must be dissolved.
Purpose of the Research: Understanding the Impact of Anti-Trafficking Policy Domestically in the U.S.
Research Question
Does a qualitative analysis of U.S. federal anti-trafficking policy, SESTA/ FOSTA of 2018, demonstrate the use of contradictory language to describe those who participate in sex work/ prostitution? I assume that SESTA/ FOSTA will refer to sex work/ prostitution as both criminals and victims. It is also my assumption that U.S. anti-trafficking policy has evolved to increasingly treat sex work as criminal activity. An assessment of the narrative framing of sex workers in U.S. anti-trafficking policy on a spectrum of victim to criminal offers an access point to interrogate the material effects of increased policing and incarceration on sex workers which have both profit-making and social control motives.
Research Design
For the research design, I will analyze both SESTA and FOSTA, which were passed together but were written as two separate policies. The units of analysis will be the words used to describe sex work, prostitution, or sex trafficking in both SESTA and FOSTA. I used the open coding option from the grounded theory method which means that I created categorical concepts, or codes, for the observed data as I observed it. I have utilized secondary sources to guide my research and sourced the full texts of SESTA/ FOSTA from Congress.gov. SESTA is 10 pages and FOSTA is 4 pages.
This research attempts to explain how sex work and prostitution are framed in federal U.S. anti-trafficking policy. Contemporary debates on SESTA/ FOSTA offer conflicting views on victimization and criminal activity among stakeholders. The data being analyzed represents explanations about how sex work, prostitution, and sex trafficking are understood in the policy arena of sex trafficking.
As a result of the open coding scheme, the following categories were developed:
Results
As a result of the study, I used an open coding scheme to develop categories for sex work, prostitution, and sex trafficking described in the legislative package, SESTA/ FOSTA. I ended up with three categories including: “victim,” “criminal,” and “neutral.” The victim category represents language used that depicts sex work, prostitution, or sex trafficking as being forced or coerced on the participant, the criminal category represents language used that depicts sex work, prostitution, or sex trafficking as explicitly criminal activity, and the neutral category represents language that remains neutral to the nature of the act of sex work, prostitution, or sex trafficking.
I found that SESTA used victim language to describe sex work once and did not use criminal or neutral language at all. FOSTA used victim language to describe sex work three times, criminal language six times, and neutral language once. It is noteworthy that FOSTA’s language flipped between victim and criminal in the same sentence, further convoluting the characteristics of the activity it aims to criminalize.
The highlighted text in the following table is meant to provide specific examples of the coded language used in SESTA/ FOSTA.
Results
Summary of Findings
When viewed separately, SESTA only contains a single use of categorized language that came from the open coding scheme of “victim,” “criminal,” or “neutral.” The specific usage, coded as victim language, makes no distinction between selling sex by choice or by force, fraud, or coercion. This section of SESTA states that website operators will be held responsible for facilitating the “sale of unlawful sex acts with sex trafficking victims,” (Portman, 2018, pp. 5–6).
FOSTA contains three uses of victim language, six uses of criminal language, and one use of neutral language. FOSTA flips between using victim and criminal language in the same sentence twice, convoluting the intent of the legislation. For example, FOSTA states:
“… websites that promote and facilitate prostitution have been reckless in allowing the sale of sex trafficking victims and have done nothing to prevent the trafficking of children and victims of force, fraud, or coercion…” (Wagner, 2018, p. 1).
FOSTA’s single use of neutral language comes from the bill’s affirmative defense clause for individuals being charged with violating the laws associated with FOSTA who can prove that the “promotion or facilitation of prostitution is legal in the jurisdiction where the promotion or facilitation was targeted,” (Wagner, 2018, p. 2).
When viewed as a package, SESTA/ FOSTA demonstrates the use of contradictory language to describe sex work/ prostitution with no distinction between those activities and human trafficking.
Significance: Unwaged Workers and the Crisis of Reproduction
Silvia Federici, an Italian-American activist and scholar from the radical autonomist feminist Marxist tradition, and unfortunately a TERF, asserts that the Wages for Housework campaign of the 1970s was revolutionary because it uncovered a large area of exploitation that had gone unnoticed by Marxists and anarchists. She says:
“It was discovering that unpaid labour is not extracted by the capitalist class only from the waged workday, but that it is also extracted from the workday of millions of unwaged house-workers as well as many other unpaid and un-free laborers. It was redefining the capitalist function of the wage as a creator of labour hierarchies, and an instrument serving to naturalise exploitative social relations and to delegate to wage-workers power over the unwaged. It was unmasking the social relations and thereby re-politicising family life, sexuality, procreation” (Federici, 2019, p. 55).
The pervasiveness of capitalist relations along racialized and gendered hierarchies must also be assessed and interrogated. It is complicity that allows for systems of oppression to perpetuate. This is relevant to sex workers in the U.S. who seek financial stability outside of both legalized economic sectors and the nuclear family.
These results are significant because they provide insight into how rhetorical arguments about the morality of individuals involved in the sex trade have been imbedded into U.S. anti-trafficking policy over time through processes like exploitation creep. It is important for those working in defense of people in the sex trade to understand how language is used as a political tool to influence the allocation of resources for intervention.
Policy Implications
Deborah Stone (1997) explains that society understands the social realm in terms of control and intent where causation is related to purpose. Causal stories are used as a framework to explain the distinctions between actions and consequences, and purpose and lack of purpose. These causal stores are typically embedded in policy problem definitions (p. 301). This is the case with SESTA/ FOSTA which demonstrates a conflation between sex work and human trafficking. Instead, policy solutions should be focused and specific. The issue of human trafficking should be treated separately from sex work.
Suzanne Mettler and Joe Soss (2004) explain how the pursuit of specific policy solutions convey meaning to citizens about the underlying nature of a problem and shapes their perceptions of the issue (p. 62). In the case of SESTA/ FOSTA, the solution to the policy problem of sex trafficking is to make website operators responsible for the content their users share. This framing obscures the government’s ability to partner with website operators to identify when human trafficking does occur and locate who is responsible for it.
Based on the power resource perspective of policy instruments, Christopher Hood developed a typology to describe policy tools as either effectors or detectors. Effectors are tools governments uses to try to make an impact on society and detectors are tools used to gather information. An alternative use of policy tools would be for the government to use the detection tools of Information and Communication Technologies (ITCs), such as the ability to detect suspicious activity online, in partnership with website operators (Bekkers, et al., 2017, pp. 148–150). By refining these detection abilities through ITCs, the government can stop individuals from perpetrating violence while allowing sex workers access to safer working conditions and their bodily autonomy.
Recommendations
A more thorough analysis of human trafficking legislation should be conducted to understand the characterization of sex work and prostitution in the U.S. across federal and state jurisdictions. Additionally, researchers should conduct quantitative analyses to assess if contemporary anti-trafficking laws like SESTA/ FOSTA and EARN IT are actively being used to criminalize people and the characteristics of those who are being criminalized. Further, future research should set out to identify the entities that benefit from the policing and incarceration of sex workers.
At the electoral level, the advancement of sex work decriminalization bills should be advanced at all levels of government. In addition the decriminalization, the U.S. federal government should pass legislation that recognizes sex work as a legal business sector. This designation will help provide a basis through which to extend labor rights to people in the sex trade. Arguably, labor rights can assist those in the sex trade who wish to leave it more effectively than through institutionalized approaches to care such as rehabilitation and increased surveillance.
The legislature should assess the appropriateness of current interventions in human trafficking in the U.S. Anti-trafficking legislation which collapses victimization and criminalization of people in the sex trade should be repealed and replaced with new programming that provides resources to people in the sex trade without having to opt into increased state surveillance or be institutionalized.
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