SESTA/FOSTA: A Call To ISPs Or A Threat To Freedom?

The internet has long been characterized as the outer limit of free speech, a space where anything is both possible and permissible. But is that level of freedom actually desirable? Under the new federal legislation known as SESTA/FOSTA, the United States is about to find out.

Also known as the “Allow States and Victims to Fight Online Sex Trafficking Act of 2017,” SESTA/FOSTA aims to close a gap in the Communications Decency Act of 1996 by making it a crime for internet providers, websites, or other computer services to aid in the prostitution of any person. Though this sounds like an obvious action, like something that should have been illegal all along, there is a surprising amount of resistance to the law. From sex workers to educators, many see this law as a threat to their safety and freedom – and they’re determined to fight back.

Our Changing Internet

In order to understand why legislators think SESTA/FOSTA is necessary, it’s important to look at how the internet has changed in recent years. For example, the rise of the Dark Web and encrypted payment practices like cryptocurrency have made it much easier for individuals to take part in illicit activities online.

Even “mainstream” sites like Pornhub are accepting Bitcoin, bringing historically secretive methods into the fore. Simply put, the more comfortable users are with digital interactions, the more harmful activities suddenly appear front and center.

Of course, the leading reason legislators pushed through SESTA/FOSTA is as a tool against sex trafficking, particularly of minors. This reason, though, may not be as straightforward as it seems. Talk to anyone employed independently as a sex worker, and they’ll tell you the law is a direct attack on work viewed by many as immoral. These individuals, many of whom are impoverished women or members of the LGBTQ community, say that shutdowns caused by SESTA/FOSTA have left them vulnerable to abuse by pimps and have made it impossible for them to work safely and without exploitation.

Rethinking Digital Safety

All of this raises the question: is SESTA/FOSTA actually making the internet a safer place? In all likelihood, the law is just driving illegal activities further underground. What we’ve seen in other countries is that rather than trying to regulate harmful activities out of existence, which may be fundamentally impossible, providing better legal guidelines can help make everyone safer.

Canada offers a prime example of this logic. In late 2013, the Canadian Supreme Court decriminalized sex work. Acknowledging that the state was attempting to ban consensual activity between adults, the court thereby made it possible for individual areas to regulate sex work as they see fit. The results were remarkable. In particular, Vancouver, which modified its local sex work policing guidelines in 2008, saw a full decade with no sex worker murders. Prior to the changes, when those in the sex trade were pushed into the shadows, this would have been unheard of.

Meanwhile, in the United States, the impact of SESTA/FOSTA is already being felt. One surprising target – sex ed websites. Prior to SESTA/FOSTA, some educational sites spoke openly about sex work in their discussions of consent, particularly since some of the educators were also sex workers. Now, the sites are afraid to continue with business as usual. They worry they won’t be able to foster a sex-positive consent culture under the new legislation.

Digital infrastructure services like cloud providers are also reacting strongly to the law. Under the 1996 law, service providers that shared user-generated content were immune from prosecution, but SESTA/FOSTA amends this aspect. New to such risks, sites like Google Drive have removed videos, while other cloud providers are dumping clients they view as a risk. Many don’t want to contract with anyone engaged in potentially illegal activities and therefore are engaged in a gut reaction against them. With such a new law, they feel more secure cutting the ties than waiting to see what responsibilities they will face.

We won’t understand the ultimate impact of SESTA/FOSTA for many years, but what we’re seeing so far is a lot of fear without a lot of understanding. Whether or not those reactions will lead to a reduction in the freedom so treasured in our digital lives, though, remains to be seen. Legislators, at least, hope it will all be to the greater good.

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