Human Trafficking: Unintended Consequences of FOSTA

 We recently wrote about the new anti-trafficking law, FOSTA, on our blog and for a peer-reviewed journal, MAJ’s Trial Reporter. In short, the new law strives to make it easier to hold websites and other Internet-related entities responsible for their role in sex trafficking. We noted that one of the downsides to the Act that became law in 2018 is that it pushes this activity into the shadows.

Deviance is a departure from common or accepted standards. Each community develops methods of controlling deviance. A concept in the study of deviance and social control is push-down, pop-up. This is commonly described in the illicit drug context; you shut down one corner, another pops up. Basically, as you eliminate one method of deviance, it pushes up or increases another one. This is because you have not eliminated the root cause of the deviance; people continue participating in the activity, they just find a different way to do so.

That is precisely what people fear to happen as a result of FOSTA. Now that websites like Backpage.com have gone away, traffickers are employing different methods. Backpage.com took some prostitution off the streets, and it gave investigators and private attorneys like us digital evidence to use. Police also used it as a tool to trap traffickers.

“‘We used to look at Backpage as a trap for human traffickers and pimps,’ explained undercover vice investigator John Daggy to RTV6. ‘We would subpoena the ads and it would tell a lot of the story. Now, since it has gone down, we’re getting late reports of them and we don’t have much to go by.’” It has been reported that with Backpage gone, leads have dried up. Women are back on the streets, and more dependent on “pimps.” That’s dangerous for all involved.

For this and other reasons, the Electronic Frontier Foundation (“EFF”) recently brought a lawsuit to challenge the law. The organization believes it is unconstitutional and seeks to prevent it from being enforced. It claims, “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 its 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.”

There are several issues. Non-sexual business have been unable to advertise and market as they once could because the law has pushed down many websites. Here are two others: “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.”

For these and many other reasons, EFF asked the Court to enjoin the law – to stop it from going into effect. EFF’s Motion for Preliminary Injunction was filed in federal court in the District of Columbia. It’s an eye-opening read.

Throughout history, well-intended policymakers have enacted laws and various methods of controlling deviance. Time and time again, we see unintended consequences that harm those the law was intended to protect, in addition to other adverse effects. It’s a difficult balance and must be an iterative process of tinkering to get it right.

We appreciated FOSTA because it provides a tool for us as civil attorneys to use in helping survivors obtain justice; however, there are serious downsides to it as well.

Until we address the underlying root causes of this conduct, the widespread addiction, trauma, economic, and cultural issues giving rise to it, human trafficking will persist. And we at KBA Attorneyswill be here to help survivors find justice in the civil justice system.