How Does FOSTA-SESTA Impact the Adult Industry?
FOSTA-SESTA (Fight Online Sex Trafficking Act-Stop Enabling Sex Traffickers Act) is a law that was implemented in the United States as a means of ostensibly combating online sex trafficking and non-consensual content by the controversial former Republican President Donald Trump and a U.S. Congress that was dominated by social conservatives and anti-web technology progressives.
Despite the FOSTA-SESTA’s intentions to stop sex trafficking and increase protection for CSAM and CSEM victims, the law has been incredibly ineffectual. As a result, it has suppressed online discourse among sex workers and producers of adult content.
Adult Business Consulting is happy to offer this blog post about this very important topic.
The History of the FOSTA-SESTA
As a result of continued debates over proposals to amend Section 230 of the Communications Decency Act of 1996, FOSTA-SESTA eventually became law. As the first-of-its-kind law, Section 230 was enacted in 1996 together with the rest of the Communications Decency Act to protect minors from age-restricted content, such as criminal obscenity and indecency, on the internet.
It Starts with Section 230
If children were to use the internet to send indecent stuff, it would be illegal. However, the legal definition of “obscene” is broad and can be considered by some juries to include consensual porn content as well as sexual speech that is protected by the constitution.
Numerous civil society groups and civil libertarians pointed out that the law’s structure immediately transgressed the First Amendment of the United States Constitution. This was subsequently confirmed in the landmark Reno v. American Civil Liberties Union (ACLU) Supreme Court case. The Communications Decency Act of 1996 greatly curtailed the First Amendment on the internet, according to most of the high court, and much of the statute could not be fairly applied. But the court decided to keep Section 230. Based on how the high court and subsequent corpus of case law interpret Section 230’s safe harbor provisions that do encompass web platforms, it is referred to as the “First Amendment of the internet.” As a reminder, Section 230 shields most web platforms from legal responsibility for content published by third parties using such platforms.
To self-regulate their platforms and stop illegal activity, such as the posting and distribution of CSAM, all content piracy, other intellectual property rights violations, and non-consensual porn (such as “revenge porn”), adult entertainment companies heavily rely on the safe harbor in Section 230.
Section 230 Criticism Leads to Intervention
Advocates of Section 230 argue that without this law, the internet as we know it today would not exist. There is a ton of data to support their accuracy. Companies who create social media platforms or e-commerce marketplace software are free from the harms brought upon them by external third parties (users) that do breach the platform’s terms and conditions and the law, if applicable, because they are not constantly worried about responsibility. However, as the internet developed, a growing number of conservative and progressive lawmakers have criticized Section 230 because they believe that the safe harbor exempts platforms from responsibility for allowing those who wish to harm others on the internet to do so openly without content moderation or banning.
During Trump’s presidency and the emergence of the new populist right, anti-porn organizations like the infamous National Center on Sexual Exploitation (NCOSE) joined numerous right-wing critics.
Section 230 Moderation Against Trump and His Allies
For instance, before Elon Musk, Twitter suspended far-right talk show host and provocateur Alex Jones for violating the platform’s terms of service and hate speech code. This action drew right-wing criticism of Section 230 of the Communications Decency Act of 1996. Republicans and Alex Jones’s fans began claiming that Twitter and big tech in general had an open anti-conservative bias and actively aimed to ban contentious right-wing views.
In another instance, conspiracy theories about the 2020 election and calls for violence in Donald Trump’s tweets later branded as misinformation and disinformation led to the violent and fatal storming of the U.S. Capitol Building by several far-right militias and other Trump supporters. To further prevent such violence, Facebook and Twitter at the time used Section 230 to remove Donald Trump from their sites.
Anti-Porn Groups and Section 230
NCOSE joined in the condemnation along with similar organizations. The religious right has historically been associated with NCOSE, which was once known as Morality in Media and was founded by conservative Catholics.
In Reno v. ACLU, NCOSE chastised the Supreme Court for caving into civil libertarians at the time. NCOSE persisted in its desire to get FOSTA-SESTA passed by working with other right-wing organizations. Collectively, groups contended that Section 230 gives websites that host adult content, escort classifieds, and other channels for online sex work impunity from potential legal and criminal offenses. Religious right-wing and anti-porn feminist groups, who assert that consensual, controlled porn production ostensibly results in significant sexual exploitation and crime, are responsible for popularizing FOSTA-SESTA. This is untrue, especially because the sector is required to report openly to the Department of Justice and other government organizations.
Criticism of the FOSTA-SESTA
The fact that the law hasn’t effectively targeted sex traffickers and instead has had a chilling impact on free expression and oppressed communities, such as consensual sex workers, is one of the laws complaints. The law’s effects have resulted in the closure of various websites and online forums that sex workers used to screen customers, communicate information about safe working conditions, and support one another after it was passed and adopted by President Donald Trump in 2018. These platforms also gave sex workers a sense of belonging, support, and protection, and their closing has made many in the sex work communities feel more exposed and alone. Sexual censorship online does that. Many have been forced to turn to laboring in dangerous conditions on the streets.
Court Challenges
Since the law’s implementation in 2018, a few organizations representing the adult entertainment sector and civic society have contested it. One significant instance is the current litigation brought out by a class of plaintiffs led by the nonprofit Woodhull Freedom Foundation, among others, against FOSTA-SESTA.
In January 2023, POLITICO reported that the federal D.C. Circuit Court of Appeals is prepared to invalidate a FOSTA-SESTA provision that prohibits the promotion of sex workers. Along with the Internet Archive and Human Rights Watch, the Woodhull Freedom Foundation has publicly continued their legal battle to demonstrate that FOSTA-SESTA is not just an entirely unlawful statute but has also hurt more people than only sex workers.
A Legislative Response
Despite the legal difficulties, one politician had a significant answer to FOSTA-SESTA’s unfavorable effects. The SAFE SEX Workers Study Act was presented by Rep. Ro Khanna, D-Calif., to investigate the social, economic, and legal impacts of FOSTA-SESTA since it was passed during the Trump administration.
In a 2022 press release, Rep. Ro Khanna stated, “I’ve heard from sex workers who have endured greater physical and sexual abuse after being forced off of internet platforms and into the streets to locate clients. Even so, there has never been federal research on the effects of website closures on those who rely on consensual, transactional sex. Even if the post-Trump Republicans control the House of Representatives in 2023, he is anticipated to reintroduce this bill.
Khanna refers to a GAO report that revealed the Department of Justice has only sometimes used it since it was passed. Additionally, there are not many prosecutions. The report, according to Michael McGrady, an associate editor at YNOT.com and a friend of Adult Business Consulting, “indicates that federal prosecutors have barely utilized the law since its passage.”
Read more from the Adult Business Consulting blog.
Adult Business Consulting thanks you for reading this blog post. Please get in touch with us if you have any questions.