FOSTA: A Hostile Law with a Human Cost

Abstract

The Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (“FOSTA”) rescinded legal immunity for websites that intentionally host user-generated advertisements for sex trafficking. However, Congress’s mechanism of choice to protect sex-trafficking victims has faced critique and backlash from advocates for those involved in commercial sex, who argue that FOSTA’s broad legislative language does far more to harm sex workers—a group distinct from sex-trafficking victims—than it does to end sex trafficking, chilling significant protected speech in the process. These critics posit that FOSTA’s results toward eradicating sex trafficking have been negligible and that its chief outcome has been to eliminate digital screening and security protections that consensual sex workers rely upon, thereby forcing the industry back into a far more dangerous street-based model. By eliminating protections for consensual sex workers, however, FOSTA endangers trafficking victims as well, and without online advertisements serving as a “smoking gun,” law enforcement has struggled to find trafficked individuals. This Note explores FOSTA’s effects on consensual sex workers in the United States from two angles. First, it analyzes how FOSTA’s chill on speech that advocates for sex workers’ health, safety, and right to work in their industry contributes to the law’s unconstitutional overbreadth. Second, it compares FOSTA’s practical effects that are in line with its stated goals with the harmful consequences the law has inflicted upon the sex work community and beyond. While this Note proposes amended language to improve FOSTA, it ultimately advocates for FOSTA’s repeal and suggests that if sex work were decriminalized and more pragmatic legislation were implemented to better inculpate traffickers, mitigate harm to trafficking survivors, and reduce future victimization, FOSTA’s stated goals could be realized.