Why “Fixing” Section 230 Will Not Save Anyone

Leila Selchaif

A cabal of Satanic Democratic leaders are operating a child sex trafficking ring. Most people recognize this as the basic plot of the Q-Anon conspiracy theory. Sports fans coming out for Super Bowl Sunday encourage increased sex trafficking. Fewer people recognize this to be just as much of a myth. Public panic about human trafficking creates higher police budgets for raids, which end up traumatizing, incarcerating, and harming sex workers. Not all sex workers are victims of sex trafficking. Many sex workers do not want to be treated as victims. Indeed, when the criminal justice system treats sex workers as victims, it often further harms them. Public messaging around the dangers of trafficking has also led to the introduction and passage of bills aiming to curtail the sinister power of the internet to facilitate sex trafficking. A method favored by these bills is to amend Section 230 of the Communications Decency Act (CDA), which provides immunity to internet platforms from the speech and actions of users who post on their platforms. Just as much as on the streets, policing of the internet has caused great harm to those it claims to protect.

This isn’t the first time that those in power have tried to restrict indecency and immorality in response to a perceived sexual danger that was largely fabricated or misrepresented—far from it. In 1910, the U.S. passed the Mann Act into law. Also known as the White Slave Traffic Act, the legislation was a response to changing social factors that were bringing young, rural white women to industrialized, urban jobs, increasing their agency and sexual independence. Indeed, some newly urbanized working women were drawn into sex work to pay the bills. However, the response was an exaggerated and racialized moral panic alleging a conspiracy of vast trafficking rings that kidnapped women out on innocent ice cream dates to become the sex slaves of Jewish pimps and Chinese johns. This message spurred the passage of the Mann Act. This law was then used to regulate women’s sexuality and facilitate racially motivated arrests of Black men, most famously of the heavyweight champion Jack Johnson, prosecuted under the Mann Act for transporting a woman across state lines for the purpose of prostitution[i]—that is, driving with his soon-to-be wife, the white Lucille Cameron. The Mann Act is still in force today, although it has been amended to reduce the ambiguity of the language that allowed such moral (read: racist) policing and is now used mainly to prosecute sex trafficking of minors.

Just as urbanization offered many a new kind of freedom, danger, and panic early in the 20th century, the internet loomed menacingly at the end of the century. The CDA was created in large part in reaction to a fear that children, newly logging on to cyberspace in 1995, would gain unfettered and damaging access to an internet filled with pornography (a fear that was fabricated by an alarmist Time magazine cover story that relied on a misleading study). Twenty-five years ago, the CDA restricted immunity for providers of indecent or obscene content that could reach children, although these restrictions were ultimately overturned by the Supreme Court in a challenge by the ACLU. Unlike the Mann Act, though, the CDA had a caveat. Section 230 was written by then-Representatives Chris Cox and Ron Wyden in response to concerns that the CDA would introduce crushing liability for internet providers. It stated, “[n]o 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.” Over the years, Section 230 became the most important provision of the CDA, allowing internet providers to grow and host vast arrays of content and tools that had not been envisioned by CDA legislators. A half-century after its introduction, it has become the intense focus of legislative reform efforts.

Challenges to Section 230

Section 230 has long been credited for shaping the way the modern internet looks, allowing for innovation and freedom of expression. Internet service providers can host content without fear of being sued for something a user (a Youtube comment, a tweet, a Craigslist ad) said or did. There are downsides to this license. For example, because of provider immunity, victims of trafficking into the sex trade face barriers when attempting to sue the site that hosted the ad that enabled their traffickers to abuse them. The Stop Enabling Sex Traffickers Act (SESTA) and Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) were passed in 2018 as one law, FOSTA-SESTA, as a measure to combat the issue of impunity for facilitators of trafficking online. From the moment it was introduced, however, FOSTA-SESTA faced strong pushback from internet service providers (ISPs), who rightfully feared that it would open them to litigation, and from sex worker’s rights advocates, who just as rightly feared that they would lose all safe spaces in which to conduct their work and vet clients. After some concessions made to ISPs, and under social pressure not to oppose the fight against sex trafficking, internet giants like Google relented in their opposition, and FOSTA-SESTA passed.[ii] Immediately, sex workers were affected as ISPs such as Craigslist Personals that had hosted sex workers (and facilitated sex trafficking) folded, anticipating litigation. Sex workers were no longer able to practice harm reduction—vetting clients, sharing information about their whereabouts with each other for safety, sharing information about sexual health and safety tips—and many were forced to return to working on the street, which is much more dangerous and offers many fewer opportunities to assess risk than internet transactions.

The passage of FOSTA-SESTA signaled that Section 230 was fair game, and that making the issue about sex trafficking was a proven route to unanimous bill passage. Currently, no other legislation has passed to modify 230, but in 2020 there were 16 bills from the senate and 10 from the House, with 8 of those using the rhetoric of combating sex trafficking or child sex abuse material (CSAM). The most dangerous of those was the EARN-IT Act, the aim of which, in the words of the Act’s sponsor, Senator Lindsey Graham, was “to ensure tech companies are using best business practices to prevent child exploitation online.” The act proposed an amendment to 230 that revoked immunity for internet websites and platforms, and made it easier to circumvent and undermine end-to-end data encryption. The result of these changes doesn’t just make it easier to find and prosecute those committing crimes against children, it also harms vulnerable populations, including sex workers and queer youth, by blocking them from online communities. The EARN IT Act is very much a successor to FOSTA-SESTA, trying to do for CSAM what FOSTA-SESTA says it did for sex trafficking, while making some additions. Some changes, like the move to encourage Good Samaritanism, seeks to correct the unintended[1] effect of FOSTA-SESTA, the distancing of ISPs from any space that risked causing them liability for sex trafficking. Other additions, like the attack on encryption, advance related but separate goals.

The EARN-IT Act, like all other 2020 bills, died on the floor when the 116th Congress ended in January. The 117th Congress is in its infancy still, but there is no sign that the attack on 230 will let up. In January, Representative Greg Steube re-introduced the CASE-IT Act to the House. It is similar to EARN-IT in that it seeks to remove immunity from internet hosts of “obscene” content, a term this is not clearly defined or agreed upon. Responding to recent events, it also removes immunity from “market-dominant” platforms, especially, it claims, ones that do not comport with the First Amendment (that is, ones that engage in politically motivated de-platforming of public figures. As any law student should know, of course, internet platforms are private actors, which the First Amendment cannot control, making the rationalization for this act even more laughable.).

The effect of this bill and its brethren will not be to increase free speech, but rather to allow censorship to proliferate. These bills, if passed into law, will likely cause providers to remove user-generated content such as chat functions from their platforms and will not create safer spaces for potential victims of CSAM and sex trafficking. Rather than combating these dangers, ISPs will be coerced by this bill to jettison liabilities, which in no way eliminates bad actors, but does hurt users of online tools that provide community, support, and information.

Decriminalize v. Abolish

Approaches to the sex industry vary, but can generally be split into two opposing camps: sex worker rights activists who support decriminalization of sex work, and anti-sex industry activists, who support abolition of sex work. The sex worker rights activists argue that sex work is work and should not be stigmatized or criminalized. There is a difference between legalization and decriminalization. Those who argue that sex work should legalized and highly regulated, as it is in Nevada and the Netherlands, believe legalization will provide sex workers with access to health services and afford them greater protection against violence and nonpayment for services. Most sex worker rights activists counter that regulation would continue to criminalize workers, such as migrants, who cannot get a work permit. Full decriminalization does not involve direct regulation by the government—rather, it would apply industry-specific protections that could be developed in consultation with sex workers to all, and failure to operate within those parameters would not send the noncompliant person to prison.

Those who oppose sex work promote criminalization as a way to curtail the market—within this group, some propose total prohibition, while others hold that third-party involvement (pimps, or managers) should be criminalized (abolition) or that clients and solicitation should be illegal as well (neo-abolition), and that the people who perform the service be treated as victims of sex trafficking. This last stance advocates for the Nordic Model, which criminalizes the purchase of sex and treats sex workers as victims. Those on the side of labor rights, racial justice, lgtbq rights, migrant rights, and civil liberties argue that this model makes it more dangerous for sex workers, forcing their interactions into more remote and dangerous locations in clients’ efforts to avoid police.

Negative Effects

Sex worker’s rights activists have roundly decried FOSTA-SESTA and tied it to harmful anti-trafficking efforts: “By constructing social alarms and deploying interventions that further marginalize racialized and sex-gendered target populations, FOSTA/SESTA relies on neo-abolitionist and sexual humanitarian approaches to trafficking and uses techniques of control under the guise of protection.” This “networked model of governance that contributes to heightened vulnerabilities for sex workers and trafficked persons in the United States” continues to be applied not only in proposed legislation, but in informal responses across the market. At the same time as the pandemic has pushed more sex workers online, and more people into online sex work, the options available for advertising and offering services—including videos, photos, bath water, and a texting “girlfriend experience”—have come under fire.

The threat of FOSTA-SESTA prompted the closure of Backpage, subreddits like r/escorts, and other sites that allowed sex workers to connect with clients. The few ISPs willing to take the risk of legal liability now charge premiums for ad space that many sex workers cannot afford. FOSTA-SESTA also cut off access to harm reduction tools like “bad date lists”: sites that listed known undercover cops and clients that were dangerous or refused to pay. Changing Section 230 has not increased the safety of people vulnerable to sex trafficking but has rather removed what safe spaces communities were able to create online. As the activist organization Hacking//Hustling writes, “[s]ex workers often live at the intersection of multiple marginalized identities and are the most immediately harmed by insecure and censored technology; if we create technology that is safe for sex workers, we’ve likely created technology that is safe for everyone.”  Restating that sentiment with the opposite focus, in the words of the sex worker Allison James, “The rest of you are probably going to get your nudes seen by FBI Joe, but sex workers are going to die.”  

In addition to the reduction of safe online spaces, increased liability and public morality messaging have interfered with the ability of sex workers to earn money from their work. Fear of liability has led many platforms to change their terms of service to censor sexual content. Sex workers are frequently shadowbanned and deplatformed from social media due to “inappropriate” posts, which further reduces their ability to reach clients. Payment processors such as Venmo and Paypal refuse to transfer funds related to (even legal) forms of sex work, and will freeze assets from accounts with “suspicious” transactions. This leaves third-party processors, just like website hosts, able to take huge cuts of sex worker’s profits in exchange for processing the payments. In December, after a New York Times article detailing the abuse and exploitation of girls by the porn industry went viral, Pornhub purged its site of all unverified user uploads and Mastercard and Visa stopped processing payments through the site. In response to this widespread attention, a bill was proposed in December 2020, the Stop Internet Sexual Exploitation Act, that would have required all uploaders of porn to verify their identity, and all porn sites to offer 24-hour support for taking down flagged content. Removing anonymity would put many sex workers in danger of serious harm and would bar undocumented sex workers who are unable to verify their identities from working online.

Section 230 hasn’t only been in the news on account of sex trafficking and CSAM. On May 28, 2020, then-president Trump issued an “Executive Order on Preventing Online Censorship” in response to Twitter’s fact-checking of his tweets about fraud in mail-in voting. The Executive Order requested an investigation of political bias in censorship of speech by ISPs, especially social media giants such as Twitter and Facebook. The Order was designed as a tool of retaliation to punish those who might oppose Trump’s message. After Trump was banned from Twitter for inciting the Capitol Riot, the political right clamored again about free speech suppression and called for the end of immunity for tech platforms that would silence them.  As Kashmir Hill put it recently, “Section 230 has become a touchstone in politicians’ fight against Big Tech. Conservatives argue it enables companies like Facebook and Twitter to censor them. Liberals argue it allows the companies to host harmful content with impunity.” Everyone, it seems, hates Section 230. How is it possible, though, that one side can say Section 230 is bad because it allows people to post harmful content, and the other side can say Section 230 is bad because it allows companies to keep them from posting? How can sex workers be aligned with Trump (let me post) and Q-Anon devotees be aligned with liberal snowflakes (take down dangerous people in power)? The answer is because Section 230 is not the problem—it is the scapegoat.

Section 230 is Not the Problem and Changing it Cannot Fix the Problem

Section 230 is a zeitgeisty bit of legislation to wave around and act like it holds the key to ending the internet’s turpitude, but there is no language tweak to that law that could do such a thing. Instead, changes to Section 230 cause sex workers to lose economic stability and physical safety. I focus on the effects to sex workers as opposed to everyone for many reasons. One reason is because sex workers are not some small minority, but instead make up a much larger segment of the public than most people know, because that identity is kept secret due to stigma. Another reason is that sex workers are on the front lines and feel the effects of changes before other segments of the population. What ends up happening to people in society at large happens to members of vulnerable communities first. The pandemic has starkly illustrated how class and race renders people far more vulnerable to a disease that officials initially liked to say “did not discriminate.” We should take heed and recognize that vulnerable communities should always be protected, not only from disease but also from discrimination and inequity. A simpler reason that I focus on sex workers is because sex workers matter. Sex work is work. Workers foundationally struggle against an unfair power dynamic. Bringing sex into the equation only makes the dynamic trickier. Bringing the internet in makes it trickier again, and increases the likelihood of exploitation as well.

Curtailing Section 230 has only led to greater exploitation and harm to sex workers. Perhaps that is by design. Certainly, the anti-sex industry movement has strong anti-sex ties. The organization behind the campaign that attacked Pornhub as a hotbed of trafficking is a fringe Evangelical group called Exodus Cry that grew out of the homophobic hate-mongering International House of Prayer (yes, seriously). It is important to think about who is behind the lobbying for Section 230 amendment bills, and who in power is impeding other kinds of legislation from getting passed. Even for the well-meaning politicians out there—like the Casper City Council Member who raised the concern during a meeting in February in Wyoming that making “performance prostitution” a crime might hurt someone using OnlyFans to make money on the side—we must ask who is being consulted to make decisions about what is a crime and what is not. There are human trafficking expert consultant networks that meet with politicians, but many are prohibited from promoting the practice or legalization of prostitution under the Trafficking Victims Protection Act. We need consultants who are sex workers and who are allowed to advocate for making sex work legal and safe.

The flurry of efforts to repeal Section 230 haven’t only been about making real change. Many of the bills are far too inflammatory and extreme to hope for actual passage into law. They serve to make other bills look more reasonable, and they serve as public messaging: as good PR for its sponsors and as a threat to sex workers. These bills make clear that sex worker communities aren’t safe and aren’t welcome on the internet. They take an emotional toll on their targets and constantly require diversion of resources from aiding sex workers to defensively heading off legislation efforts.

Alternatives to Amending Section 230

If Section 230 can be amended to target sex traffickers and harm sex workers, can’t it be amended to shelter vulnerable communities instead? It would be great if there was a simple fix, and the only issue was rallying around it and getting it passed into law, but the reality is that adjusting what and how online content is moderated won’t get to the root of the problem and its protection can’t be trusted. To be clear, Section 230 doesn’t require content moderation, but it does have a “Good Samaritan” clause that extends immunity not only to ISPs regardless of what content users post, but also to any actions an ISP might take to remove offensive content. Many recent bills have proposed a scheme that requires a certain level of responsivity from ISPs in order to keep that immunity—requiring content moderation, flagging, and removal of banned content.

Especially for smaller platforms, the pressure to be adequately responsive may be untenable, and this sort of requirement would lead to even more oligopoly among Big Tech. On the other hand, that danger may be overhyped, as there is a convincing argument that a smaller platform will have a more manageable content moderation workload, while the biggest platforms will struggle to comply with content moderation requirements. However, bigger platforms like Twitter have far deeper coffers to combat legal challenges stemming from non-responsive content moderation than small platforms. Another consideration is that algorithms will likely be used for content moderation. Those algorithms come with biases that have been shown to target people of color, queer people, non-native English speakers, and women.

Moderating content won’t work, and it’s deeply myopic of the structural issue at hand to think it might. As the authors of a 34-month study of the effects of FOSTA-SESTA on sex workers and victims of sex trafficking wrote, “A number of interview participants who had experienced the harmful effects of FOSTA/SESTA firsthand were keen to situate their experiences within a broader context of structural vulnerabilities at the intersection of poverty, gender, race, and immigration status.” They conclude, “incursions to sexual labor online, underwritten by anti-trafficking policy and executed via platform policing, payment processer prohibitions, and other networked responses, contribute to harms and economic losses and are likely to continue to do so in the future without meaningful policy change.”

We need to stop entertaining the idea that a Section 230 amendment, if it were only written right, would protect vulnerable communities and would effectively remove bad actors from the internet. Banning activity only pushes it farther underground, in harder-to-access corners of the web where people will be at an even more heightened risk of abuse and exploitation. Nor will lifting immunity protect you, whoever you are. There aren’t very many lawsuits against internet platforms or users, but Section 230 immunity is not the sole reason. There aren’t enough lawsuits because even a lawsuit with merit can be prohibitively expensive for a victim of a crime to pursue, and ISPs will always have the upper hand financially against a harmed individual. That is a failing of the civil legal system, and not of Section 230.

The best bills we can be passing now are ones that require studies of the effects of 230 bills on sex workers, like the SAFE SEX Workers Study Act, co-sponsored by a remorseful supporter of FOSTA-SESTA, our own Senator Warren. Studies like this one would be the first step needed to repeal FOSTA-SESTA and argue against future, similar legislation.

The remainder of the work lies outside of the scope of Section 230. To create safe spaces and combat sex trafficking, we must decriminalize and destigmatize sex work. We must combat public messaging that renders sex work dirty, taboo, and unprofessional, to afford current and former sex workers the freedom to work, buy homes, and parent without the threat of their backgrounds taking those opportunities away. We must decriminalize so that we can institute labor protections for sex workers, just as much as other workers. These are the ways that we protect sex workers and protect against sex trafficking, not through content moderation and internet liability.

Leila Selchaif is a law student at Northeastern University, class of 2022. She hopes to become a public defender after graduation. She loves the word romanette and hates that the O and the 0 are right next to each other on the keyboard.

I would like to acknowledge and thank Mariah Grant and Kate D’Adamo for sharing their thoughts and expertise, and reviewing this article. I would also like to thank Ari Waldman for advising me over the course of my research.

[1] Or, depending on who you ask, fully intended.

[i] The term “prostitution” has previously had a pejorative connotation. It is now normalized due to its use in legislation related to sex work, but the term “sex worker,” coined by Carol Leigh circa 1980, is the more common and preferred language today. I use the term prostitution because it is the one used in the Mann Act.

[ii] One may speculate even that Big Tech saw how dangerous FOSTA-SESTA would be to competitors and decided they might benefit from the law.

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