How Online Censorship Harms Sex Workers and LGBTQ Communities
In 2018, Congress passed a law that aimed to address sex trafficking on online platforms. That’s a laudable goal, but the way Congress went about it has led to dangerous and disproportionate online censorship — particularly of the communities the law was trying to protect.
The law, the Allow States and Victims to Fight Online Sex Trafficking Act/Stop Enabling Sex Traffickers Act (), hasn’t meaningfully addressed sex trafficking. Instead, it has chilled speech, shut down online spaces, and made sex work more dangerous. Now, courts are poised to interpret it in a way that could make these harms even worse — by imposing liability on online platforms that don’t even know their services are being used for sex trafficking. Along with the Center for Democracy & Technology (CDT), we recently filed three friend-of-the-court briefs on behalf of ourselves, CDT, and a number of LGBTQ+, sex worker, and startup advocacy organizations arguing that courts should not interpret the law in this way, because doing so would incentivize online intermediaries to censor more online speech — especially materials about sex, youth health, LGBTQ+ identity, and other important concerns.
A study of FOSTA's effects on sex workers showed that it increased economic instability for about 72% of the study’s participants and nearly 34% reported an increase of violence from clients.
The criminal provisions of FOSTA have already chilled online speech. Those provisions created a carve-out to platform immunity under Section 230 for certain crimes related to sex trafficking. Just as the ACLU warned it would, that carve-out has caused online platforms to remove information that sex workers rely on to keep safe, and to shut down conversations about and , particularly by and for people. Instagram, for example, has that post about sex; meanwhile, some niche, free, and queer websites have . Online intermediaries have largely “bad johns” lists compiled by sex workers to identify abusive clients, and many affordable ways to sex work.
This has pushed people in the sex trades, who work in legal, semi-legal, and criminalized industries, off of online platforms and into dangerous and potentially life-threatening scenarios. Some sex workers have had to return to outdoor work or to in-person client-seeking in bars and clubs, where screening is more rushed than it is online, and where workers are more vulnerable to . In one of FOSTA’s effects on sex workers, researchers found that the law had increased economic instability for roughly 72 percent of the study’s participants, and nearly 34 percent reported an increase of violence from clients.
Against this backdrop of harm, FOSTA has not led to more prosecutions of sex trafficking. Despite the expanded definition of sex crimes under FOSTA, a June 2021 by the Government Accountability Office showed that federal prosecutors had not used the additional criminal penalties established by FOSTA. At that time — more than three years after the passage of the law — the DOJ had prosecuted only one case using FOSTA. Indeed, it appears FOSTA made it more difficult to gather evidence and prosecute those who use platforms for sex trafficking purposes, in part because platforms .
Now, courts may be poised to impose liability on online platforms that don’t even know their services are being used for sex trafficking.
As if FOSTA hasn’t already caused enough harm, courts are now poised to make things worse by interpreting the law in a way that would open platforms like Twitter, Omegle, craigslist, and Reddit to liability for sex trafficking activities that occur on their services, even if the platforms have no actual knowledge of such activities. If the courts decide that platforms can face liability merely because they “should have known” that sex trafficking was occurring on their websites, many online platforms will inevitably respond by policing their users and taking an even more aggressive approach to content moderation. In particular, they will likely remove and censor more lawful content related to sex and sexual health, including by using automated tools that tend to and are unable to understand .
Imposing liability without actual knowledge would not only exacerbate real-world harms, but it would also raise serious First Amendment questions. As the Supreme Court recognized more than 60 years ago, when considering whether to impose liability on booksellers for the contents of the books they sell without requiring some level of knowledge, distributors “will tend to restrict the books [they] sell[] to those [they have] inspected,” and, as a result, “the contents of bookshops and periodical stands . . . might be depleted.” Because online intermediaries — from Google to Twitter to WhatsApp to Amazon Web Services, and other providers who will be governed by the outcome of this case — facilitate the publication and spread of billions of pieces of content every day, this concern is even more serious when it comes to online speech.
We urge the courts to avoid imposing liability on platforms when they do not actually know that particular crimes are occurring on their websites. Doing so will help ensure that all people, especially the LGBTQ+ community, sex workers, and sex health educators, can freely and safely express themselves online.
Learn More About the Issues on This Page
-
News & CommentaryDec 2024
Civil Liberties
We Need to Know More About State Supreme Court CasesWe Need to Know More About State Supreme Court Cases
State Supreme Courts interpret laws that impact some of the most intimate parts of our lives. Communities have a right to know what’s on the docket. -
Press ReleaseDec 2024
Civil Liberties
New ACLU Report Reveals Most State Supreme Courts Fail to Meet Key Transparency MeasuresNew ACLU Report Reveals Most State Supreme Courts Fail to Meet Key Transparency Measures
NEW YORK — Nearly half of all state supreme courts across the country fail to regularly post new cases they are considering, with only six meeting four key transparency measures already implemented by the U.S. Supreme Court, according to a new report published today by the American Civil Liberties Union. The report identifies significant steps that state supreme courts should take to inform the public about their cases, which have only grown in importance as the federal judiciary has become more hostile to protecting core rights and advocates have turned to state protections and state court litigation in response. Based on an analysis of the practices and policies of the highest courts in each state, including D.C., the report “Scorecard for State Supreme Court Transparency: How Does Your State Stack Up?” ranks each state supreme court in five tiers based on compliance with four key transparency measures. These measures include posting new cases online in a timely manner, providing timely information about legal issues presented by cases, making dockets accessible and free for the public, and making merits briefing accessible and free for the public. “State courts regularly hear — and are the final word on — cases affecting abortion rights, voting rights, criminal justice reform, and more. Yet, in many instances, the highest state courts do not provide meaningful public access to information about cases affecting the rights and liberties of millions of people. We urge state supreme courts to bring more transparency to the critical work they do,” said Julie Murray, co-director of the ACLU’s State Supreme Court Initiative. “In the face of a federal judiciary increasingly unwilling to protect core rights and an incoming administration that threatens to exacerbate that problem, state courts are an important defense for our liberty. They should be leaders in transparency, too,” said Bridget Lavender, Skadden Fellow with the Initiative. The report emphasizes that state courts “play an outsized role” in many parts of the law, but their ability to “guard our liberties depends in significant part on whether those courts adopt transparent processes.” It further highlights that state supreme courts have led the way on enormously consequential decisions in recent years. In particular, some state supreme courts have recognized the right of same sex couples to marry, and did so long before federal courts. They have also declared the death penalty unconstitutional under state law despite contrary federal law, protected access to reproductive health care as a right even as that right was being stripped away at the federal level, and provided more robust protection to people subject to unreasonable searches and seizures. The report urges state supreme courts to take action to improve their transparency practices, taking notes from the courts that have already implemented these measures. It notes that regularly posting new cases and the issues they represent, and providing timely access to dockets and merits briefing allows the public, the press, and the legal community to track cases as they unfold, identify cases with statewide consequences, and understand what’s at stake. -
Press ReleaseNov 2024
National Security
+2 Issues
ACLU Urges House to Kill Bill that Could Give Trump Admin Power to Crush Dissent and Go After Political EnemiesACLU Urges House to Kill Bill that Could Give Trump Admin Power to Crush Dissent and Go After Political Enemies
WASHINGTON — The American Civil Liberties Union strongly urges the House of Representatives to vote NO on H.R. 9495, the Stop Terror-Financing and Tax Penalties on American Hostages Act, which would grant Donald Trump and his handpicked secretary of the Treasury power to investigate and effectively shut down any tax-exempt organization — including news outlets, universities, and civil society groups — by stripping them of tax-exempt status based on an unilateral accusation of wrongdoing. “Passing this bill would hand the incoming Trump administration a dangerous new tool it could use to stifle free speech, target political opponents, and punish disfavored groups,” said Kia Hamadanchy, senior policy counsel at ACLU. “The freedom to dissent without fear of government retribution is a vital part of any well-functioning democracy, which is why Congress must block H.R. 9495 before it’s too late.” While there is a 90-day “cure” period in which a designated nonprofit can mount a defense, it is a mere illusion of due process. The government may deny organizations its reasons and evidence against them, leaving the nonprofit unable to rebut allegations. This means that a nonprofit could be left entirely in the dark about what conduct the government believes qualifies as "support," making it virtually impossible to clear its name. Last month, the ACLU and a diverse array of over 130 other tax-exempt organizations — including human rights, reproductive health, and immigrants’ rights groups — wrote to Congress urging them to vote no. The letter also explains that the groups do not oppose the provisions in H.R. 9495 that relate to preventing the IRS from imposing fines and penalties on hostages while they are held abroad. Indeed, these provisions have already passed the Senate on their own, and if the House of Representatives were to pass a version of this bill that did not include the text of H.R. 6408, it could be sent immediately to President Biden for his signature. -
News & CommentaryNov 2024
Civil Liberties
Donald Trump Will Return to the White House in January. The ACLU is Ready.Donald Trump Will Return to the White House in January. The ACLU is Ready.
Starting in 2016, the ACLU filed more than 400 legal actions against Trump and his administration. As Trump returns to the White House, we’re ready to return to the courts and Congress to fight for our civil liberties.