What do the internet and 19th-century sex work have in common? Answer: an untraced history of criminalization in the sex industry that has now resulted in the censorship of online sexually graphic content.
Under the Stop Enabling Sex Traffickers Act, or SESTA, which was signed into law just last year, website publishers are held liable for sex trafficking content on their browsers, platforms, forums, channels and media outlets. This government regulation encourages publishers to screen, filter and monitor the content that passes through their data engines so that they are not prosecuted for allowing any sex-trafficking-related activity on their sites. Many of the issues with this law lie in its drawing of exaggerated connections between what is sex exploitation versus simply what is sexual content.
The negative repercussions of this act as this anti-sex-trafficking legislation have encroached upon other areas of the internet that harbor sexually charged media and sex-related content. It is for this reason that researchers at UC Berkeley, such as professor Juana María Rodríguez, have begun to investigate the history of sex work regulation so as to better inform our lawmaking decisions on these topics.
Rodríguez, who teaches in the departments of ethnic studies and lesbian, gay, bisexual, and transgender studies, recently traveled to Mexico to conduct archival work on the visual representations of Latinx sex workers during a moment of sex work regulation.
Many of the issues with this law lie in its drawing of exaggerated connections between what is sex exploitation versus simply what is sexual content.
Reviewing sepia-toned archived photographs of sex workers in the 1800s, along with accompanying captions and text, Rodríguez recorded the visual conventions — posture, attitude, costumery, tone, composition — that the public registrar and media outlets used to portray these persons. When people traditionally think of sex workers, Rodríguez adds, they might imagine young women, but this stereotype is rather superficial and inauthentic — many of the images she examined in her work depicted septuagenarian nude individuals.
With this archival image and text comparative analysis, Rodríguez hopes to retrace the history of sex work regulation and extend this analysis to the contemporary/modern moment of sex work regulation such as with SESTA and the Fight Online Sex Trafficking Act, or FOSTA. SESTA and FOSTA were passed in 2018 to revise section 230 of the Communications Decency Act. It was out of this act that we have seen the federal seizure of sex sites such as Backpage.com and even censorship of content on more popular media sites such as Tumblr, Instagram, Reddit, WordPress and Craigslist. Because this legislation holds these online providers accountable for the content that their users share on their platforms, these providers now have an incentive to censor content, screen user activity and monitor conversations on online forums.
While this act was created to protect sexually trafficked persons, Rodríguez argues that the opposite is more true. Revisiting the history and the international dialogue around this subject among the World Health Organization, Amnesty International and the Human Rights Watch would suggest that the criminalization of sex work does more harm than good.
“If sex work was legal, then underage sex work would be a lot easier to combat because it wouldn’t be illegal. What would be illegal would be young people working it. Just like you would have to be a certain age to work at McDonalds, you would have to be a certain age to be a sex worker.” Rodríguez said.
In essence — the sex work industry would exist regardless, but to deny its presence altogether would sacrifice the protection and health of sex workers.
Rather than criminalizing all sex work under this act, a more historically informed decision might seek to legalize sex work and provide more specific guidelines to protect children from entering this industry.
Another harmful aspect of the criminalization of sex work is that it is now becoming common practice to allow the public to become an extension of law enforcement — individuals feel compelled to report those they view as engaging in sex work, though their reasoning is often based on bias alone.
…the sex work industry would exist regardless, but to deny its presence altogether would sacrifice the protection and health of sex workers.
“Very often now you’re seeing signs in hotels, hospitals that say, ‘See something, say something,’ ” Rodríguez explained, “Now there’s this extra system of surveillance. Why? Because she’s wearing high heels? Because she’s wearing a lot of makeup? Because she’s racially marked in particular ways that get associated with sex work? So now this anti-trafficking work kind of becomes this anti-immigrant increased surveillance.”
This moment of increased public policing now ripens the opportunity for racial profiling, sexual harassment, blackmailing legally vulnerable individuals and other forms of mistreatment, to the detriment of sex workers. Because sex work will inevitably always exist, it is important that we enact proper legislation to prevent these persons from enacting potential harm onto themselves.
Overall, this criminalization of sex work prevents workers from “creating online support communities for themselves, using online platforms to screen clients, to be more in control of their own labor,” Rodríguez explained. So by silencing communication between sex workers online, their ability to assist, advise or offer protection for others in their industry is effectively erased.
Many of these dangers to the sex work community arises out of assumptions about sex work itself — that it is always coerced, nonconsensual, degrading and abusive. The assumption that the sex worker is an eternal victim makes these cases more difficult to treat, as the resulting legislation is rife with this inherent bias.
As Rodríguez examines the intersectionality of race, ethnicity, sexuality and nationality with her work, many of these aforementioned connections between sex work, immigration and politics become much more visible.
One of the more frightening aspects of this law that goes unnoticed is that SESTA and FOSTA enable internet censorship beyond sexual trafficking. Because the definitions of sex and sex work are vague within this piece of enacted legislation, internet providers are able to censor and suppress content beyond what the authors of this act may have intended.
“It’s a dangerous moment in internet — done in the name of protecting people…” — Juana María Rodríguez
“In my last book, I was writing about a performance artist, and a lot of her performance art is very sexual, really charged. … But she had her portfolio up on WordPress, and huge chunks of her portfolio that document her artistic practice are now being censored. So from censoring artists to censoring performers to censoring academics. It’s a dangerous moment in internet — done in the name of protecting people,” Rodríguez said.
It begs the question: We are sacrificing the democracy of the internet for an insubstantial guise of protection — at what cost?
Nearly all forms of labor are monetized, capitalized and exchanged for profit, and sex work is no special case. Sex work, as Rodríguez notes in her research, has always been placed under undue scrutiny as a criminal labor sector. The stereotypical images that we conflate with sex work and our assumptions of what this work looks like create grounds for sexual harassment and racial profiling of sex workers today. It is for these reasons that Rodríguez is evaluating how society at large views sex work — so that our modern treatment of these issues may be more informed.
Although this humanities research project might read to many as a niche project in a small ethnic studies department, its cultural, political and technological implications loom large. While this research might not always make the headlines, its placement in dailies does not deny its significance.
Let not this history be unwritten — or repeated.