Forbidding the promotion of prostitution on the Internet…would be “to burn the house to roast the pig.” – Alex F. Levy
Unless you were overseas, deeply inebriated or in a coma for the past two days, I’m sure you’ve heard that the massive internet censorship bill known as FOSTA passed the US Senate Wednesday as unanimously as bad laws based on moral panic always do; all it lacks is Trump’s signature to become law, and unless he pulls one of his bizarre reversals that’s pretty much a given. The law is so blatantly unconstitutional (on several grounds, including flagrant violations of the first and tenth amendments, and article 1’s ban on ex post facto laws) that even the DoJ (which never saw an expansion of federal power it didn’t like) recognizes that, and it will indubitably be challenged as soon as it hits the ground; unless the judge who hears that challenge is some kind of incompetent lunatic he’ll issue an injunction against enforcing it until the case is settled, which could take years. But that doesn’t mean we can relax; the big businesses which control the internet are so risk-averse many of them are unlikely to wait for the outcome of that ruling, and will simply start pre-emptively censoring sex work content as Reddit already has:
Sometime around 2 a.m. [yesterday], Reddit banned several long-running sex worker forums from the platform. The move comes just hours after the Senate passed a bill making digital facilitation of prostitution a federal crime. Under the new law, social media sites and other hubs of user-generated content can be held criminally liable…Even if individuals aren’t targeted by law enforcement for placing ads, and even if individual cases brought by state prosecutors are struck down as unconstitutional, a lot of platforms will preemptively ban anything remotely related to sex work rather than risk it. So far, four subreddits related to sex have banned: Escorts, Male Escorts, Hookers, and SugarDaddy. None were what could accurately be described as advertising forums…The escort forums were largely used by sex workers to communicate with one another…
Craigslist followed last night, removing its US personals ad section and posting this apology:
US Congress just passed HR 1865, “FOSTA”, seeking to subject websites to criminal and civil liability when third parties (users) misuse online personals unlawfully. Any tool or service can be misused. We can’t take such risk without jeopardizing all our other services, so we are regretfully taking craigslist personals offline. Hopefully we can bring them back some day. To the millions of spouses, partners, and couples who met through craigslist, we wish you every happiness!
I and many others have explained why this law is so uniquely awful, but let’s just sum it up once more:
- It allows US government censorship of the entire internet, destroys social media in all but the most neutered form, and creates a de facto internet cartel controlled entirely by the wealthiest and most powerful media corporations;
- It criminalizes all sex work advertising and creates a new federal prostitution crime;
- It allows both ambitious DAs and greedy opportunists to attack any internet entity with either criminal charges or civil suits for activity that was perfectly legal when it occurred.
Even if you aren’t a sex worker or civil libertarian, you should be able to see the issues with this, and so should all of the politicians who voted for it, who are guilty of nothing short of criminal incompetence:
Notre Dame law instructor Alex F. Levy:
The law relies on the unsubstantiated idea that reducing prostitution will reduce trafficking. Indeed, the legislative report defends the regulation by proclaiming, without citation, that “[p]rostitution and sex trafficking are inextricably linked, and where prostitution is legalized or tolerated, there is a greater demand for human trafficking victims and nearly always an increase in the number of women and children trafficked into commercial sex slavery”…But the claim that legalizing (or decriminalizing) prostitution leads to sex trafficking is widely controverted by scholars…Congress does not even inquire into the basic reliability of the premise that undergirds this sweeping content-based speech restriction…it…restricts Constitutionally protected speech, yet fails under both strict and intermediate scrutiny standards. It is unconstitutional and should not be passed into law…
Tech law journalist Mike Masnick:
…Senator Richard Blumenthal — who has spent years attacking the internet, and who has already stated that if SESTA kills small internet businesses he would consider that a good thing…sent out a letter…[in which] almost everything stated…is 100% factually wrong…so wrong that it raises serious questions about whether Blumenthal understands some fairly fundamental issues in the bill he’s backing. Professor Eric Goldman has a pretty concise explanation of everything that’s wrong with the statement, noting that it…shows that SESTA’s main sponsors don’t even understand the very basic aspects of CDA 230…you have to start wondering what the hell is happening in the Senate, and in particular in Senator Blumenthal’s office. He is not just doing a big thing badly — he is gleefully spouting the exact opposite of basic facts about both the existing law, and the bill he sponsored. I know that politicians aren’t exactly known for their honesty, but he seems to be taking this to new levels…
Even economist Scott Cunningham, whom I’ve castigated more than once for not grasping basic facts about the demimonde, sure understands this one:
…This bill claims to be all about sex trafficking, but it seems to have a deep ignorance about how these markets work and a deep ignorance about the benefits of these technologies. The people who support it don’t know about the client screening, they don’t know about the movement indoors and they don’t know that women are using these online platforms in order to avoid danger. They don’t know or they don’t care…
Though Cunningham is perhaps being cautious and/or polite in his last statement, I think it’s pretty obvious that the latter clause is far more likely than the former. Don’t you?
