Every few weeks, adult entertainer Avery Jane is told to panic about the future of her social media profiles.
“Someone will be like ‘Oh my God, you have to clean out your entire Twitter, anything NSFW, they’re going to delete everybody’s account,’” Jane tells SF Weekly.
This is because two Congressional bills — the Fight Online Sex Trafficking Act (FOSTA) and the Stop Enabling Sex Traffickers Act (SESTA) — threaten website executives with sex trafficking charges should they “support” sex trafficking. But what counts as “support,” and whether legally practicing porn actresses like Avery Jane’s promotional accounts fall under the umbrella of “sex trafficking,” is poorly defined in the law.
Most sites have opted for censoring sexually explicit content entirely — and sex workers who have lost the accounts they used to advertise have found themselves walking city streets at night to look for clients, often falling victim to abuse. While the anecdotal evidence of this problem is overwhelming, hard data is scant. A new Congressional bill attempts to quantify it for the first time.
On Dec. 17, the annual International Day to End Violence Against Sex Workers, Silicon Valley Rep. Ro Khanna (D-CA) and Rep. Barbara Lee (D-CA) introduced the SAFE SEX Worker Study Act to research the effects of FOSTA/SESTA on the consensual sex work industry. Senators Elizabeth Warren (D-MA) and Ron Wyden (D-OR) introduced the bill in the Senate.
Khanna was one of only 25 house members and two senate members to vote against FOSTA/SESTA, saying he was warned by sex workers in his constitutency about the bill’s possibly violent effects before it was passed. The research proposed by the SAFE SEX Worker Study Act would be carried out by the Department of Health and Human Services (HHS), and will require consultation from the National Institutes of Health (NIH), Centers for Disease Control and Prevention (CDC) and the Substance Abuse and Mental Health Services Administration (SAMHSA).
“One of the travesties of passing FOSTA-SESTA is that the sex worker community was never consulted. They were never in hearings. They never got to testify,” Khanna says. In hearings for FOSTA and SESTA, multiple victims and relatives of online sex trafficking victims testified before Congress in support of the bills. Yet, anti-FOSTA politicians and advocates, despite agreeing on the importance of eliminating sex trafficking, say that all parties who would be affected by the bill were not considered. In fact, many activists say the bill just pushed trafficking operations further underground.
The bill proposes that data will be collected through interviews with, and surveys conducted by nonprofit and community-based organizations. Questions would be broken down into 14 topic areas, including impacts on homelessness, disparities in effects on LGBTQI+ individuals, and vulnerability to the transmission of HIV. These topic areas demonstrate a level of thoroughness to sex worker activist Carol Leigh, who says there is “no question [the bill] was informed by the experience of sex workers.”
Collecting data on sex work is notoriously difficult most of the industry is illegal. Alexandra Lutnick, senior researcher at UC Berkeley’s School of Social Welfare, says best practices in collecting that data include writing confidentiality agreements, creating a team of researchers with lived experience in the adult industry, and making sure interviewees are financially compensated for their time.
“Sampling is really hard because of the diversity of people and the diversity of locations where they’re doing sex work or being trafficked,” she tells SF Weekly. “Some people you’ll never be able to reach.”
Alexandra Yelderman, a law professor at the University of Notre Dame, cautions that while she is a proponent of more data on the issue, conducting a thorough study in just one year might be impossible. Further, she worries that even if the data is solid, it might not help persuade supporters of FOSTA-SESTA to change their minds.
“I’ve never heard anyone argue that this is good for sex workers, or even that it’s not having a bad impact,” she says. “The question is, is that outweighed by a positive reduction in trafficking, or some other benefit?”
Camryn Obscura, a transgender sex worker who mostly did street-based sex work in San Francisco during his transition, explains that, because of his experience, he would be very skeptical about responding to interviews and surveys from a government agency. He also worries that his fear is shared by many of his peers, and that this could skew the study in a way that doesn’t reflect the entire sex worker community. “The people who are most affected by FOSTA are probably going to be the least represented in any government research.”
The bill’s list of cosigners may already signal a change in Congressional attitudes, most notably with Warren and Bernie Sanders, both who voted for the Senate bill SESTA, signing on. Cosigners André Carson (D-Ind.), Judy Chu (D-Calif.), and Jan Schakowsky (D-Ill.) also voted in favor of FOSTA in the House.
Sex worker Trixie Mehreban attributes this shift to sex worker’s voices are getting louder. “I don’t think a lot of Congressmen actually had great information,” she says. “Yeah, they had constituents calling them telling them what it was actually going to be like, but they had, before that, years and years of anti-sex work information handed to them by much more powerful organizations than our own.”
There is, however, reason to believe the SAFE SEX Worker Study Act will receive pushback in Congress. Unlike FOSTA/SESTA, which enjoyed broad bipartisan support, the SAFE SEX Worker Study Act only has Democratic cosigners so far. Yelderman proposes that the very titles of FOSTA and SESTA, the “Fight Online Sex Trafficking” and “Stop Enabling Sex Traffickers” Acts, respectively, are the main reason.
“If you’re opposed to [FOSTA/SESTA], what, are you a sex trafficker?” she asks.
Khanna says he hopes the data from the SAFE SEX Worker Study Act, and a committee hearing which includes sex worker’s testimony, will persuade some of his conservative counterparts in Congress to rethink FOSTA/SESTA.
Senator Rob Portman (R-OH), who introduced SESTA in the Senate, is the only Congressman so far to release a statement opposing the SAFE SEX Worker Study Act. Spokeswoman Emily Benavides told Politico FOSTA-SESTA “was about helping the most vulnerable women and children who were being raped and trafficked, and it’s succeeded in helping take down evil websites that facilitated these criminal trafficking enterprises.”
The only website executives who have been prosecuted for sex trafficking charges similar to those described in FOSTA/SESTA were executives of the personals site Backpage — and those executives were prosecuted in the weeks before FOSTA/SESTA was even signed into law.
There is also a concern amongst some sex worker activists that waiting for a year-long study won’t stop the violence and isolation FOSTA/SESTA creates in the meantime. However, the Woodhull Freedom Foundation, with the support of Human Rights Watch and several other organizations, is simultaneously fighting against FOSTA SESTA on First Amendment grounds. The legal team just won an appeal in a D.C. District Court, reversing a prior decision which said the plaintiffs did not have legal grounds.
Next, a trial court will decide in the coming months on whether FOSTA/SESTA violates the constitution by having a “silencing effect” on free speech online.
Cosigners of the SAFE SEX Worker Study Act have requested a hearing from the House Committee on Energy and Commerce, and hope to have that hearing in the next several months.