March 13, 2018

Questions remain on federal anti-sex trafficking legislation as Senate vote nears

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U.S. Sens. Tom Udall and Martin Heinrich (top) and U.S. Reps. Ben Ray Lujan, Michelle Lujan Grisham and Steve Pearce (bottom)

Correction: In referencing a Ms. article from 2011, this story originally said that Chris Garcia was one of the operators of an allegedly illegal website, Southwest Companions. Garcia was charged by police of being an operator of the site, which they alleged was a house of prostitution, but a state district court judge threw out all the charges. The reference has been removed.

It’s rare lately for Democrats and Republicans in Congress to find consensus, though some phrases like “infrastructure” and “small businesses” still inspire legislators to declare their willingness to work together. “Sex trafficking” is another one of those. In recent weeks, every member of New Mexico’s congressional delegation joined with a wide, bipartisan majority of their colleagues to proclaim that the horrors of sex trafficking must be stopped at every level, including by targeting privately hosted digital forums.

Federal lawmakers are on the verge of approving anti-sex trafficking legislation that would enact stricter law enforcement measures against websites with content that knowingly assists, promotes or facilitates sex trafficking.

It’s an emotionally fraught and sensitive topic, though everyone interviewed for this story agreed that sex trafficking, rape, and exploitation of minors are vile and require dedicated counteraction. In the minds of some of the bills’ opponents, however, the legislations’ debatable wording poses threats to free speech and invites state-directed enforcement of online forums, including anywhere human sexuality is openly discussed and portrayed.

Some also fear that despite its best intentions, consequences of the legislation could further endanger the same people it aims to protect.

New Mexico’s unified delegation

The House bill, titled “Allow States and Victims to Fight Online Sex Trafficking Act of 2017,” is referred to as FOSTA. The related “Stop Enabling Sex Traffickers Act of 2017,” or SESTA, has also garnered bipartisan support and awaits approval by the full Senate.

Republican U.S. Rep. Steve Pearce was one of 173 co-sponsors of FOSTA, which would hold online content companies liable for promoting, facilitating or “reckless disregard” of prostitution in addition to content related to sex trafficking. In a statement to NM Political Report, Pearce said “internet companies should be doing their fair share to assist law enforcement in the prosecution of criminal behavior. The ease of connecting traffickers through social media has contributed to the spread of trafficking and illicit activity online.”

While technological innovation is important, said Pearce, “these companies have a responsibility to recognize and address how their platforms can be weaponized to further aid criminal activity.” Democratic U.S. Reps. Michelle Lujan Grisham and Ben Ray Luján also both voted in favor of FOSTA. In an emailed statement, Luján echoed Pearce’s sentiments, adding that “[FOSTA] combats online sex trafficking by providing new tools to law enforcement and supports vigorous criminal enforcement against bad-actor websites.”

And U.S. Sen. Martin Heinrich said in an emailed statement that “sex trafficking is among the most heinous international crimes imaginable,” one he’d work on solving pragmatically.

U.S. Sen. Tom Udall’s statement referenced the gray areas underlying both current House and Senate versions of federal online sex-trafficking legislation. “I’m carefully weighing the concerns that have been expressed about free speech rights and the open internet with concerns by victims and law enforcement.”

He agreed with his colleagues that websites that purposefully facilitate sex trafficking crimes must be held accountable. “But before I make a decision on how to vote on the legislation from the House I want to be assured that it is targeted so that it prevents dangerous crimes, without unintended consequences of curtailing free speech,” the senator said.

FOSTA and SESTA also include language that would grant state Attorneys General power to bring civil suits against owners of websites if AGs believe “an interest” of any state’s residents was threatened or adversely affected by a website “knowingly” assisting, supporting or facilitating sex trafficking. Nearly five years ago, New Mexico’s Attorney General Hector Balderas and other state attorneys general across the country requested more “aggressive”—and potentially free-expression stifling—prosecutorial powers from the federal government to combat human trafficking and child exploitation.

Like Heinrich, Udall did not say whether he plans to vote in favor of FOSTA and SESTA, with the vote anticipated to take place as early as this week.

Undercurrents of controversy

Just before the Feb. 27 House vote on FOSTA, the Department of Justice sent a letter to every member of Congress summarizing its concerns about the bill, perhaps first and foremost that it is unconstitutional. A large majority of Representatives voted to pass it an hour later.

“We would have appreciated the [DOJ’s] input eight months ago,” when FOSTA was first introduced, said India McKinney, a legislative analyst for the Electronic Frontier Foundation. The nonprofit is dedicated to advocacy on digital civil liberties and has closely watched FOSTA and SESTA over the last year.

“One of the things we’re concerned about from a user’s perspective is that increasing the liability on multiple fronts is going to incentivize platforms to censor content,” said McKinney. “What we know is that a mix of computer algorithms and human actors still won’t be perfect. Legal speech—including speech from marginalized people, including speech from sex trafficking victims—is inevitably going to be censored under this new regime. It incentivizes platforms to over-censor so they don’t get in trouble.”

Language in both bills amends Section 230 of the Communications Decency Act, an area of law unique to the United States. “It’s why the modern internet has been able to evolve,” said McKinney. “That’s not to say that the modern internet doesn’t have problems; of course it does. But the solutions need to be specific and tailored and created with an understanding that there is a bigger ecosystem at play.”

The ACLU of New Mexico’s Executive Director Peter Simonson said while FOSTA and SESTA are “serious attempt to stop the use of the internet for sex trafficking,” civil liberties advocates are “concerned that these bills would significantly chill the free exchange of online political, artistic, and commercial speech without improving the plight of sex trafficking victims. Moreover, there is little to suggest that current law could not be used to find and punish the bad actors who are truly facilitating online sex traffickers.”

Supporters of  FOSTA and SESTA include presidential assistant Ivanka Trump, comedian Amy Schumer, Rep. Marsha Blackburn, R-Tennessee, and Rep. Amy Wagner, R-Missouri. They’ve teamed up with groups ranging from the faith-based National Decency Coalition and Expose Sex Ed Now, to World Without Exploitation, a coalition-based anti-human trafficking non-profit that conducts legislative lobbying under the direction of former Brooklyn prosecutor Lauren Hersh.

Albuquerque civil rights attorney Laura Ives said private companies like the classified advertising website Backpage are motivated to enable criminal behavior if they earn money off it. Measures like FOSTA and SESTA would enable law enforcement to hold them more accountable.

Arrangements to exploit victims of sex trafficking can be made online with such relative ease, said Ives, that legislation like FOSTA and SESTA “is our only hope of disrupting and dis-incentivizing a stream of revenue that is born of the most horrific nightmare imaginable.”

Ives said she appreciates free speech activism and recognizes that consequences of proposed federal legislation could impact willing sex workers. Ives has represented victims of sex trafficking, and she said private companies, including in the hotel industry, often look the other way in favor of profits. “Ending kidnapping and forced prostitution of women and girls—forced both physically and emotionally—has to be our priority.”

Also applauding FOSTA and SESTA is Lynn Sanchez, program director of Santa Fe-based The Life Link’s program to help trafficking survivors. She heads a local hotline, 505-GET-FREE, to help combat human trafficking. Sanchez said websites like Backpage serve as an “overwhelming” conduit between at-risk women and children and sex offenders.

“It seems like the first logical step would be to shut [Backpage] down,” Sanchez said. “For many of us who have seen that they’ve all been trafficked using Backpage, we think, ‘Why is that still operating? Why are we still allowing it, and why can’t we have stricter controls?’”

No definition, no comment

Lawmakers and politicians from President George W. Bush to New Mexico Attorney General Balderas have raised the profile of sex trafficking. Yet there is neither a shared definition of what sex trafficking means, nor any solid data on how prevalent a problem it is.

Some anti-trafficking advocates fear political use of the phrase “sex trafficking” confuses  a range of sex-related crimes. They point out subtleties of the language: The term “sex work” refers to all areas of voluntary employment in the sex industry, including prostitution. And prostitution, illegal in the United States except Nevada, is the act of offering one’s self for hire to engage in sex. According to U.S. criminal code, sex trafficking is the recruitment, harboring, transportation, provision, or obtaining of a person, especially a minor, for paid sex.

The most recent FBI numbers on sex trafficking didn’t include data on cases in New Mexico. Local law enforcement say sex trafficking crimes aren’t adequately reported to police. However, Noah Berlatsky wrote in 2015 in the The New Republic that the term “sex trafficking” is “used to incite moral panic” and often gets attached to cases that don’t involve human migration.

A 2014 report by the U.S. Commission on Civil Rights recommended that government officials take a stronger stand against sex trafficking, though Commissioner Gail Heriot warned unclear terminology could inhibit effective efforts. It may be that only a small fraction of commercial sex trade can be accurately compared to slavery, said Heriot, and use of terms like “sex trafficking” and “human trafficking” without agreed-upon definitions can hinder more than they help.

Erika Derkas, a professor of sociology, gender and women’s studies at New Mexico Highlands University, said wording that blends sex trafficking and sex work, along with other “victim-rescue language,” can justify law enforcement justify raids and sting operations that actually put sex workers at increased risk. Such marginalization, said Derkas, poses question about the underlying motives of policy makers and law enforcement.

Derkas pointed to a January raid of New Orleans strip clubs by law enforcement who portrayed it as part of a long-term anti-trafficking operation. “The victim-rescue discourse of ‘trafficked girls’ was the justification behind a massive raid of sex worker locations, effectively ‘cleansing’ the area of who was deemed an ‘undesirable element.’ And not one of those raids resulted in identifying a trafficked person.” In 2012, Albuquerque saw its own bipartisan legislation to direct anti-trafficking efforts toward strip clubs, a push that raised privacy and safety concerns among club employees.

NM Political Report repeatedly sought comment from the New Mexico Attorney General’s Office, New Mexico State Police, the Albuquerque Police Department and the Bernalillo County Sheriff’s Office about their approaches to counteract sex trafficking, as well as their views on proposed federal policies like FOSTA and SESTA. Bernalillo County Sheriff’s Office Deputy Felicia Maggard was the only one to respond. She said via email that office leadership did not approve NM Political Report requests to talk to staff with anti-trafficking expertise.

Striving to do no harm

In 2011, Ms. Magazine featured an anonymous sex worker in the wake of law enforcement’s shutdown of the Southwest Companions escort website.

“When we see sad circumstances of young girls being pimped and controlled and mistreated, and then even more horrific stories like the West Mesa murders, it creates a feeling that ‘something should be done,’” said the anonymous sex worker. “The saddest part is that Southwest Companions was created exactly for that purpose, and now it’s gone.”

Sera Miles, the co-founder Sex Workers Outreach Project of New Mexico and the CEO of PEP, said she worries that if FOSTA or SESTA becomes law, people close to her may find themselves directed away from online forums used by sex workers who fear exposure to violence on the streets. There are also people who find themselves deprived of basic needs and resort to what Miles and others refer to as “survival sex” in exchange for essentials like housing, food and clothing. “I don’t like to conflate that with trafficking,” said Miles.

“A lot of young people—people who have been kicked out because they’re queer or they’re trans or they can’t live at home any more, because their stepdad’s been raping them for nine years—they don’t have another choice,” she said.

Meanwhile, many risk factors for exploitation are not online, said Melody Wells, director of development at New Day Youth and Family Services in Albuquerque. “Right here and now on my desk I have … stories of young people in their own words,” she said. “And three of the six mention their parent, usually their mother, teaching them about prostitution.”

Wells highlighted the need for public services, including effective job training, safe housing and substance abuse treatment facilities, for those at risk. “Some young people will present first with an overdose or severe addiction. There may never be enough beds, but we need more beds for teens specifically to go through detox and prepare for the recovery process.”

Yet the majority of youth that seek services at New Day don’t see themselves as victims, said Wells, and staffers are trained to listen to and respect those survivor narratives.

“You have to be trained enough to truly be non-blaming, non-judgmental, all those things that get people to open up,” she said. Helping survivors discuss their experiences facilitates healing, said Wells, and helps advocates understand how to prevent and respond to exploitation.

Wells said young people can help inform the public, policymakers and other young people who may be at risk. “Many young people, when they get to the point of leaving that life, are willing to talk,” she said. “It’s really important for policy makers to engage with providers who know firsthand, as well as with young people and adults who are being trafficked.”

Derkas, the NMHU professor, said a logical outcome of portraying people as victims is the conviction that they have to be rescued.

“We have to realize that sex workers are not passive victims of violence. Many, through a clear and sophisticated understanding of the work, are involved in working to reduce violence and protect one another from within their community,” she said. “Arresting sex workers, outing sex workers and disrupting forms of income is likely to intensify their potential harm.”

Margaret Wright is a contributor to NM Political Report. Email her at margaret.wright@protonmail.com

Correction: This story originally said the bills amend Section 203 of the Communications Decency Act. They actually amend Section 230.