How Does FOSTA-SESTA Impact the Adult Industry?
The controversial former Republican president Donald Trump and the anti-web technology progressives and social conservatives who dominated the U.S. Congress enacted the FOSTA-SESTA (Fight Online Sex Trafficking Act-Stop Enabling Sex Traffickers Act) law in an apparent attempt to combat online sex trafficking and non-consensual content.
The FOSTA-SESTA has been remarkably ineffective, despite the law’s stated goals of ending sex trafficking and providing victims of CSAM and CSEM with more protection. Consequently, it has stifled online conversation among adult content creators and sex workers.
We at Adult B2B Marketing are pleased to provide this blog article on this crucial subject.
The FOSTA-SESTA’s History
FOSTA-SESTA became a legislation as a consequence of prolonged discussions over amendments to Section 230 of the Communications Decency Act of 1996. Along with the remainder of the Communications Decency Act, Section 230 was passed in 1996 and is a first-of-its-kind regulation that shields children from age-restricted information on the internet, such as criminal obscenity and indecency.
First, There Was Section 230
It would be against the law for kids to communicate offensive content through the internet. Nonetheless, the legal definition of “obscene” is ambiguous and may be interpreted by certain juries to encompass both constitutionally protected sexual expression and consenting pornographic material.
The First Amendment of the United States Constitution was immediately violated by the law’s framework, as several civil society organizations and civil libertarians pointed out. This was later verified in the historic Supreme Court decision of Reno v. American Civil Liberties Union (ACLU). The majority of the high court found that the Communications Decency Act of 1996 severely restricted First Amendment rights online and that many of the statute’s provisions could not be implemented equitably. However, the court opted to retain Section 230. The safe harbor provisions of Section 230, which do cover digital platforms, are interpreted by the high court and the body of case law that follows, leading to the term “First Amendment of the internet.” Remind yourself that most web platforms are protected legally from liability under Section 230 for information produced by third parties utilizing those platforms.
Adult entertainment corporations significantly rely on the safe harbor under Section 230 to self-regulate their platforms and stop unlawful activities, such as the publishing and distribution of CSAM, all content piracy, other violations of intellectual property rights, and non-consensual porn (such as “revenge porn”).
Criticism of Section 230 Initiates Intervention
Supporters of Section 230 contend that the internet would not exist as it does now if this law had not been passed. There is an abundance of evidence to back up their correctness. Because they are not continuously concerned with accountability, businesses that develop social media platforms or software for e-commerce marketplaces are immune to the damages caused by external third parties (users) that do violate the platform’s terms and conditions and applicable laws. But as the internet grew, an increasing number of conservative and progressive lawmakers attacked Section 230, arguing that the safe harbor absolves platforms of accountability for enabling people who want to harm others on the internet to do so freely without being blocked or subject to content moderation.
Right-wing opponents were joined by anti-porn organizations such as the National Center on Sexual Exploitation (NCOSE), which gained notoriety during Trump’s administration and the rise of the new populist right.
Section 230: Calm Approach Towards Trump and His Supporters
For example, prior to Elon Musk, Twitter suspended Alex Jones, a provocateur and host of a far-right radio program, for breaking the platform’s hate speech policy and terms of service. Right-wing critics of Section 230 of the Communications Decency Act of 1996 pointed to this move. Republicans and supporters of Alex Jones started alleging that huge digital companies, including Twitter, had a clear anti-conservative bias and were actively working to block controversial right-wing opinions.
In another incident, a number of far-right militias and other Trump supporters stormed the U.S. Capitol Building violently and fatally as a result of conspiracy theories regarding the 2020 election and calls for violence in Donald Trump’s tweets that were later labeled as misinformation and disinformation. At the time, Facebook and Twitter employed Section 230 to ban Donald Trump from their platforms in an effort to stop such acts of violence.
Section 230 and Opposition Groups
Along with other like-minded groups, NCOSE also joined in the denunciation. Historically, NCOSE—formerly known as Morality in Media—has been linked to the religious right. It was established by conservative Catholics.
NCOSE criticized the Supreme Court in Reno v. ACLU for giving in to civil libertarians at the time. NCOSE continued to collaborate with other right-wing groups in an effort to enact FOSTA-SESTA. Various parties argued that websites hosting adult content, escorting classifieds, and providing other platforms for online sex work are shielded from possible civil and criminal penalties by Section 230. FOSTA-SESTA has gained popularity due to religious right-wing and anti-porn feminist organizations, who claim that controlled, consensual porn production leads to considerable sexual exploitation and criminality. This is not accurate, particularly in light of the industry’s need to provide transparent reports to the Department of Justice and other governmental agencies.
Opposition to FOSTA-SESTA
One of the criticisms against the legislation is that it hasn’t worked to stop sex traffickers; instead, it has stifled free speech and marginalized groups like consenting sex workers. President Donald Trump signed the bill into law in 2018, but since then, its impacts have caused the shutdown of several websites and online forums that sex workers used to screen clients, share information about safe working conditions, and offer support to one another. The closure of these platforms has left many in the sex work community feeling more vulnerable and alone. These platforms also provided sex workers with a sense of safety, support, and belonging. Online sexual censorship does that. Many have been compelled to work in hazardous situations as street laborers.
Legal ChallengesÂ
A few groups that advocate for the adult entertainment industry and the general public have challenged the law since it went into effect in 2018. One notable example is the ongoing legal action against FOSTA-SESTA undertaken by a group of plaintiffs, including the charity Woodhull Freedom Foundation.
The federal D.C. Circuit Court of Appeals is set to strike down a FOSTA-SESTA clause that forbids the promotion of sex workers, according to a January 2023 POLITICO article. The Woodhull Freedom Foundation has openly pursued its legal fight with the Internet Archive and Human Rights Watch to show that FOSTA-SESTA is not just a completely illegal statute but has also harmed a wider range of individuals than simply sex workers.
Political Reactions
One politician had a big response to the negative impacts of FOSTA-SESTA, notwithstanding the legal challenges. Rep. Ro Khanna, D-Calif., introduced the SAFE SEX Workers Study Act to look at the legal, social, and economic effects of FOSTA-SESTA since it was implemented during the Trump administration.
“I’ve heard from sex workers who have endured greater physical and sexual abuse after being forced off of internet platforms and into the streets to locate clients,” Rep. Ro Khanna said in a news release issued in 2022. Nevertheless, official study on how website closures affect those who depend on consensual, transactional sex has never been conducted. He is expected to resubmit this bill, even in the event that the Republicans take control of the House of Representatives in 2023 after Trump.
Khanna cites a GAO assessment which indicates that since its passage, the Department of Justice has just infrequently utilized it. Furthermore, the number of prosecutions is low. Adult B2B Marketing buddy and YNOT.com assistant editor Michael McGrady said the research “indicates that federal prosecutors have barely utilized the law since its passage.”
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