The Internet fight we’re too ‘shy’ to fight because… sex?

Laws impacting the Internet made in one place can have implications beyond their geographical jurisdiction. But in some instances, little noise is made about these laws despite their global impact — why?

This piece by our Marianela Ramos Capelo was originally published by Rabble magazine.

Your inbox has probably been getting a few emails from companies, organizations, and even services you didn't know you were subscribed to, alerting you about how their privacy policies, the way they handle your data, and thus their relationship to you has changed as the result of a new European regulation (the General Data Protection Regulation or GDPR).

And yes, this happened even for folks not living in Europe. The reality is that these days, laws from one place have impact beyond their geographical jurisdiction, and that's because the platforms and services we use online aren't tied down by geographic boundaries. While this could be a good thing -- as the GDPR is pushing companies to be more transparent everywhere, not just in Europe -- there's always another side of the coin: enter SESTA and FOSTA.

The Stop Enabling Sex Traffickers Act (SESTA) and the Fight Online Sex Trafficking Act (FOSTA) are two bills recently passed in the United States that claim to tackle sex trafficking online  -- nothing wrong with that. The problem is that they don't do that.

SESTA and FOSTA are so broad in language that they potentially criminalize legal activities, such as sex education materials, legal sex work online (e.g. consensual pornography, consensual and legal escorting services), and even personal ads. For instance, SESTA's language criminalizes any platform that engages in "assisting, supporting, or facilitating" trafficking, without any clear delineation of what these terms mean in practice.

As Electronic Frontier Foundation (EFF) reports, these bills were drafted without consulting experts on the matter, who claim that ousting consensual sex workers from platforms would put them in great danger, because these platforms allow for client-vetting processes, safety networks, and perhaps more importantly, it allows people to conduct business from safer places and away from the streets.

On the internet side of things, these bills break with what Vox called "one of the most important pieces of internet legislation ever created," Section 230 of the Communications Decency Act. This piece of legislation was key to the formation of the internet as we know it because it deemed that platforms (like Twitter, Facebook, or craigslist) could notbe held liable for what users posted on them. Arguably, without Section 230, none of the services we use would have been possible, as they would have been sued into oblivion.

These new bills create an exception to Section 230, watering down its protections and with the aforementioned broad language, pushing platforms to proactively shut down anything sex related "just in case." For instance, craigslist has already shut down its personal ads everywhere, to the detriment of many marginalized communities. To add insult to injury, this law is also retroactive, prompting platforms and individuals to delete materials posted before the bills were signed. And this is only the beginning of the shutdowns.

So, with SESTA/FOSTA having such a big global impact on free speech online, how come so little noise was made about these bills? As Open Privacy's Executive Director, Sarah Jamie Lewis pointed out, this issue did not receive the attention from internet freedom groups or tech businesses on the scale of what we've seen for #NetNeutrality or copyright (e.g. #SOPA and #PIPA). I can only venture to say that the mention of sex workers' rights and sex education preemptively scared many within civil society from tackling this. But this is how draconian legislation starts: by first impacting those who very few are willing to defend. As Jamie Lewis said, this might be one of those "first they came for…" cases. It is up to all of us to not shy away from these key fights to keep the internet open and censorship-free.