There is no bigger story in the world of Consensual Transactional Sex than the FOSTA law. Yet there is so little information. One of the most routine questions I get asked is “What is going on with FOSTA?” So here is where we are with FOSTA so far. . .
What Has Happened
To date, there is no recorded instance of the FOSTA law being used by Federal, State, or Local law enforcement agencies. So what does THAT mean? The consensus from lawyers I’ve spoken to about this is two-fold: trying to take down websites is complicated and expensive for law enforcement and they have been waiting to see how any legal challenges to the law unfolded.
So tight budgets for law enforcement seem to be one factor in FOSTA not being enforced. Most local law enforcement agencies simply do not have the money or resources to make use of this law. And if they want to go after human trafficking and prostitution within their jurisdictions there are very easy and cheap things they can do, such as the types of “stings” they’ve been doing for many years. In fact, local LE agencies are still USING the websites our community uses in order to conduct their stings. This makes it rather unlikely that they would pursue shutting anything down. One vice detective I spoke to even lamented at the fact that Craigslist had shut down so much of the advertising that they used to actually make human trafficking arrests–specifically the “massage” advertising.
As for legal challenges, the one serious challenge that was filed in court has been dismissed. On September 24, 2018 Judge Richard Leon of the US District Court for the District of Columbia dismissed the legal case brought by the Woodhull Freedom FOundation, et al. [Here is a link to Judge Leon’s full ruling: FOSTA Ruling] He agreed with the motion for dismissal from the US Attorney General’s office that the plaintiffs did not actually have standing to file their lawsuit. This is important in that the dismissal of this case did not in any way address the merits of their case, nor did it deal with the legal validity (namely, the Constitutionality) of FOSTA. This leaves the door open for plenty of future challenges. The problem is, it also makes it clear that FOSTA will have to be used against us before it can be effectively challenged.
What Happens Next
Honestly, there are no clear answers.
Between the recent elections and the chaos in Washington–especially in the Department of Justice–I do not know if making use of the FOSTA law is much of a priority for anyone. That being said, there are two things that worry me.
One is that there has been a rumor that a few US Attorneys with very moralistic ideologies that have been waiting to make use of FOSTA. Their target is not human trafficking, but prostitution in general. The rumors that have come to me have suggested that they intent to start working on cases in 2019. It is unclear how recent political shifts might affect these plans.
The second worry is the President himself. It is abundantly clear that Mr. Trump is unpredictable and volatile. As his policies in some areas continued to be blocked by Congress, the Courts, and law abiding government workers it is distinctly possible that he might turn his attention to other areas in an effort to look powerful and productive. He celebrated the passage of FOSTA as though it was somehow his doing, so there is no telling when he might come back around to it and order the DOJ to start cracking down on our community.
What Should We Do
At this point, we need to be patient. And smart. I have previously advised everyone to be diverse in their online activities. Do not rely on any one website. As I mentioned above, shutting down a website is expensive and requires a lot of work. This means that the DOJ will not be able to target every website at once. So it is to the benefit of our community to be at least somewhat invested in multiple platforms.
I have also advised that sex workers should develop their own personal sites, and that they can make them “FOSTA-proof” (FOSTA-proof websites).
Any real challenge to the FOSTA law is going to require having that law used against one of us. This means that everyone who runs a website that could potentially be attacked needs to be prepared to fight. Unfortunately, I doubt that many will want to challenge the governement in court. Doing so could be very expensive, though I would hope that organizations such as Woodhull, SWOP, the ACLU, and others might help out. To fight this law will require someone in our community to be prosecuted and have the bravery to stand up to it and fight. And when that happens, they will need the support of our entire community.
I do believe that a challenge to the Constitutionality of FOSTA can be successful. It won’t be easy. It will likely have to go all the way to the Supreme Court. But it can be done.
Until then we need to continue to be who and what we are. We should not live in fear, but be prepared to be agile with how we manage our community. I do think it is not too early to start giving your support to organizations that are in this fight. Our community is very large, so if we all give a little bit we will be able to fund this fight when it comes.