How Online Censorship Harms Sex Workers and LGBTQ Communities | News and Comments

In 2018, Congress passed legislation aimed at combating sex trafficking on online platforms. It’s a laudable goal, but the way Congress has gone about it has led to dangerous and disproportionate online censorship, especially of the communities the law was trying to protect.

The law, the Enabling States and Victims to Combat Online Sex Trafficking Act / the Stop Enabling Sex Traffickers Act (FOSTA), did not meaningfully address sex trafficking. Instead, it has chilled speech, shut down online spaces and made sex work more dangerous. Now the courts are poised to interpret it in a way that could compound those harms – imposing liability on online platforms that don’t even know their services are being used for sex trafficking. We recently filed two amicus curiae briefs arguing that courts should not interpret the law in this way, as it would incentivize online intermediaries to censor more online speech – especially material about sex, youth health, LGBTQ+ identity and other important concerns.

FOSTA’s criminal provisions have already chilled online speech. These provisions created an exception to the platform’s immunity under Section 230 for certain crimes related to sex trafficking. Just as the ACLU warned, this exclusion has caused online platforms to remove information that sex workers rely on for their safety, and shut down conversations about education. sex and sex work, especially by and for LGBTQ+ people. Instagram, for example, removed accounts that post about sex; meanwhile, some niche, free, and queer websites have shut down altogether. Online intermediaries have largely shut down “bad client” lists compiled by sex workers to identify abusive clients, and many affordable ways to advertise sex work.

This has pushed people in the sex trade, who work in legal, semi-legal and criminalized industries, off of online platforms and into dangerous and life-threatening scenarios. Some sex workers have had to return to work outdoors or seek clients in person at bars and clubs, where testing is more rushed than online, and where workers are more vulnerable to violence, harassment policeman and HIV. In a study of the effects of FOSTA on sex workers, researchers found that the law increased economic instability for approximately 72% of study participants, and nearly 34% reported increased economic instability. increased violence from clients.

In this context of harm, FOSTA has not led to more prosecutions for sex trafficking. Despite the expanded definition of sex crimes under FOSTA, a June 2021 report by the Government Accountability Office showed that federal prosecutors had not used the additional criminal penalties established by FOSTA. At that time — more than three years after the law was passed — the DOJ had only prosecuted one case using FOSTA. Indeed, it appears that FOSTA has made it more difficult to gather evidence and prosecute those who use platforms for sex trafficking purposes, in part because the platforms have moved overseas.

As if FOSTA hadn’t already done enough harm, the courts are now set to make matters worse by interpreting the law in a way that would open up platforms like Twitter, Omegle, Craigslist and Reddit to liability for activities. of sex trafficking that occur on their services, even though the platforms have no actual knowledge of such activities. If the courts rule that platforms can be held liable simply because they “should have known” that sex trafficking was occurring on their websites, many online platforms will inevitably respond by monitoring their users and taking an even tougher approach. aggressive moderation of content. In particular, they will likely remove and censor more lawful content related to sex and sexual health, including using crude automated tools that tend to perpetuate real-world biases and are incapable of understanding context.

Imposing liability without actual knowledge would not only exacerbate actual harms, but also raise serious First Amendment questions. As the Supreme Court recognized more than 60 years ago, when it comes to imposing liability on booksellers for the content of the books they sell without requiring a certain level of knowledge, distributors “will have tendency to restrict books [they] sale[] to those [they have] inspected” and, therefore, “the contents of bookstores and periodical stands . . . could run out. Because online intermediaries – from Google to Twitter to WhatsApp to Amazon Web Services and other providers who will be governed by the outcome of this case – facilitate the publication and delivery of billions of pieces of content every day, this concern is all the more serious when it comes to online speech.

We urge courts to avoid imposing liability on platforms when they do not actually know that particular crimes are occurring on their websites. This will help ensure that all people, especially the LGBTQ+ community, sex workers and sexual health educators can express themselves freely and safely online.