The Fight to Overturn FOSTA, an Unconstitutional Internet Censorship Law, Continues
||16th September 2022 |
See CC article from eff.org by Aaron Mackey
More than four years after its enactment, FOSTA remains an unconstitutional law that broadly censored the internet and harmed sex workers and others by chilling their ability to speak, organize, and access information online.
And the fight to overturn FOSTA continues. Last week, two human rights organizations, a digital library, a sex worker activist, and a certified massage therapist filed their opening brief in a case that seeks to strike down the law for its many constitutional violations.
Their brief explains to a federal appellate court why FOSTA is a direct regulation of people's speech that also censors online intermediaries that so many rely upon to speak--classic First Amendment violations. The brief also
details how FOSTA has harmed the plaintiffs, sex workers, and allies seeking to decriminalize the work and make it safer, primarily because of its vague terms and its conflation of sex work with coercive trafficking.
created a predictable speech-suppressing ratchet leading to 'self-censorship of constitutionally protected material' on a massive scale," the plaintiffs, Woodhull Freedom Foundation, Human Rights Watch, The Internet Archive, Alex Andrews, and Eric
Koszyk, argue. "Websites that support sex workers by providing health-related information or safety tips could be liable for promoting or facilitating prostitution, while those that assist or make prostitution easier--i.e., 'facilitate' it--by
advocating for decriminalization are now uncertain of their own legality."
FOSTA created new civil and criminal liability for anyone who "owns, manages, or operates an interactive computer service" and creates
content (or hosts third-party content) with the intent to "promote or facilitate the prostitution of another person." The law also expands criminal and civil liability to classify any online speaker or platform that allegedly assists, supports,
or facilitates sex trafficking as though they themselves were participating "in a venture" with individuals directly engaged in sex trafficking.
FOSTA doesn't just seek to hold platforms and hosts criminally responsible
for the actions of sex-traffickers. It also introduces significant exceptions to the civil immunity provisions of one of the internet's most important laws, 47 U.S.C. § 230. These exceptions create new state law criminal and civil liability for online
platforms based on whether their users' speech might be seen as promoting or facilitating prostitution, or as assisting, supporting or facilitating sex trafficking.
The plaintiffs are not alone in viewing FOSTA as an overbroad
censorship law that has harmed sex workers and other online speakers. Four friend-of-the-court briefs filed in support of their case this week underscore FOSTA's disastrous consequences.
The Center for Democracy & Technology's
brief argues that FOSTA negated the First Amendment's protections for online intermediaries and thus undercut the vital role those services provide by hosting a broad and diverse array of users' speech online.
Congress may have only intended the laudable goal of halting sex trafficking, it went too far: chilling constitutionally protected speech and prompting online platforms to shut down users' political advocacy and suppress communications having nothing to
do with sex trafficking for fear of liability," CDT's brief argues.
A brief from the Transgender Law Center describes how FOSTA's breadth has directly harmed lesbian, gay, transgender, and queer people.
"Although FOSTA's text may not name gender or sexual orientation, FOSTA's regulation of speech furthers the profiling and policing of LGBTQ people, particularly TGNC people, as the statute's censorial effect has resulted in the
removal of speech created by LGBTQ people and discussions of sexuality and gender identity," the brief argues. "The overbroad censorship resulting from FOSTA has resulted in real and substantial harm to LGBTQ people's First Amendment rights as
well as economic harm to LGBTQ people and communities."
Two different coalitions of sex worker advocacy and harm reduction groups filed briefs in support of the plaintiffs that show FOSTA's direct impact on sex workers and
how the law's conflation of consensual sex work with coercive trafficking has harmed both victims of trafficking and sex workers.
A brief led by Call Off Your Old Tired Ethics (COYOTE) of Rhode Island published data from its
recent survey of sex workers showing that FOSTA has made sex trafficking more prevalent and harder to combat.
"Every kind of sex worker, including trafficking survivors, have been impacted by FOSTA precisely because its broad
terms fail to distinguish between different types of sex work and trafficking," the brief argues. The brief goes on to argue that FOSTA's First Amendment problems have "made sex work more dangerous by curtailing the ability to screen clients on
trusted online databases, also known as blacklists."
A brief led by Decriminalize Sex Work shows that "FOSTA is part of a legacy of federal and state laws that have wrongfully conflated human trafficking and adult
consensual sex work while overlooking the realities of each."
"The limitations on free speech caused by FOSTA have essentially censored harm reduction and safety information sharing, removed tools that sex workers used
to keep themselves and others safe, and interrupted organizing and legislative endeavors to make policies that will enhance the wellbeing of sex workers and trafficking survivors alike," the brief argues. "Each of these effects has had a
devastating impact on already marginalized and vulnerable communities; meanwhile, FOSTA has not addressed nor redressed any of the issues cited as motivation for its enactment."
The plaintiffs' appeal marks the second time
the case has gone up to the U.S. Court of Appeals for the District of Columbia. The plaintiffs previously prevailed in the appellate court when it ruled in 2020 that they had the legal right, known as standing, to challenge FOSTA, reversing an earlier
district court ruling.
Now Facebook is in court for not protecting victims of sex trafficking, no doubt wishing it hadn't supported the removal of the very same legal protection it now needs
||7th May 2019 |
See article from chron.com
Lawyers for Facebook and Instagram have appeared in a Texas courtrooms attempting to dismiss two civil cases that accuse the social media sites of not protecting victims of sex trafficking.
The Facebook case involves a Houston woman who in October
said the company's morally bankrupt corporate culture left her prey to a predatory pimp who drew her into sex trafficking as a child. The Instagram case involves a 14-year-old girl from Spring who said she was recruited, groomed and sold in 2018 by a man
she met on the social media site.
Of course Facebook is only embroiled in this case because it supported Congress to pass an anti-trafficking amendment in April 2018. Stop Enabling Sex Traffickers Act and Fight Online Sex Trafficking Act,
collectively known as SESTA-FOSTA, this attempts to make it easier to prosecute owners and operators of websites that facilitate sex trafficking. This act removed the legal protection for websites that previously meant they couldn't be held responsible
for the actions of its members.
After the Houston suit was filed, a Facebook spokesperson said human trafficking is not permitted on the site and staffers report all instances they're informed about to the National Center for Missing and Exploited
Children. Of course that simply isn't enough any more, and now they have to proactively stop their website from being used for criminal activity.
The impossibility of preventing such misuse has led to many websites pulling out of anything that may
be related to people hooking up for sex, lest they are held responsible for something they couldn't possibly prevent.
But perhaps Facebook has enough money to pay for lawyers who can argue their way out of such hassles.
The Adult Performers Actors Guild is standing up for sex workers who are tired of being banned from Instagram with no explanation.
7th May 2019. See
article from vice.com
In related news, adult performers are campaigning against being arbitrarily banned from their accounts by Facebook and Instagram. It seems likely that the social media companies are summarily ejecting users detected to have any connection with people
getting together for sex.
As explained above, the social media companies are responsible for anything related to sex trafficking happening on their website. They practically aren't able to discern sex trafficking from consensual sex so the only
protection available for internet companies is to ban anyone that might have a connection to sex.
This reality is clearly impacting those effected. A group of adult performers is starting to organize against Facebook and Instagram for removing
their accounts without explanation. Around 200 performers and models have included their usernames in a letter to Facebook asking the network to address this issue.
Alana Evans, president of the Adult Performers Actors Guild (APAG), a union that
advocates for adult industry professionals' rights, told Vice. There are performers who are being deleted, because they put up a picture of their freshly painted toenails
In an April 22 letter to Facebook, the Adult Performers Actors
Guild's legal counsel James Felton wrote:
Over the course of the last several months, almost 200 adult performers have had their Instagrams accounts terminated without explanation. In fact, every day, additional
performers reach out to us with their termination stories. In the large majority of instances, her was no nudity shown in the pictures. However, it appears that the accounts were terminated merely because of their status as an adult performer.
Effort to learn the reasons behind the termination have been futile. Performers are asked to send pictures of their names to try to verify that the accounts are actually theirs and not put up by frauds. Emails are sent and there is no
Texas woman sues Facebook for not preventing her from being lured into prostitution
||4th October 2018 |
See article from avn.com
The recent Fosta law in the US forces internet companies to censor anything to do with legal, adult and consensual sex work. It holds them liable for abetting sex traffickers even when they can't possibly distinguish the trafficking from the legal sex
work. The only solution is therefore to ban the use of their platforms for any personal hook ups. So indeed adult sex work websites have been duly cleansed from the US internet.
But now a woman is claiming that Facebook facilitated trafficking when of
course its nigh on impossible for Facebook to detect such use of their networking systems. But of course that's no excuse under the FOSTA.
According to a new lawsuit by an unnamed woman in Houston, Texas, Facebook's morally bankrupt corporate
culture for permitting a sex trafficker to force her into prostitution after beating and raping her. She claims Facebook should be held responsible when a user on the social media platform sexually exploits another Facebook user. The lawsuit says that
Facebook should have warned the woman, who was 15 years old at the time she was victimized, that its platform could be used by sex traffickers to recruit and groom victims, including children.
The lawsuit also names Backpage.com, which according
to a Reuters report , hosted pictures of the woman taken by the man who victimized her after he uploaded them to the site.
The classified advertising site Backpage has already been shut down by federal prosecutors in April of this year.
The EFF's case opposing US internet censorship under the recent FOSTA law is dismissed by a federal court
||26th September 2018 |
See article from eff.org
See court decisiom [pdf] from assets.documentcloud.org
A federal court considering a challenge to the Allow States and Victims to Fight Online Sex Trafficking Act of 2017, or FOSTA , dismissed the case on Monday.
EFF and partner law firms filed a lawsuit in June against the
Justice Department on behalf of two human rights organizations, a digital library, an activist for sex workers, and a certified massage therapist to block enforcement of FOSTA.
Unfortunately, a federal court sided with the
government and dismissed Woodhull Freedom Foundation et al. v. United States. The court did not reach the merits of any of the constitutional issues, but instead found that none of the plaintiffs had standing to challenge the law's legality.
We're disappointed and believe the decision is wrong. For example, the court failed to apply the standing principles that are usually applied in First Amendment cases in which the plaintiffs' speech is chilled. The plaintiffs are
considering their options for their next steps.
FOSTA was passed by Congress for the worthy purpose of fighting sex trafficking, but the poorly-written bill contains language that criminalizes the protected speech of those who
advocate for and provide resources to adult, consensual sex workers. Worse yet, the bill actually hinders efforts to prosecute sex traffickers and aid victims.
The lawsuit argues that FOSTA forces community forums and speakers
offline for fear of criminal charges and heavy civil liability, in violation of their constitutional rights. We asked the federal court to strike down the law, though the government argued that the plaintiffs were not likely to be subject to criminal or
civil liability under the law.
Law Is Causing Online Censorship and Removal of Protected Speech
||20th July 2018 |
18th July 2018. See press release from eff.org
On Thursday, July 19, at 4 pm, the Electronic Frontier Foundation (EFF) will urge a federal judge to put enforcement of FOSTA on hold during the pendency of its lawsuit challenging the constitutionality of the federal law. The hold is needed, in
part, to allow plaintiff Woodhull Freedom Foundation, a sex worker advocacy group, to organize and publicize its annual conference, held August 2-5.
FOSTA , or the Allow States and Victims to Fight Online Sex Trafficking Act, was
passed by Congress in March. But despite its name, FOSTA attacks online speakers who speak favorably about sex work by imposing harsh penalties for any website that might be seen as facilitating prostitution or contribute to sex trafficking. In Woodhull
Freedom Foundation v. U.S. , filed on behalf of two human rights organizations, a digital library, an activist for sex workers, and a certified massage therapist, EFF maintains the law is unconstitutional because it muzzles constitutionally protected
speech that protects and advocates for sex workers and forces speakers and platforms to censor themselves.
Enforcement of the law should be suspended because the plaintiffs are likely to win the case and because it has caused, and
will continue to cause, irreparable harm to the plaintiffs, EFF co-counsel Bob Corn-Revere of Davis Wright Tremaine will tell the court at a hearing this week on the plaintiffs' request for a preliminary injunction. Because of the risk of criminal
penalties, the plaintiffs have had their ads removed from Craigslist and censored information on their websites. Plaintiff Woodhull Freedom Foundation has censored publication of information that could assist sex workers negatively impacted by the law.
FOSTA threatens Woodhull's ability to engage in protected online speech, including livestreaming and live tweeting its August meeting, unless FOSTA is put on hold.
Update: A little reserved
20th July 2018. See
article from avn.com
Judge Richard Leon of United States District Court in Washington D.C. heard Woodhull's request for a preliminary injunction that would stop the law from remaining in effect until the group's lawsuit, but did not issue a judgement. Nor did he announce a
date when he would issue a ruling.
According to one account from inside the courtroon, Leon sounded skeptical that the law had actually caused harm to the plaintiffs in the case.
YouTube bans Erica Lust's series In Conversation with Sex Workers
||15th July 2018 |
14th July 2018. See article
See banned videos from erikalust.com
YouTube has banned Erika Lust's series In Conversation with Sex Workers.
There was NO explicit content, NO sex, NO naked bodies, NO (female) nipples or anything else that breaks YouTube's strict guidelines in the series, Lust wrote on her
website. It was simply sex workers speaking about their work and experiences.
Presumably the censorship is inspired by the US FOSTA internet censorship where YouTube would be held liable for content that facilitates sex trafficking. It is cheaper
and easier for YouTube to take down any content that could in anyway connected to sex trafficking than spend time checking it out.
Erika Lust, a Barcelona-based erotic filmmaker, wrote in a blog post on Wednesday that YouTube terminated her
eponymous channel on July 4, when it had around 11,000 subscribers. The ban came after an interviewee for the company's series In Conversation With Sex Workers, which had been on YouTube for about a week, tweeted to promote her involvement in the film.
Within hours of that tweet the channel was terminated, citing violation of community guidelines.
Update: Charlotte Rose too
15th July 2018. See
article from twitter.com
Charlotte Rose, a well known sex industry campaigner tweets:
We've just received an email to say that my YouTube channel has been suspended with no room for appeal - looks like no more live streams of
I don't understand why I've been a target of a total censorship! @YouTube removes my Chanel and 5 years worth of content (which made them money) with no warning.
FOSTA internet censorship has blind-sided police in their pursuit of pimps and traffickers
||12th July 2018 |
article from techdirt.com
Supporters of the US internet censorship law FOSTA were supposedly attempting to target pimps and traffickers, but of course their target was the wider sex work industry. Hence they weren't really interested in the warning that the law would make it
harder to target pimps and sex traffickers as their activity would be driven off radar.
Anyway it seems that the police at least have started to realise that the warning is coming true, but I don't suppose this will bother the politicians much.
Over in Indianapolis, the police have just arrested their first pimp in 2018, and it involved an undercover cop being approached by the pimp. The reporter asks why there have been so few such arrests, and the police point the finger right at the shutdown
The cases, according to Sgt. John Daggy, an undercover officer with IMPD's vice unit, have just dried up. The reason for that is pretty simple: the feds closed police's best source of leads, the online personals site Backpage, earlier
this year. Daggy explained:
We've been a little bit blinded lately because they shut Backpage down. I get the reasoning behind it, and the ethics behind it, however, it has blinded us. We used to look at Backpage as a
trap for human traffickers and pimps.
With Backpage, we would subpoena the ads and it would tell a lot of the story. Also, with the ads we would catch our victim at a hotel room, which would give us a crime scene. There's a ton of
evidence at a crime scene. Now, since [Backpage] has gone down, we're getting late reports of them and we don't have much to go by.
By demonstrating that legitimate businesses are being unconstitutionally censored
||11th July 2018 |
See article from eff.org CC by
The EFF writes:
We are asking a court to declare the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 ("FOSTA") unconstitutional and prevent it from being enforced. The law was written so poorly that it
actually criminalizes a substantial amount of protected speech and, according to experts, actually hinders efforts to prosecute sex traffickers and aid victims.
In our lawsuit, two human rights organizations, an individual
advocate for sex workers, a certified non-sexual massage therapist, and the Internet Archive, are challenging the law as an unconstitutional violation of the First and Fifth Amendments. Although the law was passed by Congress for the worthy purpose of
fighting sex trafficking, its broad language makes criminals of those who advocate for and provide resources to adult, consensual sex workers and actually hinders efforts to prosecute sex traffickers and aid victims.
strongly opposed FOSTA
legislative process . During the months-long Congressional debate on the law we expressed our concern that the law violated
free speech rights and would do heavy damage to online freedoms. The law that was
ultimately passed by Congress and signed into law by President Trump was actually the
most egregiously bad of those Congress had been considering.
What FOSTA Changed
FOSTA made three major changes to existing law. The first two involved changes to federal criminal law:
First, it created an entirely new federal crime by adding a new section to the Mann Act. The new law makes it a crime to "own, manage or operate" an online service with the intent to "promote or facilitate"
"the prostitution of another person." That crime is punishable by up to 10 years in prison. The law further makes it an "aggravated offense," punishable by up to 25 years in prison and also subject to civil lawsuits if
"facilitation" was of the prostitution of 5 or more persons, or if it was done with "reckless disregard" that it "contributed to sex trafficking." An aggravated violation may also be the basis for an individual's civil
lawsuit. The prior version of the Mann Act only made it illegal to physically transport a person across state lines for the purposes of prostitution.
Second, FOSTA expanded existing federal criminal sex trafficking law.
Before SESTA, the law made it a crime to knowingly advertise sexual services of a minor or any person doing so only under force, fraud, or coercion, and also criminalized several other modes of conduct. The specific knowledge requirement for advertising
(that one must know he advertisement was for sex trafficking) was an acknowledgement that advertising was entitled to some First Amendment protection. The prior law additionally made it a crime to financially benefit from "participation in a
venture" of sex trafficking. FOSTA made seemingly a small change to the law: it defined "participation in a venture" extremely broadly to include "assisting, supporting, or facilitating." But this new very broad language has
created great uncertainty about liability for speech other than advertising that someone might interpret as "assisting" or "supporting" sex trafficking, and what level of awareness of sex trafficking the participant must have.
As is obvious, these expansions of the law are fraught with vague and ambiguous terms that have created great uncertainty about what kind of online speech is now illegal. FOSTA does not define "facilitate",
"promote", "contribute to sex trafficking," "assisting," or supporting" -- but the inclusion of all of these terms shows that Congress intended the law to apply expansively. Plaintiffs thus reasonably fear it will be
applied to them. Plaintiffs Woodhull Freedom Foundation and Human Rights Watch advocate for the decriminalization of sex work, both domestically and internationally. It is unclear whether that advocacy is considered "facilitating" prostitution
under FOSTA. Plaintiffs Woodhull and Alex Andrews offer substantial resources online to sex workers, including important health and safety information. This protected speech, and other harm reduction efforts, can also be seen as "facilitating"
prostitution. And although each of the plaintiffs vehemently opposes sex trafficking, Congress's expressed sense in passing the law
was that sex trafficking and sex work were "inextricably linked." Thus, plaintiffs are legitimately concerned that their advocacy on behalf of sex workers will be seen as being done in reckless disregard of some "contribution to sex
trafficking," even though all plaintiffs vehemently oppose sex trafficking.
The third change significantly undercut the protections of one of the Internet's most important laws, 47 U.S.C. § 230, originally a provision of the
Communications Decency Act, commonly known simply as Section 230 or CDA 230:
FOSTA significantly undermined the legal protections intermediaries had under 42 U.S.C. § 230, commonly known simply as Section 230. Section 230 generally immunized intermediaries form liability arising from content created by
others--it was thus the chief protection that allowed Internet platforms for user-generated content to exist without having to review every piece of content appearing posted to them for potential legal liability. FOSTA undercut this immunity in three
significant ways. First, Section 230 already had an exception for violations of federal criminal law, so the expansion of criminal law described above also automatically expanded the Section 230 exception. Second, FOSTA nullified the immunity also for
state criminal lawsuits for violations of state laws that mirror the violations of federal law. And third, FOSTA allows for lawsuits by individual civil litigants.
The possibility of these state criminal and private civil lawsuit is very troublesome. FOSTA vastly magnifies the risk an Internet host bears of being sued. Whereas federal prosecutors typically carefully pick and choose which
violations of law they pursue, the far more numerous state prosecutors may be more prone to less selective prosecutions. And civil litigants often do not carefully consider the legal merits of an action before pursing it in court. Past experience teaches
us that they might file lawsuits merely to intimidate a speaker into silence -- the cost of defending even a meritless lawsuit being quite high. Lastly, whereas with federal criminal prosecutions, the US Department of Justice may offer clarifying
interpretations of a federal criminal law that addresses concerns with a law's ambiguity, those interpretations are not binding on state prosecutors and the millions of potential private litigants.
FOSTA Has Already Censored
As a result of these hugely increased risks of liability, many platforms for online speech have shuttered or restructured. The following as just two examples:
Two days after the Senate passed FOSTA, Craigslist eliminated its Personals section, including non-sexual subcategories such as "Missed Connections" and "Strictly Platonic." Craigslist
attributed this change to FOSTA, explaining "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." Craigslist also shut down its Therapeutic Services section and will not permit ads that were previously listed in Therapeutic Services to be re-listed in
other sections, such as Skilled Trade Services or Beauty Services.
VerifyHim formerly maintained various online tools that helped sex workers avoid abusive clients. It described itself as "the biggest dating blacklist
database on earth." One such resource was JUST FOR SAFETY, which had screening tools designed to help sex workers check to see if they might be meeting someone dangerous, create communities of common interest, and talk directly to each other about
safety. Following passage of FOSTA, VerifyHim took down many of these tools, including JUST FOR SAFETY, and explained that it is "working to change the direction of the site."
Plaintiff Eric Koszyk is a certified massage therapist running his own non-sexual massage business as his primary source of income. Prior to FOSTA he advertised his services exclusively in Craigslist's Therapeutic Services section.
That forum is no longer available and he is unable to run his ad anywhere else on the site, thus seriously harming his business. Plaintiff the Internet Archive fears that it can no longer rely on Section 230 to bar liability for content created by third
parties and hosted by the Archive, which comprises the vast majority of material in the Archive's collection, on account of FOSTA's changes to Section 230. The Archive is concerned that some third-party content hosted by the Archive, such as archives of
particular websites, information about books, and the books themselves, could be construed as promoting or facilitating prostitution, or assisting, supporting, or facilitating sex trafficking under FOSTA's expansive terms. Plaintiff Alex Andrews
maintains the website RateThatRescue.org, a sex worker-led, public, free, community effort to share information about both the organizations and services on which sex workers can rely, and those they should avoid. Because the site is largely
user-generated content, Andrews relies on Section 230's protections. She is now concerned that FOSTA now exposes her to potentially ruinous civil and criminal liability. She has also suspended moving forward with an app that would offer harm reduction
materials to sex workers. Human Rights Watch relies heavily on individuals spreading its reporting and advocacy through social media. It is concerned that social media platforms and websites that host, disseminate, or allow users to spread their reports
and advocacy materials may be inhibited from doing so because of FOSTA.
And many many others are experiencing the same uncertainty and fears of prosecution that are plaguing other advocates, service providers, platforms, and
platform users since FOSTA became law.
We have asked the court to preliminarily enjoin enforcement of the law so that the plaintiffs and others can exercise their First Amendment rights until the court can issue a final ruling.
But there is another urgent reason to halt enforcement of the law. Plaintiff Woodhull Freedom Foundation is holding its annual Sexual Freedom Summit August 2-, 2018. Like past years, the Summit features a track on sex work, this year titled "Sex as
Work," that seeks to advance and promote the careers, safety, and dignity of individuals engaged in professional sex work. In presenting and promoting the Sexual Freedom Summit, and the Sex Work Track in particular, Woodhull operates and uses
interactive computer services in numerous ways: Woodhull uses online databases and cloud storage services to organize, schedule and plan the Summit; Woodhull exchanges emails with organizers, volunteers, website developers, promoters and presenters
during all phases of the Summit; Woodhull has promoted the titles of all workshops on its Summit website ; Woodhull also publishes the biographies and contact information
for workshop presenters on its website, including those for the sex workers participating in the Sex Work Track and other tracks. Is publishing the name and contact information for a sex worker "facilitating the prostitution of another person"?
If it is, FOSTA makes it a crime.
Moreover, most, if not all, of the workshops are also promoted by Woodhull on social media such as Facebook and Twitter; and Woodhull wishes to stream the Sex Work Track on Facebook, as it does
other tracks, so that those who cannot attend can benefit from the information and commentary.
Without an injunction, the legality under FOSTA of all of these practices is uncertain. The preliminary injunction is necessary so that
Woodhull can conduct the Sex as Work track without fear of prosecution.
It is worth emphasizing that Congress was repeatedly warned that it was passing a law that would censor far more speech than was necessary to address the
problem of sex trafficking, and that the law would indeed hinder law enforcement efforts and pose great dangers to sex workers. During the Congressional debate on FOSTA and SESTA, anti-trafficking groups such as
Freedom Network and the
International Women's Health Coalition issued statements warning that the laws would hurt efforts to aid trafficking
victims, not help them.
Even Senator Richard Blumenthal, an original cosponsor of the SESTA (the Senate bill) criticized the new Mann Act provision when it was proposed in the House bill, telling
Wired "there is no good reason to proceed with a proposal that is opposed by the very survivors it claims to
support." Nevertheless, Senator Blumenthal ultimately voted to pass FOSTA.
In support of the
preliminary injunction , we have submitted the declarations of several experts who confirm the
harmful effects FOSTA is having on sex workers, who are being driven back to far more dangerous street-based work as online classified sites disappear, to the loss of online "bad date lists" that informed sex workers of risks associated with
certain clients, to making sex less visible to law enforcement, which can no longer scour and analyze formerly public websites where sex trafficking had been advertised. For more information see the Declarations of
Dr. Alexandra Lutnick ,
Prof. Alexandra Frell Levy , and
Dr. Kimberly Mehlman-Orozco .
Human rights organisations petition the courts to block the US internet censorship law named FOSTA
||29th June 2018 |
See press release from eff.org
See also legal complaint from eff.org
article from eff.org
Two human rights organizations, a digital library, an activist for sex workers, and a certified massage therapist have filed a lawsuit asking a federal court to block enforcement of FOSTA, the new federal law that silences online speech by forcing
speakers to self-censor and requiring platforms to censor their users. The plaintiffs are represented by the Electronic Frontier Foundation (EFF), Davis, Wright Tremaine LLP, Walters Law Group, and Daphne Keller.
Freedom Foundation et al. v. United States , the plaintiffs argue that FOSTA is unconstitutional, muzzling online speech that protects and advocates for sex workers and forces well-established, general interest community forums offline for fear of
criminal charges and heavy civil liability for things their users might share.
FOSTA, or the Allow States and Victims to Fight Online Sex Trafficking Act, was passed by Congress in March. But instead of focusing on the
perpetrators of sex trafficking, FOSTA goes after online speakers, imposing harsh penalties for any website that might facilitate prostitution or contribute to sex trafficking. The vague language and multiple layers of ambiguity are driving
constitutionally protected speech off the Internet at a rapid pace.
For example, plaintiff the Woodhull Freedom Foundation works to support the health, safety, and protection of sex workers, among other things. Woodhull wanted to
publish information on its website to help sex workers understand what FOSTA meant to them. But instead, worried about liability under FOSTA, Woodhull was forced to censor its own speech and the speech of others who wanted to contribute to their blog.
Woodhull is also concerned about the impact of FOSTA on its upcoming annual summit, scheduled for next month.
FOSTA chills sexual speech and harms sex workers, said Ricci Levy, executive director Woodhull Freedom Foundation. It
makes it harder for people to take care of and protect themselves, and, as an organization working to protect people's fundamental human rights, Woodhull is deeply concerned about the damaging impact that this law will have on all people.
FOSTA calls into serious question the legality of online speech that advocates for the decriminalization of sex work, or provides health and safety information to sex workers. Human Rights Watch (HRW), an international organization
that is also a plaintiff, advocates globally for ways to protect sex workers from violence, health risks, and other human rights abuses. The group is concerned that its efforts to expose abuses against sex workers and decriminalize voluntary sex work
could be seen as facilitating prostitution, or in some way assisting sex trafficking.
HRW relies heavily on individuals spreading its reporting and advocacy through social media, said Dinah Pokempner, HRW General Counsel. We are
worried that social media platforms and websites may block the sharing of this information out of concern it could be seen as demonstrating a reckless disregard of sex trafficking activities under FOSTA. This law is the wrong approach to the scourge of
But FOSTA doesn't just impede the work of sex educators and activists. It also led to the shutdown of Craigslist's Therapeutic Services section, which has imperiled the business of a licensed massage therapist who
is another plaintiff in this case. The Internet Archive joined this lawsuit against FOSTA because the law might hinder its work of cataloging and storing 330 billion web pages from 1996 to the present.
Because of the critical
issues at stake, the lawsuit filed today asks the court to declare that FOSTA is unconstitutional, and asks that the government be permanently enjoined from enforcing the law.
FOSTA is the most comprehensive censorship of Internet
speech in America in the last 20 years, said EFF Civil Liberties Director David Greene. Despite good intentions, Congress wrote an awful and harmful law, and it must be struck down.
America's new FOSTA censorship law is proving devastatingly effective as adult consensual sex work related content has already been deleted from the US internet
||22nd April 2018 |
See article from motherboard.vice.com
SESTA/FOSTA, a bill that president Donald Trump signed into law on April 11 continues to wreak havoc on the lives of sex workers across the United States and abroad.
After getting kicked off of platforms like Craigslist and advertising forums or
pre-emptively limiting their digital footprint on social media platforms like Twitter, thousands of sex workers joined an alternative, decentralized social media platform called Switter, where they hoped to safely connect with and vet safe clients.
But on Wednesday, Assembly Four, the organization that developed Switter, announced that its content delivery network provided by the web-hosting company Cloudflare removed and blocked Switter.
At the time of writing, Switter has nearly 49,000
members and more than 376,500 posts, an explosion of activity since the service was launched in late March.
US Authorities censor backpage.com featuring small ads by sex workers advertising their services
||10th April 2018 |
See article from bbc.com
The US authorities have taken control of a classified adverts website used by sex workers to advertise their services.
A notice was posted on Backpage.com's various international front pages late last week to inform visitors.
The site had
previously shut down the adult section of its US site, but critics had alleged that prostitution ads had simply moved to other pages.
The authorities claim that some of the adverts were for trafficked sex workers, but such claims are generally
hyped up by those campaigning to prohibit adult consensual sex work and rarely amount to any more than a few cases when properly investigated.
The US media has also reported that Backpage's co-founder Michael Lacey was arrested last week and his
The Californian authorities had previously attempted to close Dallas-based Backpage.com in 2016, when the state prosecuted the business's chief executive and two ex-owners - including Mr Lacey - over claims they had committed pimping
offences and generated millions of dollars by hosting sex trade ads. However, the case was dismissed on the grounds that the US's Communications Decency Act said that publishers should not be held responsible for content created solely by their users.
But last month, Congress passed a new law, the Allow States and Victims to Fight Online Sex Trafficking Act (Fosta). It states that websites that facilitate traffickers in advertising the sale of unlawful sex acts should no longer be granted the
It has been reported that President Trump will sign a Senate-approved version of the act into law this week.
||31st March 2018 |
But it is ending up censoring everything and anything to do with sex
See article from time.com
US internet companies go into censor everything mode just in case they are held responsible for users using internet services for sex trafficking
||28th March 2018 |
See article from avn.com
See censorship rules from microsoft.com
article from denofgeek.com
The US has just passed an internet censorship bill, FOSTA, that holds internet companies responsible if users use their services to facilitate sex trafficking. It sounds a laudable aim on paper, but in reality how can say Microsoft actually prevent users
from using communication or storage services to support trafficking?
Well the answer is there is no real way to distinguish say adverts for legal sex workers from those for illegal sex workers. So the only answer for internet companies is to censor
and ban ALL communications that could possibly be related to sex.
So there have been several responses from internet companies along these lines. Small ad company Craigslist has just taken down ALL personal ads just in case sex traffickers may be
lurking there. A Craigslist spokesperson explained:
Any tool or service can be misused. We can't take such risk without jeopardizing all our other services.
Last week, several online porn performers
who use Google Drive to store and distribute their adult content files reported that the service had suddenly and without warning blocked or deleted their files, posing a threat to their income streams.
And now it seems that Microsoft is following
suit for users of its internet services in the USA. Microsoft has now banned offensive language, as well as nudity and porn, from any of its services -- which include Microsoft Office, XBox and even Skype.
The broad new ban was quietly inserted
into Microsoft's new Terms of Service agreement, which was posted on March 1 and which takes effect on May 1 . The new rules also give Microsoft the legal ability to review private user content and block or delete anything, including email, that contains
offensive content or language. The rules do not define exactly what would constitute offensive language.
In theory, the new ban could let Microsoft monitor, for example, private Skype chats, shutting down calls in which either participant is
nude or engaged in sexual conduct.
So wait a sec: I can't use Skype to have an adult video call with my girlfriend? I can't use OneDrive to back up a document that says 'fuck' in it? asked civil liberties advocate Jonathan Corbett, in a blog post
this week. If I call someone a mean name in Xbox Live, not only will they cancel my account, but also confiscate any funds I've deposited in my account?
denofgeek.com answers some of these queries:
Seemingly aware of the tentative nature of
this policy, Microsoft included a couple of disclaimers. First off, the company notes that it cannot monitor the entire Services and will make no attempt to do so. That suggests that Microsoft is not implementing live monitoring. However, it can access
stored and shared content when looking into alleged violations. This indicates that part of this policy will work off of a user report system.
Microsoft also states that it can remove or refuse to publish content for any reason and reserves the
right to block delivery of a communication across services attached to this content policy. Additionally, the punishments for breaking this code of conduct now include the forfeiture of content licenses as well as Microsoft account balances associated
with the account. That means that the company could theoretically remove games from your console or seize money in your Microsoft account.
US congress passes a supposed anti sex trafficking bill and immediately adult consensual sex workers are censored off the internet
||23rd March 2018 |
See article from eff.org
It was a dark day for the Internet.
The U.S. Senate just voted 97-2 to pass the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA, H.R. 1865), a bill that silences online speech by forcing Internet platforms to
censor their users. As lobbyists and members of Congress applaud themselves for enacting a law tackling the problem of trafficking, let's be clear: Congress just made trafficking victims less safe, not more.
The version of FOSTA
that just passed the Senate combined an earlier version of FOSTA (what we call FOSTA 2.0) with the Stop Enabling Sex Traffickers Act (SESTA, S. 1693). The history of SESTA/FOSTA -- a bad bill that turned into a worse bill and then was rushed through
votes in both houses of Congress2 -- is a story about Congress' failure to see that its good intentions can result in bad law. It's a story of Congress' failure to listen to the constituents who'd be most affected by the laws it passed. It's also the
story of some players in the tech sector choosing to settle for compromises and half-wins that will put ordinary people in danger. Silencing Internet Users Doesn't Make Us Safer
SESTA/FOSTA undermines Section 230, the most
important law protecting free speech online. Section 230 protects online platforms from liability for some types of speech by their users. Without Section 230, the Internet would look very different. It's likely that many of today's online platforms
would never have formed or received the investment they needed to grow and scale204the risk of litigation would have simply been too high. Similarly, in absence of Section 230 protections, noncommercial platforms like Wikipedia and the Internet Archive
likely wouldn't have been founded given the high level of legal risk involved with hosting third-party content.
The bill is worded so broadly that it could even be used against platform owners that don't know that their sites are being used for trafficking.
Importantly, Section 230 does not shield platforms from liability under federal
criminal law. Section 230 also doesn't shield platforms across-the-board from liability under civil law: courts have allowed civil claims against online platforms when a platform directly contributed to unlawful speech. Section 230 strikes a careful
balance between enabling the pursuit of justice and promoting free speech and innovation online: platforms can be held responsible for their own actions, and can still host user-generated content without fear of broad legal liability.
SESTA/FOSTA upends that balance, opening platforms to new criminal and civil liability at the state and federal levels for their users' sex trafficking activities. The platform liability created by new Section 230 carve outs applies
retroactively -- meaning the increased liability applies to trafficking that took place before the law passed. The Department of Justice has raised concerns about this violating the Constitution's Ex Post Facto Clause, at least for the criminal
The bill also expands existing federal criminal law to target online platforms where sex trafficking content appears. The bill is worded so broadly that it could even be used against platform owners that don't know
that their sites are being used for trafficking.
Finally, SESTA/FOSTA expands federal prostitution law to cover those who use the Internet to promote or facilitate prostitution. The Internet will become a less inclusive
place, something that hurts all of us.
And if you had glossed over a little at the legal details, perhaps a few examples of the immediate censorship impact of the new law
Immediate Chilling Effect on Adult Content
See article from xbiz.com
SESTA's passage by the U.S. Senate has had an immediate chilling effect on those working in the adult industry.
Today, stories of a fallout are being heard, with adult performers finding their content being flagged and blocked, an
escort site that has suddenly becoming not available, Craigslist shutting down its personals sections and Reddit closing down some of its communities, among other tales.
SESTA, which doesn't differentiate between sex trafficking
and consensual sex work, targets scores of adult sites that consensual sex workers use to advertise their work.
And now, before SESTA reaches President Trump's desk for his guaranteed signature, those sites are scrambling to
prevent themselves from being charged under sex trafficking laws.
It's not surprising that we're seeing an immediate chilling effect on protected speech, industry attorney Lawrence Walters told XBIZ. This was predicted as the
likely impact of the bill, as online intermediaries over-censor content in the attempt to mitigate their own risks. The damage to the First Amendment appears palpable.
Today, longtime city-by-city escort service website, CityVibe.com, completely disappeared, only to be replaced with a message, Sorry, this website is not available.
Tonight, mainstream classified site
Craigslist, which serves more than 20 billion page views per month, said that it has dropped personals listings in the U.S.
Motherboard reported today that at least six porn performers have complained that files have been
blocked without warning from Google's cloud storage service. It seems like all of our videos in Google Drive are getting flagged by some sort of automated system, adult star Lilly Stone told Motherboard. We're not even really getting notified of it, the
only way we really found out was one of our customers told us he couldn't view or download the video we sent him.
Another adult star, Avey Moon was trying to send the winner of her Chaturbate contest his prize -- a video
titled POV Blowjob -- through her Google Drive account, but it wouldn't send.
Reddit made an announcement late yesterday explaining that the site has changed its content policy, forbidding transactions for certain goods and
services that include physical sexual contact. A number of subreddits regularly used to help sex workers have been completedly banned. Those include r/Escorts , r/MaleEscorts and r/SugarDaddy .