Transactional sex is a controversial and difficult space for policymaking, fraught with data issues and authentic, deep-seated disagreements. It is also nuanced and complex, covering a wide range of experiences that includes trafficking, survival sex, economic exploitation, and both legal and illegal forms of consensual sex work.

Policy imperatives look different from each of these perspectives. Yet all of these experiences are stereotyped, stigmatized, and marginalized in mainstream U.S. society, and the voices of those with lived experience are often silenced. Policy, laws, and the public narrative are made about them—but typically without them.

As a participatory researcher in this field, my strong conviction is that it is not my place to tell people with lived experience how they should feel about their involvement in transactional sex or what their experiences mean or meant to them.

As a participatory researcher in this field, my strong conviction is that it is not my place to tell people with lived experience how they should feel about their involvement in transactional sex or what their experiences mean or meant to them. Here I explore the federal legislation known as FOSTA in order to make a case for participatory policymaking – listening and learning from a wide array of voices – to address root causes of harm in the sex trades and trafficking in the United States.

What Is FOSTA?

FOSTA passed with near unanimous bipartisan support in Congress and was signed into law by President Trump on April 11, 2018. In the months leading up to FOSTA’s passage, many survivors, anti-trafficking agencies, and celebrities such as Amy Schumer testified and pushed for passage of FOSTA. Yet, free speech watch dog groups, sex worker rights activists, and others opposed FOSTA.

FOSTA alters a key provision in the Communications Decency Act of 1996 (CDA) that protects internet platforms from being liable for content posted on their site by a user. Section 230 of the CDA states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

FOSTA specifically curtails Section 230 by removing liability protection for internet platforms for user-generated content that “promotes or facilitates” prostitution or trafficking. This is broad language open to interpretation.

FOSTA was intended to make it easier for prosecutors to shut down websites that promote or profit off of prostitution (including of minors) and trafficking. Since its passage, websites like Backpage.com or The Erotic Review, which allowed users advertise for sex, have since closed or moved overseas to avoid legal liability. There is evidence that Backpage.com and other sites were complicit in trafficking. The harms of trafficking online are real. The mother of a teen killed after being trafficked through advertisements on Backpage.com was present at the signing of FOSTA.

The CDA is also implicated in recent debates about fake news, election interference, and the responsibilities of internet platforms to police false, fake, or harmful speech on their platforms. As such, FOSTA’s impacts on internet free speech are potentially wide-ranging.

Transactional Sex and the Internet

The marketplaces through which sex is exchanged are rife with inequalities, intersectional oppressions, and various forms of violence.

The marketplaces through which sex is exchanged are rife with inequalities, intersectional oppressions, and various forms of violence.

But because prostitution is illegal in most of the United States, we do not know how many people engage in transactional sex, nor what proportion involves domestic and foreign national victims of trafficking.

The internet has become a dominant force shaping how transactional sex markets function. It provides a quick, easy, and relatively private way for sellers to advertise and for buyers to find and arrange a commercial sex act. A 2017 report from the Urban Research and Outreach-Engagement Center (UROC) identified over 37 online sites where advertisements for sex were posted. Any social media site, dating website, and online advertising platform can and probably is used to facilitate transactional sex.

Several UROC studies, and many other sources, have documented that traffickers use the internet to identify potential victims, recruit people into commercial sex, and control and monitor victims. But the extent of trafficking online is not known.

Impacts on People Who Trade Sex

My ongoing conversations with people with lived experience in transactional sex, advocates, police, service providers, and others suggests that FOSTA, while trying to address a problem, has caused harm to people who trade sex, including victims of trafficking. Media coverage, opinion pieces and blogs have highlighted these harms.

My ongoing conversations with people with lived experience in transactional sex, advocates, police, service providers, and others suggests that FOSTA, while trying to address a problem, has caused harm to people who trade sex.

Survivors, sex workers, and advocates say people are pushed offline and into street-based sex trading since FOSTA. In the absence of online marketing others have turned to pimps, traffickers and other third-parties to broker transactional sex markets. Others describe a proliferation and scramble for new websites based outside the U.S., thus curtailing law enforcement efforts to gather information about trafficking.

FOSTA may inhibit the use of the internet for safety and screening of purchasers. For example, “bad date lists,” a tool to compile and share information about violent and abusive people who purchase sex, may be seen as speech that facilitated prostitution. A participant with lived experience in a recent study at UROC said, “So when you criminalize those online spaces you make it harder for people to be aware and putting themselves at risk for police arrest, being attacked.”

Some contend that these harms were not unintended consequences and that FOSTA was a thinly-veiled attempt to further penalize and criminalize consensual sex work under the guise of helping victims of trafficking. I do not know the motivation of all who pushed for FOSTA, but the survivor of trafficking I know called for this legislation out of a deep desire to help victims. Those who opposed FOSTA had legitimate and well-founded concerns.

People in the field, including contributors to this dialogue, disagree on whether these costs are outweighed by the need to hold internet providers accountable and to disrupt potential trafficking online.

People in the field, including contributors to this dialogue, disagree on whether these costs are outweighed by the need to hold internet providers accountable and to disrupt potential trafficking online.

Common Ground and Participatory Policymaking

Stakeholders with authentic disagreements stemming from different experiences in transactional sex often end up supporting different policy agendas. In this case, survivors supported FOSTA and sex worker rights activists opposed it. Policy conversations related to transactional sex tend to hinge on the points of greatest disagreement. Is transactional sex a form of labor or exploitation? Should we decriminalize prostitution? These are big social and political questions.

Yet, I see a great deal of common ground. Survivors and sex workers alike confront the harmful impacts of intersectional oppressions of racism, sexism, homophobia, and transphobia on their lives and in shaping the marketplace for transactional sex. Economic exploitation and stigma is commonplace in commercial sex.

I see many opportunities to reduce harms within the new reality of FOSTA. For example, there is broad agreement that people with lived experience should be able to work together to identify and avoid people who purchase sex who are violent or otherwise harmful. Right now, this activity is potentially subject to penalties under FOSTA. But this could be changed.

If we can center policymaking on a plurality of voices, we can perhaps identify a shared path to attacking the structural harms that shape the marketplace for sex and our broader society.

If we can center policymaking on a plurality of voices, we can perhaps identify a shared path to attacking the structural harms that shape the marketplace for sex and our broader society. This will require hard conversations, open listening, and deliberate and inclusive processes.