Is FOSTA Preventing Sex Trafficking or Unconstitutionally Censoring Communication?

Camryn Davis*

Background 

As sex trafficking exponentially rose with use of the internet and digital communication, so did public pressure on United States officials to tackle the problem.¹ In 2018, Congress enacted the Allow States and Victims to Fight Online Sex Trafficking Act (commonly referred to as “FOSTA”)² with strong bipartisan support.³ While FOSTA was well-intentioned to combat a glaringly dangerous problem through prosecution of global online trafficking websites, advocates for internet free speech and sex workers have mixed reviews on the effectiveness of the Act’s means to reach its goals.⁴ 

FOSTA was designed in the wake of online sex trafficking to shut down websites, including Backpage.com, and prevent the facilitation of sex trafficking with reckless disregard.⁵ Backpage, the internet’s leading forum for prostitution advertisements, generated profit through a wide variety of overt and stealthier advertisements facilitating prostitution.⁶ FOSTA creates both criminal and civil liability in the event that a person or person representing an entity is either engaging in one of ten trafficking activities (harboring, transporting, recruiting, etc.) or benefitting financially from participation in a trafficking venture.⁷

Implications of FOSTA

Despite FOSTA’s momentum to seize websites and prosecute traffickers, the Act has not appeared to have decreased sex trafficking.⁸ Though the government claims FOSTA has helped to decrease sex trafficking advertisements by ninety percent, another analysis found ads had only decreased by twenty-five percent four months following FOSTA’s passage.⁹ Moreover, Backpage was shut down even before FOSTA was passed.¹⁰ Concerningly, some sex workers report feeling even more unsafe since infrastructures such as Backpage no longer exist.¹¹ Websites known to the sex worker community were not only business platforms but also sources of information to avoid dangerous clients, find community, and build agency to gradually escape from exploitive control and reliance upon “pimps” or “johns.”¹² However, there is a dark side to these community platforms as well.¹³ Many websites such as Backpage were also infiltrated with sex traffickers who posted advertisements of people online without their consent, exploiting mainly women and minors.¹⁴ These victims were also disproportionately Black, brown, Indigenous, socioeconomically disadvantaged, and part of the LGBTQIA+ community, including transgender persons, who are already at an increased risk for violence.¹⁵ Essentially, for many, these platforms streamlined and perpetuated the captivity, abuse, rape, and even murder of trafficking victims.¹⁶

Knowing the immense dangers of sex trafficking, the downsides to shutting down websites like Backpage in accordance with FOSTA may feel miniscule. However, that reality is still very personal to some: the new legislation has shut down multitudes of adult services websites (e.g., dating apps, discussion forums, and even media sites such as platforms within Google Drive and Craigslist personals), which has correlated to higher numbers of sex workers uprooting their normal practice to solicit sex in the street.¹⁷ This leads many to feel distressed about supporting their finances and safeguarding their physical and mental well-being.¹⁸

Clarification Rather Than Change of the Law

The most recent debate about the constitutionality of FOSTA is in Woodhull Freedom Foundation, et al. v. United States.¹⁹ The plaintiffs in this case (two human rights nonprofit organizations, a licensed massage therapist, an advocate for sex workers, and an internet preservation nonprofit) lost their appeal in the D.C. Circuit that FOSTA violated their First and Fifth Amendment rights.²⁰ First, the plaintiffs argued that the language used in FOSTA and its amendments suppresses certain kinds of speech, including speech which advocates for the decriminalization of sex work.²¹ Second, the plaintiffs argued the language in the statute is undefined, overly broad, and unconstitutionally vague.²² Ultimately, though the court found the plaintiff’s constitutionality arguments were not supported by law, the case illuminated that some language in the statute should be interpreted narrowly to still afford protection to two main groups of people: sex workers themselves using online services for personal work and speakers educating about, discussing, and advocating for sex work.²³ Moreover, in Twitter Inc., v. Taamneh, the court narrowed the definition of civil aiding and abetting to only apply to intermediaries when they assist in “specific wrongful acts”²⁴—noting that general awareness of an illegal scheme is not enough to make a third party liable on prosecution charges.²⁵ There is bound to be continued legislation on FOSTA and related law in the next several months as the internet, free speech, sex trafficking, and sex work all remain hot button issues.

Final Thoughts

FOSTA, though sometimes controversial, opened a necessary dialogue surrounding sex trafficking. One survivor of sex trafficking, Melanie Thompson, supports FOSTA and its fight against much of the sex trade, which she describes as “an oppressive system that thrives off of other oppressive systems, namely misogyny, patriarchy and capitalism.”²⁶ Thompson views FOSTA as a chance for “retrospective accountability” for Backpage, which played a significant role in the abuse she suffered and continues to suffer through trauma.²⁷ Thompson’s story highlights the need for prosecution of individuals facilitating sex trafficking through online platforms. Yet, it is still important to recognize advocacy groups’ and sex workers’ rights moving forward. FOSTA’s unclear language itself exacerbates the issue of a lack of linguistic distinction between victims of sex trafficking and autonomous sex workers used in legislation and policy.²⁸ Moreover, as we have seen in history, suppression of ideas and voices oftentimes has dangerous and frightening results. Therefore, like most enacted public safety law, the statutory language and effects of FOSTA should be revisited often to maintain necessary revisions and strengthen Congress’s intended outcome of intercepting sex trafficking.

1. Kendra Albert et al., FOSTA in Legal Context, 52 Colum. Hum. Rts. L. Rev. 1084, 1088 (2021). ↩︎
2. Allow States and Victims to Fight Online Sex Trafficking Act of 2017, Pub. L. No. 115-164, 132 Stat. 1253 (2018) (codified as amended at 18 U.S.C. §§ 1591(e), 1595, 2421A and 47 U.S.C. § 230(e)(5)). ↩︎
3. Caitlyn Buckman, When the Exception Swallows the Rule: The Chilling Effects of FOSTA, Syracuse L. Rev. (May 3, 2018), https://lawreview.syr.edu/when-the-exception-swallows-the-rule-the-chilling-effects-of-fosta/. ↩︎
4. See Albert et al., supra note 1, at 1088. ↩︎
5.  Cassondra Murphy, Beyond Backpage.com: SESTA/FOSTA Becomes Law, Hum. Trafficking Inst. (Apr. 12, 2018), https://traffickinginstitute.org/beyond-backpage-com-sesta-fosta-becomes-law/. 
   ↩︎
6. Press Release, U.S. Dep’t of Just., Justice Department Leads Effort to Seize Backpage.Com, the Internet’s Leading Forum for Prostitution Ads, and Obtains 93-Count Federal Indictment (Apr. 9, 2018), https://www.justice.gov/opa/pr/justice-department-leads-effort-seize-backpagecom-internet-s-leading-forum-prostitution-ads. 
   ↩︎
7. Albert et al., supra note 1, at 1116. ↩︎
8. See Liz Tung, FOSTA-SESTA Was Supposed to Thwart Sex Trafficking. Instead, It’s Sparked a Movement, WHYY (July 10, 2020) https://whyy.org/segments/fosta-sesta-was-supposed-to-thwart-sex-trafficking-instead-its-sparked-a-movement/. ↩︎
9. Id. ↩︎
10. Mike Masnick, Politicians Who Said SESTA Was Needed To Takedown Backpage Claim Victory Over Backpage Takedown… Without SESTA, Techdirt (Apr. 9, 2018, 6:30 AM), https://www.techdirt.com/2018/04/09/politicians-who-said-sesta-was-needed-to-takedown-backpage-claim-victory-over-backpage-takedown-without-sesta/. ↩︎
11. Tung, supra note 8. ↩︎
12. Id. ↩︎
13. See id. ↩︎
14. Albert et al., supra note 1, at 1098. ↩︎
15. See Albert et al., supra note 1, at 1090. ↩︎
16. See Tung, supra note 8. ↩︎
17. See Tung, supra note 8. ↩︎
18. Tung, supra note 8. ↩︎
19. Woodhull Freedom Found. v. U.S., 72 F.4th 1286, 1295 (D.C. Cir. 2023). ↩︎
20. Id. at 1292. ↩︎
21. Woodhull Freedom Foundation et al. v. United States, Elec. Frontier Found., https://www.eff.org/cases/woodhull-freedom-foundation-et-al-v-united-states (last visited Feb. 22, 2024). ↩︎
22. Id. ↩︎
23. David Greene, DC Circuit FOSTA Ruling Lets a Bad Law Stay on the Books,But Offers Meaningful Protection for Some Sex Work Forums and Sex Workers Using Online Services, Elec. Frontier Found. (July 22, 2023), https://www.eff.org/deeplinks/2023/07/dc-circuit-fosta-ruling-lets-bad-law-stay-books-offers-meaningful-protection-some. ↩︎
24. Twitter, Inc. v. Taamneh, 598 U.S. 471, 494 (2023). ↩︎
25. Id. at 504. ↩︎
26. Tung, supra note 8. ↩︎
27. Tung, supra note 8. ↩︎
28. See Tung, supra note 8. ↩︎