Bound TogetherOne Year Later, FOSTA-SESTA Throws Sex Workers Back into the Fire

Illustration by Cindy Echevarria

This article was published in Heat Issue #83 | Summer 2019

Late one summer night in 1993, Tamika Spellman, a 27-year-old trans sex worker, stood by a deserted bus stop in Washington, D.C. She was fussing over her tight dress when a black van that had been circling the area stopped nearby. Eager to find clients, Spellman sashayed toward the vehicle. The passenger window rolled down, and a masked figure emerged from the darkness. The figure barked out an order: He wanted her purse. Spellman was stunned. She spotted another man in the back seat holding a gun. Her heart pounded as she quickly handed over her purse and walked back to the bus stop. When she turned around, one of the men fired a shot that shattered the glass pane of the bus stop and pierced her right leg.

Some 26 years later, Spellman still considers the shooting the most traumatic experience of her life. “When you are [working] outdoors, you also have other issues—the possibility of being robbed, raped, beaten,” she says. Spellman, now 52, was 16 when she started soliciting clients on the streets. In the early 2000s, she was able to move her business online because—like many of her peers—she began advertising her services on Craigslist. Many sex workers welcomed this newfound ability to arrange sessions online. Not only was it safer than soliciting in public, but it also allowed them to charge double the price of street-based sex work. Research supports the idea that sex workers who solicit clients online are safer than those who don’t: “Craigslist’s Effect on Violence Against Women,” a November 2017 study conducted by researchers at Baylor University and West Virginia University, found that female homicide fell by between 10 and 17 percent in certain states after Craigslist launched its erotic advertising section in the early 2000s.

In fact, the internet gave women the freedom not to work with pimps or coercive people, says Baylor assistant professor Scott Cunningham, one of the study’s authors. Almost 20 years later, however, sex workers freedom is again restricted, thanks to the Stop Enabling Sex Traffickers Act (SESTA) and the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA)—a package of bills passed in April 2018 that make it illegal to publish offers of sex online. Before FOSTA-SESTA, Spellman says, 75 percent of her clients found her online, but the law immediately shut down more than 20 websites and internet service providers that promoted adult content. Spellman was among the many sex workers forced to return to the streets, and she fears she might face violence again. “I am terrified,” she says.

Spellman is not alone in her trepidation, and in the year since the laws were passed, she has joined a coalition of sex workers demanding the repeal of both bills. Federal law defines sex trafficking as a commercial sex act “induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age.” Meanwhile, under model state criminal provisions, prostitution is defined as “a sexual act or contact with another person in return for giving or receiving a fee or a thing of value.” Clearly, Spellman says, consensual sex work is not sex trafficking by these definitions. “FOSTA-SESTA has made me two things I have never been: a trafficking victim and a trafficker.”

Before FOSTA-SESTA, websites and internet service providers were not held liable for any user-generated content posted on their platforms, including advertisements, comments, and forums. Now, the owner of any platform that posts content involving sexual activity—including consensual sex work—can be sentenced to up to 25 years in prison. FOSTA-SESTA amends Section 230 of the 1996 Communications Decency Act to allow prosecutors to penalize internet companies that “promote or facilitate prostitution.” Section 230—considered among the most important pieces of internet legislation passed in the 1990s—was credited with enabling the growth of online platforms as safe havens for free speech and information sharing. A number of organizations fighting sex trafficking have vehemently supported FOSTA-SESTA, including the Coalition Against Trafficking in Women (CATW). Amnesty International and the Internet Association, whose members include major technology corporations such as Amazon, Google, Microsoft, and Uber, also threw their support behind FOSTA.

“It is a critically important piece of legislation to combat sex trafficking online,” says Taina Bien-Aimé, executive director of CATW, calling FOSTA-SESTA “a surgical amendment to Section 230.” Jason Matthews, a legal representative at End Child Prostitution and Trafficking USA (ECPAT), an international global network that works to end the sexual exploitation of children, agrees. “The goal of the law was to allow victims of human trafficking to seek compensation, just like any other damage or civil remedy.” But sex workers argue that FOSTA-SESTA is a sweeping legal overreach that negatively impacts one group in order to protect another. “People who depend on sex work as a livelihood now, all of a sudden, cannot access clients,” says Melissa Broudo, co-director of a Brooklyn organization called Sharmus Outlaw Advocacy and Rights Institute (SOAR), which advocates for sex workers’ rights. “You lose your ability to advertise. You lose clients you have already vetted. That naturally will force people to more dangerous work environments.”

Laura LeMoon, a 34-year-old sex worker in Seattle, says that the passage of FOSTA-SESTA has severely diminished her income. “It has never been this hard,” says LeMoon, a trafficking survivor who has solicited clients online for most of her professional life. “I could see 20 to 30 clients in a day if I wanted to before. Now I can go three months without seeing a client.” In December 2017, Spellman was making up to $4,000 a month through sex work. After FOSTA-SESTA, she says her monthly earnings have shrunk to between $1,500 and $2,000. She became homeless in December 2018 and has hopped from motel to motel for months. 

The most crucial drawback of working on the streets is the inability to screen clients. Online, workers can set sexual boundaries; decide the location, date, time, and length of sessions; and use various methods to weed out dangerous clients. Apart from requesting the usual information from a client—name, phone number, email address, and home address—some sex workers, including LeMoon, also require potential clients to provide a client résumé indicating their current employment status as well as the names and contact information of sex workers they have previously seen for character verification. LeMoon also prefers to have a phone conversation with clients before meeting them in person. “I would talk to guys on the phone, keep them there as long as possible, and just rely on my gut,” she says.

Other sex workers depend on a “bad-date list”—a website with a database of reported episodes of violence and harassment against sex workers—to screen clients. The list includes clients but might also name police officers, club managers, bouncers, and even cab drivers who have been aggressive toward sex workers. Spellman notes that sex workers input as many identifying details as possible. Because FOSTA-SESTA has disrupted the circulation of the “bad-date list,” Christa Daring, executive director of the social-justice network Sex Workers Outreach Project USA (SWOP), has made an effort to develop a nationwide phone database that sex workers can use to blacklist those who have raped, abused, or harassed them.

“The benefit of having a consistent database is [that] you can promote [it] to sex workers who have limited resources,” Daring says. As she conceived it, the application would monitor sex workers’ text messages, email exchanges, and phone calls and alert them if any potential clients are included on the list. However, FOSTA-SESTA has even put this project on hold. Curious about the effects of the law, the Rhode Island chapter of Call Off Your Old Tired Ethics (COYOTE)—the nation’s first formal advocacy group for sex workers’ rights—polled 262 sex workers living in the state less than a month after FOSTA-SESTA was passed. Sixty percent of respondents admitted to taking on risky clients in order to make ends meet, and 65 percent reported that at least one person had tried to threaten, exploit, or get free sex from them. These are just a few of the reasons that critics believe FOSTA-SESTA is fundamentally flawed. The American Civil Liberties Union (ACLU), for example, denounced the law for its ambiguous use of the phrase “knowingly facilitate.”

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David Greene, civil liberties director at the digital-rights organization Electronic Frontier Foundation (EFF), says that not only is FOSTA-SESTA endangering lives, but it is also broadly censoring online speech. “What if I told a sex worker how to make sex work more safe—is that considered facilitation?” asks Greene. He believes that this kind of unclear phrasing may have already forced smaller websites, those without the means to conduct close surveillance of online traffic, to shut down. EFF sued to invalidate FOSTA last year, but the case was dismissed for lack of standing. It is now being appealed to the United States Court of Appeals for the District of Columbia.

Despite the bills’ continued standing, some sex workers have found ways to work around the laws. “Websites that pretended to shut down after FOSTA-SESTA relaunched a month later with European servers,” says Rob Spectre, chief executive officer of childsafe.ai, an artificial-intelligence platform for protecting children online. “All have increased their premium memberships and many are charging for features that were previously free, like reading initial reviews.” Higher-income sex workers with their own websites have also taken advantage of this loophole, says Kristen DiAngelo, executive director of SWOP in Sacramento. “Those who can afford it immediately shifted.” Those who can’t, however, are left feeling endangered.

The unusually swift passage of FOSTA-SESTA was in part a response to the 2016 murder of 16-year-old Desiree Robinson, who was killed on Christmas Eve after being trafficked via Backpage.com, the website famous for its “adult section” of classified ads. Robinson’s mother, Yvonne Ambrose, filed a wrongful death suit against Backpage in May 2017, alleging that the site was partially responsible for her daughter’s murder. The court decided against Ambrose on account of Section 230—a decision that outraged several politicians, including Ohio Senator Rob Portman, who cosponsored FOSTA-SESTA. “The fact that incidents of human trafficking are increasing in this country, in this century, it’s an outrage,” he told the Washington Post in September 2017. “The selling of human beings online is the dark side of the internet. It can’t be the cost of doing business.”

To appease authorities, Backpage removed its adult section in January 2017, and sex workers migrated to the site’s “personals” section. It wasn’t the first time Backpage was at the center of a controversy. According to the National Center for Missing and Exploited Children, a nonprofit organization established by Congress, Backpage was involved in nearly three-quarters of all online child sex trafficking reports it received from the public—not including reports made by the organization itself. In April 2018, Backpage was seized by federal authorities. In what antitrafficking advocates considered a victory, its founders were indicted on 93 counts of money laundering and facilitating prostitution. The Justice Department described the website as “the internet’s leading forum for prostitution ads, including ads depicting the prostitution of children” and claimed that the site took “consistent and concerted action” by knowingly allowing advertisements for illegal sex work.

The association between Backpage and sex trafficking goes beyond allegations. In 2017, the Polaris Project, the nonprofit organization that operates the National Human Trafficking Hotline, released its data for human trafficking in the United States. Though Polaris did not distinguish whether these cases involved online platforms, it reported that 71 percent of the 8,759 cases of reported trafficking were for sex, which included escort services and outdoor solicitation, while 4 percent were in the form of sex and labor trafficking, which included illicit massage businesses and working in bars and strip clubs. The Department of Justice, Department of Homeland Security, and Department of State, the three agencies responsible for investigating federal trafficking offenses, reported far lower numbers but did show an upward trend.

In 2017, the agencies initiated 282 federal human trafficking prosecutions and charged 553 defendants, higher by 17 and 4 percent, respectively, compared to 2016. Of these prosecutions, 94 percent were primarily involved in sex trafficking. Backpage shuttered for good four days before FOSTA-SESTA passed—around the same time the U.S. government began prosecuting the site’s founders. But since FOSTA-SESTA was enacted, the online demand for commercial sex has also dropped, according to Spectre: “Fewer websites were posting fewer ads, and those ads were marketing fewer providers and attracting fewer buyers,” he says. And though there’s been a slight rebound in recent months as websites reemerge with new looks and new names, Spectre notes that the demand continues to trend downward.

Between January 13 and February 3, 2019, Spectre partnered with the National Johns Suppression Initiative to operate a nationwide sting operation to target sex buyers and reduce sex trafficking: 372 sex buyers were arrested by police agencies across the country, a sharp decrease compared to the 638 arrests made in February 2018. There was also a huge drop in demand this year. Spectre says each advertisement posted in February 2018 received between 100 to 120 responses, while in February this year, each averaged between 20 and 30 responses. “It is clear that the legislation had a dramatic effect on where sex trafficking occurs,” he says.

Legislators are in this morality play. But in reality, it is much more complicated. People are always going to do sex work, and it is not because they are being forced.

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Still, not everyone sees online advertising of sex work as harmful. “People had decent intentions with FOSTA-SESTA, but the practical impact of the law is incredibly detrimental,” says Broudo, the co-director of SOAR Institute, who has advocated for and defended sex workers and survivors of trafficking for 12 years as a criminal-defense lawyer. “Legislators are in this morality play. But in reality, it is much more complicated. People are always going to do sex work, and it is not because they are being forced.” “I cannot believe the absolute ignorance among legislators who overwhelmingly supported this legislation,” Cunningham says of FOSTA-SESTA. “It is trying to drive women out of prostitution by force. When people are kicked out of an industry they do not necessarily want to get kicked out of, they are not better off.” The freedom and bodily autonomy that sex workers like Spellman found when they no longer relied on others to sell their services disappears when they return to the streets.

Kate D’Adamo, national policy advocate at the Sex Workers Project, says that clients are now demanding more services for less money because they know sex workers are more desperate. “Managers, pimps, old boyfriends are again saying ‘You need us now,’” she notes. “Power dynamics are shifting.” Shortly after FOSTA-SESTA was passed, D’Adamo mobilized sex workers and allies to raise awareness about what she perceived as the dangers of the new law, designating June 1, 2018, as the inaugural federal Sex Worker Lobby Day. More than a dozen women met with congressional staffers on Capitol Hill to talk to them about the ways FOSTA-SESTA puts their communities at risk. “We wanted the representatives to know that sex workers are not an unknown population,” D’Adamo says. “They are people you can actually converse with.” She also stressed that sex workers were never consulted during the drafting of FOSTA-SESTA, which is why they’re building relationships with politicians in preparation for future laws that might affect them.

To this, ECPAT’s Jason Matthews responds, “Sex work is not legal. It is not our function to consult sex workers.” Though Matthews acknowledges that there are some sex workers who engage in sex work by choice, he thinks that the majority are coerced. “Is there a community of people that engages in prostitution voluntarily? Yes, but you are giving voice to a tiny minority.” Yet in the same 2017 study conducted by COYOTE, 90 percent of the sex workers surveyed said they do not consider themselves victims of trafficking. Kristen DiAngelo of SWOP in Sacramento said that, even if she had three pimps during her early years as a sex worker, she still does not believe that shutting down websites does anything to help people who are unwillingly trafficked. “Trafficking victims will not just disappear into thin air,” she says. “What [happens] is that traffickers will put someone on a street corner, where it is more dangerous.”

DiAngelo recalls the story of a young sex worker who approached her organization’s office. “When the website [where clients found her] was shut down, she was still trafficked by her pimp,” DiAngelo says. “But this time, she was left in the street.” And because the young woman had never worked the streets, she was robbed at gunpoint and beaten up by her pimp. “The idea that taking down websites will get rid of trafficking is a simplistic thing.” Some advocates say the best way to protect sex workers is to focus on decriminalizing sex work altogether rather than prohibiting advertising. But while that debate goes on, others assert it is most important to keep sex workers safe. For this reason, Spellman says she would never argue against anything that would prevent human trafficking. In three years, when Spellman is 55, she would like to retire to a quiet place in Southern California, surrounded by clusters of trees and a noisy family of pets—pigs, goats, and chickens. She also hopes to publish a book about her life as a trans sex worker and to help make the sex industry safer for those like her.

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by Isabelle T. Lee
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Isabelle T. Lee covers social injustice with a focus on gender issues. She believes in using journalism as a public service tool to empower women and drive systemic change. She lives in New York, where she is working on master’s degrees in journalism and international affairs at Columbia University.