SESTA/FOSTA Examination of Secondary Effects for Sex Workers Study Act

People who engage in consensual, transactional sex utilize online platforms to protect their health, safety, and independence. This use includes building community connections, distribution of harm reduction information and techniques, identification and screening of potential clients, and negotiating the terms of consensual, transactional sex services, including condom use and other harm reduction strategies.

Widespread discrimination against populations, including LGBTQI+ individuals, particularly transgender women of color, prevents many from accessing formal employment resources and educational opportunities.

In the 2015 United States Transgender Survey conducted by the National Center for Transgender Equality, 19 percent of respondents reported having exchanged sex for resources, such as for money, food, or a place to sleep. Transgender women of color, including Black (42 percent), American Indian (28 percent), multiracial (27 percent), Latina (23 percent), and Asian (22 percent) respondents were more likely to have participated in sex work than the overall sample.

In the 2015 United States Transgender Survey, respondents who experienced homelessness in the past year (17 percent) were more than three times as likely to have participated in sex work during that year compared to the overall sample.

On a broader scale, internet platforms foster connections between people and play an integral part in American society. Meaningful regulation of internet platforms must take into account the role they play in the health, safety, and privacy of all people’s lives.

While policymakers, representatives of internet platforms, and some advocates have discussed ways to mitigate the use of internet platforms to decrease exploitation, people who consensually trade sex are rarely involved in the drafting of legislation or policies, or in assessing their impact, despite being amongst the populations who are impacted by legislation and policies related to the regulation of these internet platforms.

On February 27, 2018, the House of Representatives passed the Allow States to Fight Online Sex Trafficking Act, known as SESTA/FOSTA. While SESTA/FOSTA holds websites liable for user-generated content that facilitates sex trafficking, it also impacts online platforms where users discuss consensual sex work and related topics.

Contemporaneously with the passage of SESTA/FOSTA in the Senate on March 21, 2018, websites preemptively shut down, some directly citing the law’s passage as the rationale for closure.

One week before President Donald Trump signed SESTA/FOSTA into law (Public Law 115–164), the Department of Justice seized Back­page.com and arrested Backpage employees, citing promotion of prostitution and money laundering charges, similar to the Department of Homeland Security’s seizure of Rentboy.com only a few years prior.

While these websites and individual accounts have been closing down, there has been no national investigation rigorously examining the impact of losing access to these platforms on the health and safety of people in consensual, transactional sex work. Regional and anecdotal information from health and safety service providers and sex workers has pointed to significant impacts on the health and safety of people who engage in consensual, transactional sex.

Community organizations have reported increased homelessness of sex workers, including of sex workers who are caretakers for their families and have lost the economic stability provided by access to online platforms.

Sex workers have reported a reduced ability to screen potential clients for safety, and negotiate for boundaries such as condom use, resulting in reports of physical and sexual violence.

Many sex workers have turned to street-based work, which has historically involved higher rates of violence than other forms of transactional sex. Street-based sex workers have frequently noted practices which harm their health and safety, such as the confiscation of condoms by police, or use of condoms as evidence of arrest for prostitution.

With this new level of precarity, isolation, and vulnerability, there is substantial anecdotal evidence that members of the sex work community are more frequently being contacted by third parties seeking to engage in management activities. This includes both sex workers who had always worked independently, as well as those who have previously experienced violence and exploitation by a third party.

The United States Government has long discussed the importance of assessing collateral consequences when looking at other industries. A comprehensive study is essential to evaluate the impact on the health and safety of those involved in consensual, transactional sex, who are increasingly losing access to digital platforms, which have been used for harm reduction information and techniques, and to screen clients. Informed government policies begin with seeking out relevant information to better guide our actions moving forward.

Study— The Secretary of Health and Human Services (in this section referred to as the “Secretary”) in consultation as appropriate with the Director of the Centers for Disease Control and Prevention, the Director of the National Institutes of Health, and the Assistant Secretary for Mental Health and Substance Use shall study the impacts on the health and safety of people engaged in transactional sex resulting from the loss of access to interactive computer services (as defined in section 230(f) of the Communications Act of 1934 (47 U.S.C. 230(f))) in connection with the closure of websites (including Backpage.com) that host information related to consensual sexual exchange, on or after February 27, 2018, in anticipation of, or in response to, the enactment of the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (Public Law 115–164).

Interviews and surveys— The study under subsection (a) shall include interviews with, and surveys conducted by, nonprofit and community-based organizations that provide direct services to people engaged in transactional sex.

Topics— The study under subsection (a) shall include assessment of the following impacts on people engaged in transactional sex:

Report— Not later than one year after the date of enactment of this Act, the Secretary shall submit to the Congress a report on the results of the study under subsection (a) and make such report available to the public.