How Sex Ads Became a Battleground for the Future of the Internet

By Kate KnibbsApril 23, 2018, 10:20 am UTC • 17 min

On an April morning, President Donald Trump sat in the Oval Office, surrounded by a crowd predominantly full of women. The jubilant group had gathered to watch Trump sign legislation commonly known as FOSTA (Fight Online Sex Trafficking Act) into law. In a spring filled with conflict for Trump, the room’s overwhelmingly happy mood was notable. Even his frequent adversaries, like Senator Richard Blumenthal (D-Conn.), earnestly congratulated the president. A young woman who had survived sex trafficking, who introduced herself as “M.A.,” dabbed in celebration behind Trump. “It’s about damn time,” she told him.

The new legislation combined the House’s Fight Online Sex Trafficking Act with the Senate’s Stop Enabling Sex Trafficking Act (SESTA). It was a bipartisan smash hit, backed by a wide range of organizations, including the Internet Association, a coalition of tech companies including Google, Facebook, and Twitter. Amy Schumer and Seth Meyers made PSAs advocating for it, while Jessica Chastain narrated a documentary, I Am Jane Doe, pushing the need for the kind of reform contained in the bill. The National Center for Missing and Exploited Children (NCMEC), the national clearinghouse for reports of child abuse, which was among FOSTA’s supporters, argues that the new legislation will make it easier for victims of child sex trafficking to hold more people and organizations responsible for their plight, including the websites providing a digital space for advertisements. “The goal is to provide survivors with the opportunity to hold everyone who played a role in their victimization accountable,” NCMEC executive director Staca Shehan said.

But even before FOSTA became United States law, the government had made a major push to limit the presence of sex work online. On April 6, the federal government seized Backpage.com, a classifieds website known for two things: being a Craigslist knockoff and being popular among sex workers. The government also released a 93-count indictment against the company’s leaders, including cofounders Michael Lacey and Jim Larkin, on charges of facilitating prostitution, conspiracy, and money laundering, among others. Lacey and Larkin, along with other Backpage employees, pleaded not guilty. Carl Ferrer, the chief executive of Backpage, pleaded guilty to conspiracy and money laundering in California, and money laundering in Texas. (He was not included in the federal indictment.) The company pleaded guilty to human trafficking in Texas. A condition of Ferrer’s plea will require him to turn over Backpage’s data, and to cooperate in the prosecution of Larkin and Lacey.

These actions are the culmination of a years-long conflict between Backpage and government officials, as well as sex-work abolitionists aligned with lawmakers and antitrafficking advocates who have railed against the site’s role as a forum of choice for child sex traffickers to post advertisements. For the people fighting against Backpage, the closure of the website represents a moral victory, a blow to pimps, and a godsend for vulnerable communities. However, a wide variety of interest groups, including many people within the sex-work community, women’s rights advocates, antitrafficking organizations, and LGBT rights activists, see these actions as blows to vulnerable communities and godsends for pimps. Meanwhile, civil liberties organizations, other antitrafficking advocates, and women’s rights organizations are cautioning that the new legislation could introduce a slew of problems for people selling sexual services online, and also usher in an era of online censorship.

For years, Backpage had protected itself against various charges of criminal activity by citing Section 230 of the Communications Decency Act, an important statute that provided web services large and small — from Backpage to tech giants like Facebook and Google — from liability for third-party content on their websites. (For example: Section 230 is why, thus far, no criminal charges have been brought against Mark Zuckerberg over his company’s hosting of terrorist postings.) There were other ways to ensnare the website. A different preexisting statute, for example, was used against Rentboy, MyRedBook, and Craigslist, and that statute was eventually used to seize Backpage. But FOSTA, in its attempts to prevent websites from hosting sex trafficking content, amends Section 230, making companies liable for third-party content that was posted in the past as well as any content published in the future. It will no longer be enough for companies to quickly move to scrub offensive content; if they’ve ever hosted advertisements or posts that run afoul of FOSTA, they could be in major legal trouble for criminal activity that occurred on their platforms even before the legislation was passed. This means that, although the government hadn’t yet enacted FOSTA to ensnare Backpage, it is likely to make it much harder for the company to defend itself, because it makes companies retroactively liable for participating in the sex trade.

Senator Claire McCaskill (D-Mo.) celebrated FOSTA’s passing, as did Democratic Senator Kamala Harris, who had pursued Backpage as a cornerstone campaign during her time as California’s attorney general. “For too long, traffickers have hidden behind liability protections designed to safeguard free speech. As California Attorney General, I witnessed firsthand the difficulty of charging sex trafficking sites — even for crimes as egregious as pimping minors. That loophole must close,” stated Harris. “I recognize that there are concerns about curbing innovation and free expression online. But it is simply a false choice to suggest that we either protect victims or we protect free speech. We can and must do both.”

Senator Ron Wyden (D-Ore.) — a coauthor of Section 230 — was, along with Senator Rand Paul (R-Ky.), one of only two dissenting votes in the Senate, and he does support the action against Backpage, although he emphasized that he disapproves of the legislation. “This move was long overdue, and proves that it was the failure of federal prosecutors and law-enforcement that allowed Backpage to continue to operate, despite clear signs that it was far more than a neutral platform. The charges were filed before FOSTA went into effect, and demonstrate again how that misguided bill will do nothing to help prosecute the monsters who traffic young girls and boys, or to help rescue victims,” Wyden said in a statement to The Ringer. “FOSTA’s real purpose is making it easier to file lawsuits against online companies, while politicians pat themselves on the back. Once that misguided bill becomes law, the only difference will be that innovative startups will be buried with lawsuits, while big corporations like Facebook use their armies of lawyers to stay on top of the tech mountain.”

Wyden’s characterization of the bill as “misguided” hits at the central tension between groups in favor of punishing websites that act as hubs for sex ads and groups opposed to the crackdown. Stopping children from being held in sexual slavery is an aim that both camps wholeheartedly share. Disagreement comes from the methodology, not the end goal, even within antitrafficking communities. “I’m an antitrafficking advocate, but I’m also someone who relies upon evidence-based research,” said criminologist Kimberly Mehlman-Orozco, who wrote a book on sex trafficking in the United States. “People who think that FOSTA and SESTA are going to be used to combat sex trafficking or reduce sex trafficking, which is how the bills have been sold, that they are being misled. There’s absolutely no empirical research or theoretical evidence to suggest that it’s going to reduce it.” Mehlman-Orozco is not alone in her consternation. Plenty of people, from civil liberties groups to sex workers themselves, are arguing that this wave of government crackdowns will make the internet — and the world — a more dangerous place.

Some critics of the legislation say that it will have a disastrous effect on sex workers by stifling sex-work-related content that can keep people safe. “There was an entire elaborate web of safety and security services that Section 230 propped up, websites that would do background checks on clients, things like whitelists and blacklists, where women could check out whether a client was shady or not,” explained Baylor University professor Scott Cunningham, who studies the economics of sex work. “All of that is going to disappear. So I expect the work for the women who do remain in the market will be much more dangerous than it was before.” Cunningham noted that while the lack of online resources could push some sex workers to leave the profession, it wouldn’t do much good for those with limited economic prospects. “Some of these women don’t have outside options. They will stay in the market, and I don’t know how they’re going to find clients except for street prostitution and working with pimps.”

This is a sentiment echoed by many working in the field. “Backpage was one of the most valuable tools for sex workers,” Black Sex Worker Collective founder Ayknos told me. “It provided a space where we didn’t have to be as vulnerable as if we were doing street-based work.”

Many sex workers credit Backpage for helping them function without relying on a pimp or other form of trafficker. “I would post my phone number and try to feel these guys out in conversation, which was still better than approaching strangers,” Sarah, a woman from Michigan who has performed sex work using Backpage, told me. “There are now actual predators, pimps or wannabe pimps, contacting sex workers and saying, ‘Hey, sorry about Backpage. I can help you get some business.’ Backpage enabled sex workers like me to not have to go through someone like that. You get to be your own boss, even if you’re at the very bottom of the food chain.”

Other critics point out that Backpage had actually proved useful to combat sex trafficking by reporting incidents and providing law enforcement with an easily searchable space. “Prior to the closure of Backpage, NCMEC was quoted as saying that 73 percent of their cases come from Backpage,” Mehlman-Orozco said. (The National Center for Missing and Exploited Children confirmed that statistic to The Ringer.) “People were misinterpreting that statistic to say that Backpage is the leading cause of child sex trafficking. That’s just not true. The reason why it was so high was that it was a centralized place that was most often used by law enforcement and by antitrafficking advocates to look for potential victims and alert the authorities. It was the biggest catalyst for arrest and rescue.”

Backpage was one of the most valuable tools for sex workers. It provided a space where we didn’t have to be as vulnerable as if we were doing street-based work.
Ayknos, founder of the Black Sex Worker Collective

“I do not see an upside to the passage of FOSTA-SESTA, and there is no reason to believe this will reduce the number of children being sex-trafficked,” said Alexandra Levy, a Notre Dame law professor. “What we do have reason to believe is that it will reduce the number of reports of sex trafficking — which isn’t at all the same as actually addressing the problem. We’re just cutting off pathways to reach victims, who are now likely to be exploited in darker corners of the internet or on the street.”

For advocates of FOSTA and Backpage’s closing, the idea of allowing websites that are known hubs for sex trafficking to remain up is unthinkable, full stop, even if they helped law enforcement catch traffickers. “Leaving a place where you know child sex trafficking is rampant up and active just because you’d have a place to look for it is insane. It’s allowing a criminal enterprise to exist so that you can say you have somewhere to look for it,” the NCMEC’s Staca Shehan told me. (Shehan noted that her organization is focused on sex trafficking of children, and that she was not immediately concerned with adult sex work.)

But in allowing a new way to penalize internet services for allowing content about sex work, FOSTA ends up flattening the crucial distinction between child sex slavery — which nobody wants — and a wide, varied spectrum of monetized sexual behavior, from full-service sex work to kink-related money exchanges. “Sex workers agree that sex trafficking is wrong,” Sex Workers Outreach Project Behind Bars has clarified. “Fears over human trafficking and child abuse should not be dismissed lightly. But laws against both already exist and should be strictly enforced.” While many activists oppose the criminalization of consensual sex work in general, they are also quick to emphasize that they believe FOSTA will end up hurting sex-trafficked children as well as turning adult sex workers into collateral damage.

Leaving a place where you know child sex trafficking is rampant up and active just because you’d have a place to look for it is insane.
Staca Shehan, executive director of the National Center for Missing and Exploited Children

“It’s very unclear how Backpage shutting down will help current trafficking victims, many of which will now be forced to work on the streets. We’ve tried to educate abolitionists about this in the past, but they still seem to stick to the dubious idea that shutting down a prominent market will actually shut down the sex trade — consensual or not,” sex worker and sex work advocate Liara Roux said. “The reality is both consensual sex workers and trafficking survivors are safer when they are able to avoid dangerous clients, and being able to get basic information on first contact and tell if a client can follow basic instructions is essential to weeding out bad dates.”

Freedom Network USA, a large nonprofit focused on aiding survivors of human trafficking, has also cautioned that FOSTA may end up harming people who are trafficked more than it helps. “We urge Congress to focus on addressing these gaps instead of misguided legal reforms which will not benefit victims or increase punishment of traffickers,” the organization wrote in a statement attempting to warn lawmakers away from passing the bill.

There is concern that the shutdown of channels of communication about sexuality is likely to disproportionately affect people whose sexual practices have been historically marginalized. “What we’ve seen in the past, anytime platforms are trying to censor sex-related content, or material that has too much to do with sexuality, the burden often falls squarely on the LGBT community,” said Emma Llansó, director of the Free Expression Project at the Center for Democracy & Technology. “I think there’s a big risk that filtering for sex and sexuality-related materials in an effort to keep posts offering transactions for commercial sex off of a site is going to suppress discussion about sex-related topics in general, whether that’s adult entertainment or health or wellness questions, or, even, advice for people that engage in commercial sex on how to stay safe and how to protect themselves.”

“People are panicking,” Ayknos said. “I’m hearing a lot of sex workers saying that we’re going to get killed.”

Panic is spreading far beyond the sex-work community. FOSTA is the first time that Congress has amended Section 230 since it was signed into law in 1996, and the change has left many civil liberties groups uneasy about how the new limitations will change online speech. “In a very real sense, we don’t really know what the internet looks like here in the U.S. with an amended Section 230,” Llansó told me. “The sites, the services, and applications that we use today came about in large part because of the strong protections from liability that Section 230 provided for all kinds of intermediaries. This really is a fundamental change to the legal framework that we have.”

Since its inception, Section 230 has offered websites protection from prosecution for content on their platforms created by third parties. It included a “Good Samaritan” clause, which means that even if these websites do an insufficient job of moderating content, they will not be held responsible for failing to fully sweep criminal content.

Section 230 protected websites from being held responsible for the behavior of their users, but it did not give websites an impenetrable shield against the law if they had directly engaged in criminal activity. This is why, for instance, during the case brought against the website Silk Road, which was used as a drug-dealing forum, Section 230 did not insulate its founder, Ross Ulbricht, from prosecution, nor did it impede a federal shutdown of the site. As with Silk Road, the indictment against Backpage alleges that the website was directly involved in crimes, not just the site of them, and thus not immune.

Since FOSTA will allow people an easier route to bringing legal action against websites for hosting illegal content, Llansó emphasized that FOSTA could pressure website operators of all kinds, from classifieds sites to big platforms like Facebook and Twitter, to change their approaches to moderation in an effort to avoid trouble. “Some platforms will probably look at that scenario and think they should do less moderation in general,” she explained, noting that the companies would have an easier time claiming they did not have knowledge of unlawful material if they took a hands-off approach. “Other intermediaries will probably do things that look a lot like what we’ve seen already from sites like Craigslist and Reddit, shutting down entire platforms and forums and sections of their website, because they’re concerned about the kind of speech that might get posted there. The answer will probably be fairly broad efforts to censor, you know, rather than face that legal risk.”

The legal risk is now intense for website operators. “Section 230 provided nearly complete civil immunity to any company whenever a third party posted material on their website. Without that, and now facing criminal charges of 10 to 25 years for knowingly facilitating prostitution or sex trafficking, people are going to be actively getting material off their websites,” explained Cunningham, the Baylor professor. “You’re already hearing stories of Google deleting stuff from Google Drive, and watching companies right and left just disappear.”

Cunningham was referring to reports from sex workers that Google had already begun to scrape its services of sexually explicit material. As Motherboard reported in March, sex workers have been startled to find material they kept on Google Drive suddenly inaccessible. Google’s terms of service have already prohibited the sharing of “sexually explicit or pornographic” content on Drive, which means that anyone sharing consensual nude pictures — i.e., sexting — through the service is technically breaking the rules. “If a file is flagged, it is not deleted by our systems; it remains accessible by the original owner to download, but it is un-shared (i.e., users with whom the file was shared will no longer see it in their Drive) and video playback is disabled. The owner also has the option to appeal,” a Google spokesperson told The Ringer when asked about the incidents, noting that its terms of service has always prohibited making sexually explicit materials publicly accessible.

Section 230 provided nearly complete civil immunity to any company whenever a third party posted material on their website. Without that … people are going to be actively getting material off their websites.
Baylor University professor Scott Cunningham

Microsoft, meanwhile, released a new code of conduct in March, effective May 1, that prohibits sharing any inappropriate content, including “offensive language” and nudity. (The company insists that the change in code is not related to FOSTA; it did not respond to Ringer questions about whether it would enforce these rules for people who used Skype while nude.)

Other websites have already changed or ceased operations after the passage of FOSTA. Craigslist shuttered its popular and long-running personals service, citing the law. “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 someday,” Craigslist said in a statement. The Erotic Review, a website hosting customer reviews of sex workers, preemptively blocked access to people within the United States, citing the new legislation.

Some popular hubs for sex work have temporarily moved to social media. Facebook officially prohibits sex work, but that doesn’t mean that advertisements are absent from the site. One website, USA Sex Guide, has preemptively suspended its advertisements until it can find an overseas server. In the days after the passage of FOSTA, it temporarily redirected users to a private Facebook group disguised as a car enthusiast’s platform.

FOSTA could splinter sex-focused advertisements onto smaller services, as well as those located outside the United States. In response to the closures, some activists are looking for new venues for sex workers to communicate and organize online. Assembly Four, an online collective, created a new social network called Switter to facilitate a place for sex workers to talk in the face of the crackdown. “We’ve grown to over 46,000 users in three weeks,” Lola Hunt told me by email — but one day later, Switter was banned from its service provider at the time, Cloudflare, for violating its terms of service. Cloudflare’s general counsel told Motherboard the company had taken action in an attempt to comply with FOSTA, calling it “a very bad law.” (Switter has changed providers and is still in service.)

But even in the short amount of time that has passed since Backpage was shuttered and FOSTA enacted, it is fairly simple to locate replacements online. Sites like OneBackPage and BackPage(ly) sprang up almost immediately, complete with FOSTA notifications stressing that they do not moderate their content in any way as a means of shielding themselves from “knowingly” facilitating sex trafficking. This new crop of sites is likely to be even less helpful than Backpage was to law enforcement, as they will be more incentivized to move to international locations, where they do not have to answer subpoenas.

While FOSTA was pitched with a very specific (and noble) goal in mind, and its immediate effect thus far has been to scare the sex-work community, it could end up significantly altering how the internet works on a grand scale. As Wyden noted, FOSTA will make it far easier to bring lawsuits against technology companies for content posted by third parties. The legislation will create ample opportunities for people frustrated with web platforms to pursue legal action. It is surprising, then, that Facebook supported FOSTA, seeing as it is currently the most heavily criticized for the content is has allowed to thrive on its platforms, Russian-sponsored propaganda to hate-inciting posts in Myanmar that officials from the United Nations have identified as playing a role in genocide. Perhaps the company believes it has sufficient resources to survive any number of lawsuits related to sexual content, or it believed the PR would be too bad to oppose an antitrafficking bill. (Facebook did not respond to The Ringer’s request for comment.) But, as Cunningham noted, the repercussions should be cause for alarm, even for tech giants and their executives. “The penalties are enormous. Ten to 25 years for knowingly facilitating sex trafficking,” Cunningham said. “What if a victim of sex trafficking says that she was trafficked on Facebook? And the law under FOSTA would hold Facebook accountable. If anything, their size makes them a bigger target.”

Both FOSTA and the seizure of Backpage suggest that the government has finally decided that its approach to policing the internet is in need of an overhaul. Although they appear unrelated to the recent congressional inquiry into Facebook’s data-sharing practices, all of these events are part of a backlash against how digital life shapes how the country operates, and they are likely to recalibrate how the country operates, by pushing back against the internet’s influence. Just as advertisements for sexual services once grew out of the publishing industry’s need to keep itself afloat, this new charge against sexual advertisements online will have ripple effects that extend from the tawdry into the everyday. “Part of the problem with this law is that it’s so vague that no one knows how exactly it will be applied — and whether it might implicate them. Uncertainty does a lot of work toward chilling speech, and that’s what we’re seeing here,” Levy said.

One end result of FOSTA could be a substantial limitation of Facebook’s power, as it provides an avenue for prosecutors to hold the company responsible for the vast amount of content shared on its platform. Perhaps it will inadvertently usher in an era of more regulated digital players. But it will also very likely cause real harm to marginalized communities, and create as many problems as it solves.

An earlier version of this piece misstated that Cloudfare shut down Switter; in fact, Cloudfare simply banned Switter from its service. Switter has changed providers and is still in operation.

Kate Knibbs

How Sex Ads Became a Battleground for the Future of the Internet

How Sex Ads Became a Battleground for the Future of the Internet

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