What does FOSTA/SESTA mean for sex workers in the ACT?
Most of us do not spend our waking hours catching up on legislation passed by the United States Congress or, for that matter, the United States Senate. They legislate for the United States and generally have little or no impact on our daily lives. For some people that changed with the passage of the FOSTA Act (Fight Online Sex Trafficking Act) in the US Congress and the SESTA Act (Stop Enabling Sex Trafficking Act) in the US Senate. Together they are referred to as SESTA-FOSTA and, once signed into law by President Trump on 11 April 2018 they made a big difference to how the internet worked, particularly for sex workers.
In addition to SESTA-FOSTA the CLOUD Act (Clarifying Lawful Overseas Use of Data) the environment in which US based web services, cloud services and publishers operate has fundamentally changed.
Prior to the SESTA-FOSTA Act, an online publisher in the US could not be held liable for things said or done by their users. This changed with SESTA-FOSTA, not just for US-based users but for everyone who uses a US-based service. Now, if a website can be shown to “assist, facilitate or support” sex trafficking its publisher is liable to prosecution with penalties of a fine or imprisonment. The difficulty comes in working out where the boundaries of the forbidden content lie. Because the legislation is ambiguous, many commentators have expressed concern that legal sex work, and sex workers, will have their business disrupted by being banned by website hosting services. In the panic following the passing of the bill many providers took the view that hosting content related to any kind of sex work was just too risky.
The CLOUD Act made it possible for US law enforcement to obtain warrants which compelled US based companies to hand over data and information stored in its services even where the material was stored or originated outside the US and had never been stored in the US.
In response to the likelihood of the passage of this legislative package Craigslist removed its “Personal” feature. Since the passage of legislation, we have seen the removal of some subreddits and some users having their accounts suspended with US based services and this restriction of access to internet dependent services is set to continue. This does not just affect US based sex workers, but also Canberra-based sex workers who under ACT and Australian law legally and legitimately advertise their professional services on affected sites. When these webhosting providers block sex-workers from business advertising on their service they reduce drastically the ability of sex workers to advertise their services and locate potential clients.
Sex work is legal in Canberra. Sex workers run their businesses using a range of channels to advise clients of their services. Many of the internet based channels have effectively been shut down without warning. No cloud based service for image sharing, reduced or no access to classified services, subreddits, deleted profiles, usernames and email accounts. This has an impact not only the livelihood of people carrying out a legal business but the access to their services by clients.
There are also significant safety implications from this change. Some services allowed for the rating of clients. If that feature cannot be used, the ability of the sex-worker to screen out unsafe or problematic clients is negatively impacted. The inability to advertise at all may also lead to sex workers engaging in less safe business procurement and engagement strategies.
Most galling is that this has not been because of an Australian law, debated and challenged in an Australian context and conforming to the expectations of the Australian public. This has occurred because a US law, ostensibly drafted to reduce sex-trafficking is so ambiguous that it appears to make publishers liable for any sexually explicit material that an over-zealous prosecutor deems to be trafficking related even where sex worker and the client are not within the US jurisdiction.
The AIDS Action Council Sex Worker Outreach Program will be hosting an information forum to discuss SESTAFOSTA and the recent changes in Canberra to the sex work legislation on Tuesday 29 May. Contact the office on 6257 2855 for more information.