04/20/2018

Photo (c) anilakkus - Getty Images A social networking website for sex workers has been temporarily shut down in response to a new United States law meant to combat online sex trafficking, reigniting concerns raised by the tech sector that the legislation will stifle speech on the internet.

Switter, pitched as “a Twitter-like platform for Sex Workers,” was founded in late March by a group of sex workers in Australia, where prostitution is legal countrywide and even regulated in some states.

In its single month of operation, Switter amassed nearly 48,000 users across the world. “It's notable, because it's created by sex workers, for sex workers, and the people who created it work out of countries where sex work is not criminalized,” Liara Roux, an adult film producer and activist who used the site, tells ConsumerAffairs in a prepared statement.

The relative popularity of Switter in such a short timeframe shows “that the need for platforms where sex workers can safely communicate is very real,” Roux adds.

Going dark

For seven hours on Wednesday, Switter was suddenly offline. Cloudflare, the service they had used as their content delivery network, said in a notice to Switter’s founders that “your site is in violation of our published Terms of Service. Pursuant to our published policy, Cloudflare will terminate service to your website.”

In a public statement, Switter characterized the move as a possible overreaction, “as the last documented time Cloudflare terminated services was when they terminated the account of a white supremacist website last year.”

CloudFlare’s general counsel tells ConsumerAffairs that they terminated their service with Switter because of anti-sex trafficking legislation that President Donald Trump recently signed into law. CloudFlare adds that they disagree with the law, saying it has left them and other online platforms in a legally precarious situation.

A safe online haven

Switter, described by its founders as “an open and free community for sex workers,” was introduced in response to the Fight Online Sex Trafficking Act (FOSTA), a bipartisan anti-sex trafficking bill signed into law by President Donald Trump on April 11.

Anticipating that other sites or accounts used by sex workers would be shuttered in response to the law, the Australian group launched Switter as an alternative safe haven.

But being run in a country where sex work is not criminalized apparently did not protect the network from FOSTA’s broad reach.

According to Consumer Watchdog, which endorsed the controversial law and is often in the cross-hairs of major tech corporations, FOSTA is “a major step forward not only for families of children who were trafficked, but for everyone who cares about holding tech giants accountable to the rule of law.”

“This is a chink in the Teflon of Google and Facebook’s shield of immunity,” the consumer group adds.

Pro-net neutrality vs. FOSTA

While some consumer groups and numerous organizations devoted to ending child sex trafficking endorsed the measure, critics who advocate for both sex workers and internet companies said that the law as its written is overly broad.

In fact, numerous Internet companies and tech nonprofits that last year fought against tech giants to preserve net neutrality found themselves on the opposite side of the aisle this year, fighting a bill that proponents claimed would hold Big Tech legally accountable for sex trafficking.

Pro-net neutrality advocates who opposed FOSTA include the company Cloudflare, as well as the digital rights advocacy groups the Electronic Frontier Foundation and the Center for Democracy & Technology.

“We're now left in a place, where we, and our customers, and law enforcement is trying to figure out how this is going to get applied,” Doug Kramer, general counsel for Cloudflare, tells ConsumerAffairs.

Cloudflare is one of numerous companies whose services comprise the invisible infrastructure that the internet is founded and built on. As a content delivery network, Cloudflare plays the critical role of delivering data. Previously, the Communications and Decency Act had protected such services from being held liable for the content produced by their third-party clients or internet users.

In a limited set of circumstances, online companies still needed to comply with criminal investigations and lawsuits, but as long as they did so, the online platforms would not face penalties or risk liability for third-party content, Kramer explains.

But FOSTA as it is written fundamentally changes that. Cloudflare’s Kramer tells ConsumerAffairs that they terminated business with Switter “based on attempts to deal with FOSTA, which we think is a bad law and sets a really dangerous precedent.”

What FOSTA does

The new legislation, according to a news release by cosponsor and Congresswoman Carolyn Maloney (D-NY), “makes it clear that internet companies that facilitate sex trafficking are not shielded by federal law.”

Maloney’s office has not yet returned a request for comment, but the tech industry says that FOSTA, while well-intentioned, in fact makes the role that online platforms play in the facilitation of sex trafficking incredibly unclear.

Specifically, FOSTA alters Section 230 of the Communications Decency Act, a measure passed by Congress in the 1990s and characterized as the “the law that gave us the modern internet,” according to research by tech attorney Eric Goldman.

Section 230 “explicitly protects against liability for content posted by third party users,” according to the Internet Association, another organization that fought to preserve net neutrality last year and lobbied against FOSTA this year.

Under FOSTA, which went into effect immediately upon the president’s signature, Section 230 has been amended to target any internet-based business or provider that “promotes or facilitates the prostitution of 5 or more persons” or that simply “acts in reckless disregard of the fact that such conduct contributed to sex trafficking.”

Violators of FOSTA may be fined, “imprisoned for not more than 25 years, or both,” the law states.

In a statement, the Center for Democracy & Technology's Emma Liansó wrote earlier this year that the final version of the legislation was poised to create a confusing mashup of state and federal laws -- or worse.

“The practical result of this legal risk for intermediaries will be broad-based censorship. Smaller platforms will also face the real risk that a single lawsuit could put them out of business,” she wrote. “This bill jeopardizes not only classified ads sites but also dating apps, discussion forums, social media sites, and any other service that hosts user-generated content.”

Making FOSTA more narrow and clear

Switter’s founders, meanwhile, say that they were able to get back online after the seven-hour hiccup by finding a new content delivery network. They added in a press release that Cloudflare never explained why they were banned, other than that they did not comply with its terms of service.

For now, Cloudflare attorney Doug Kramer claims that even internet giants like AT&T and Comcast could be held liable for sex-related content posted by third-parties under FOSTA. He says that lawmakers should give the law a second look and amend the bill to better address numerous unanswered questions it raises.

“FOSTA leaves a lot of uncertainty... and it’s terribly dangerous,” Kramer said. “It's just more the uncertainty than anything. We are hoping that Congress will go back to amend the law to provide that clarity.”