Anti-trafficking law has unexpected consequences on sex work in Bay Area

Nicole White/File

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Editor’s note: This article uses the term “sex worker” to refer to people who provide sexual services by choice because it lacks the moral and legal implications of “prostitute.” Sex workers are different from survivors of sex trafficking who are forced into the commercial sex industry against their will by force, fraud or coercion.

Content warning: Sexual violence

When current U.S. Sen. Kamala Harris, D-California, served as the state’s attorney general, she charged the owners of Backpage.com with more than 10 counts of pimping.

Backpage.com, a classified ad website for buying and selling sex, was notorious for hosting advertisements connected to sex trafficking. According to the National Center for Missing & Exploited Children, or NCMEC, 74 percent of all the reports related to child sex trafficking that the organization received were from Backpage.com.

As attorney general, Harris made combating human trafficking a department priority. Describing Backpage.com as “the world’s top online brothel,” Harris — now a 2020 presidential candidate — tried to charge the owners of Backpage.com with pimping not once, but twice, only to have the charges dismissed both times.

Backpage.com cited Section 230 of the Communications Decency Act of 1996, which protected internet providers from being charged in relation to content on their sites.

When Congress passed the federal anti-trafficking bill package FOSTA-SESTA, which includes the Allow States and Victims to Fight Online Sex Trafficking Act and the Stop Enabling Sex Traffickers Act, in 2018, the goal was to remove this type of protection for websites like Backpage.com. FOSTA-SESTA closes the Section 230 loophole by making them liable for advertisements related to sex work or sex trafficking.

In the year since it was passed, however, FOSTA-SESTA’s effect on the Bay Area — a hub for human and sex trafficking in the United States — has not only failed to match lawmakers’ intentions but has also had other unintended negative consequences, both for law enforcement and for the sex worker community.

Cracking down on sex trafficking

In April 2018, Congress passed FOSTA-SESTA, made up of the Senate bill SESTA and its sister bill in the House, FOSTA. Both bills removed protections for websites like Backpage.com.

Specifically, FOSTA-SESTA amended Section 230 — which Backpage.com used to get Harris’ lawsuits dismissed — to allow law enforcement to charge websites for hosting advertisements related to sex trafficking and prostitution.

In addition to opening up the door to possible criminal charges, FOSTA-SESTA allowed sex trafficking survivors to seek financial restitution from websites that hosted advertisements in connection with the survivors’ sex trafficking.

The bill package initially received a wide base of bipartisan support and endorsements from anti-trafficking organizations, including NCMEC. NCMEC tweeted its support for FOSTA-SESTA, calling for an end to legal protection for “anyone who knowingly participates in trafficking children for sex online.”

Both Harris and U.S. Sen. Dianne Feinstein, D-California, released statements in support of SESTA and later, the combined bill package. Harris said in a statement that FOSTA-SESTA would close a “loophole” that protected websites associated with sex trafficking.

“For too long, traffickers have hidden behind liability protections,” Harris said in a statement. “As California Attorney General, I witnessed firsthand the difficulty of charging sex trafficking sites—even for crimes as egregious as pimping minors.”

Mere days before FOSTA-SESTA was passed, however, Backpage.com was shut down and seized as part of an unrelated “enforcement action” by the FBI, the U.S. Postal Service and several other federal and state agencies. Co-founders Michael Lacey and James Larkin will stand trial for related charges next year.

Other websites, including Craigslist and Reddit, voluntarily removed pages that might have been affected under FOSTA-SESTA after the bill package was passed, according to Vox.

FOSTA-SESTA, combined with the closure of Backpage.com, initially dropped the volume of online sex advertisements — both those associated with sex trafficking and those associated with sex work — by more than 80 percent, according to The Washington Post.

One year later, however, these initial successes have remained tenuous at best.

Law enforcement responses in the Bay Area

Several Bay Area law enforcement agencies characterized the drop in sex advertisements caused by Backpage.com’s removal as temporary.

San Jose Police Department Detective Gurbaksh Gupta described the effect as “short-lived.” After an initial dip, the numbers of advertisements are back up to where they were before, according to Gupta.

San Francisco Police Department Sgt. Inspector Antonio Flores said that while the department also initially saw a decrease in the use of sex advertising websites, other commercial sites have sprung up to replace them.

One such example is Switter, which describes itself as a “sex work-friendly social space” and not only offers its own services but also directs users looking for a “Backpage alternative” to the escort site Tryst.

Both Gupta and Flores said FOSTA-SESTA has made investigating sex trafficking cases more difficult, not less.

Flores added that some websites also use alternative payment types such as Bitcoin. He said these changes have made it “significantly harder” to investigate sex trafficking.

While SFPD had a “good working relationship with Backpage.com,” Flores said the department does not have a similar connection with the new sites. He added that because some of the new sites have their servers outside U.S. soil — where FOSTA-SESTA does not apply — SFPD has a different relationship with them.

Berkeley Police Department spokesperson Officer Byron White said that because human trafficking is less visible in Berkeley than it is in some other cities, BPD has not yet investigated a sufficient number of cases since FOSTA-SESTA was passed to determine if it affects their ability to investigate.

He added that in the past year, there’s been “less than a handful of” human trafficking cases in longer than a year.

“For us, it’s too soon to tell if it’s affecting our ability to investigate because we don’t have it as (many cases) as some other agencies,” White said.

Sex workers on the edge

FOSTA-SESTA has also faced backlash because of its effects on sex workers, whose advertisements have become liabilities for website providers under this new law.

Between 2017 and 2018, the instances of human trafficking and commercial sex acts observed by SFPD rose 170 percent for the entire city, according to SFPD data. This category comprises people who commit commercial sex acts by force, fraud or coercion or who are minors.

Mars Svec-Burdick, a campus sophomore and intern for Berkeley City Councilmember Rigel Robinson, said her research on the topic indicates that this increase is because of the way FOSTA-SESTA has forced sex workers back onto the street.

“The problem is that in its attempt to target human trafficking and the perpetrators thereof, (FOSTA-SESTA) implicates independent sex workers who are often individuals from marginalized communities,” Svec-Burdick said. “The reason behind this (increase) is because when sex workers cannot advertise online, they have to go back to the street.”

Svec-Burdick added that this decreases sex workers’ autonomy and control and puts them in more danger of being exploited and trafficked.

Former San Francisco sex worker Carol Leigh, who coined the term “sex worker” circa 1980, said FOSTA-SESTA makes sex work more dangerous because it greatly reduces sex workers’ ability to “screen” clients online.

She added that screening is crucial for safety because it allows sex workers to look up clients’ information ahead of time.

Leigh said that since FOSTA-SESTA was passed, she has heard anecdotes of increased violence against sex workers who are forced back onto the streets.

“What I’ve noticed is a community that’s up in arms and scared,” Leigh said. “I witnessed a community that’s in fear.”

Victor Ruiz-Cornejo, a spokesperson for California State Sen. Scott Wiener, D-San Francisco, said that since FOSTA-SESTA passed, Wiener’s office has also heard from community members that there has been an “uptick” in violence against sex workers, as many sex workers are afraid to come forward. Ruiz-Cornejo added that Wiener’s office has been working to address these concerns through initiatives such as California State Senate Bill 233, which was proposed earlier this year by Wiener and would protect sex workers who were witnesses or victims of a crime from being prosecuted for prostitution.

In April, the city of Berkeley adopted guidelines similar to those that would go into effect under SB 233, according to Berkeley Police Review Commission Officer Katherine Lee. These guidelines direct Berkeley police officers not to arrest sex workers for prostitution or misdemeanor drug crimes if the person is a victim or witness of a violent crime.

Describing the new policy as the “human thing to do” in that situation, White said BPD supports the new guidelines.

“For us, it’s not a new thing, it’s just putting down on paper what we’ve already been practicing,” White said. “These policies are the reflection of law enforcement best practices, in consultation with the Police Review Commission and our department executive staff.”

UC Berkeley School of Social Welfare doctoral alumna and lecturer Alix Lutnick, who wrote a book called “Domestic Minor Sex Trafficking: Beyond Victims and Villains,” also said she considers online advertisements on websites such as Backpage.com a screening technique important for sex workers’ safety.

Lutnick noted, however, that while the newer commercial sex advertisement sites could be used by some as an alternative screening method, they exclude the “more marginalized” because the new websites have a higher subscription threshold than Backpage.com and Craigslist.

Lutnick said that while she supports “recourse” for sex trafficking survivors, legislation that shuts down advertisement sites also does a lot of harm.

“This is another one of those legislation that I sort of think of as a whack-a-mole strategy,” Lutnick said. “Oh, we hit this one thing, it pops up over here.”

Alexandra Stassinopoulos covers schools and communities. Contact her at [email protected] and follow her on Twitter at @AE_Stass.