Two bills that proponents claim will curb sex trafficking online overwhelmingly passed the Senate last Wednesday, on March 21, causing ripples of concern across the Internet. While the desire to end sex trafficking and hold those in charge responsible is a valid one, many fear the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) and the Stop Enabling Sex Traffickers Act (SESTA) will instead further criminalize sex workers and put them and sex trafficking victims at even more risk. The bill now awaits the president’s signature to make it official.

FOSTA/SESTA was birthed thanks to a case against Backpage.com, a classifieds website. In 2016, executives of Backpage were arrested on charges of pimping a minor, pimping, and conspiracy to commit pimping. Prosecutors claimed that Backpage was primarily developed to facilitate illegal sex work, but the court dismissed the case citing Section 230 of the Communications Decency Act. From that came FOSTA/SESTA.

In the past, Section 230 of the Communications Decency Act was often used to protect websites from legal consequences of what their users posted online, though they would still be accountable to liability under federal criminal law. Section 230 says that ISPs and websites publishing third party content would be protected against laws that would otherwise hold them responsible for the speech of their users. It’s because of Section 230 that we have the freedom to post reviews on Amazon or complain about politics on a Wordpress site. Wikipedia and the Internet Archive exist in part because of Section 230. Granted, that mostly hands-off stance is also claimed as the reason sites like Twitter and Facebook have been loath to do anything about violent threats from white supremacists or the misogynists of Gamergate.

How, then, does FOSTA/SESTA attempt to create that accountability? Well, Section 230 of the Communications Decency Act will be amended to note that websites can be prosecuted if they engage in the "promotion or facilitation of prostitution" or "facilitate traffickers in advertising the sale of unlawful sex acts with sex trafficking victims." The bill seemingly conflates sex trafficking survivors with consensual sex workers, something that many sex work activists say make both less safe.

The Internet Association, which includes media giants like Amazon and Microsoft, initially was against the bill, but withdrew their opposition in exchange for some minimal changes in language. Most notably, Facebook agreed to back down for the addition of the word “knowingly” to the bill, meaning sites would be held liable if they were found to have known about their site being used for the facilitation of sex trafficking or sex work and done nothing about it.

"For years, thousands of women and children have been exploited online, while the websites where they have been sold have operated as business as usual — making millions off of the exploitation. Let’s be clear— we are talking about websites where 12 year olds are sold for sex," Lauren Hersh, national director of World Without Exploitation, told Teen Vogue in a statement. "FOSTA-SESTA is a response to a grave injustice that disproportionately impacts women and girls of color, most who have landed in the sex trade not because of choice, but because of lack of choices or coercion. Trafficking survivors and their families have worked tirelessly with lawmakers to shine a light on the violent, sometimes lethal, reality of online sex trafficking and pass a bill that holds websites that knowingly facilitate trafficking accountable."