Sex workers warn of unintended consequences in Section 230 fight

Senate Majority Leader Mitch McConnell (R-Ky.) has threatened to tie Section 230 of the Communications Decency Act to negotiations over sending $2,000 stimulus checks to most Americans.

While the 1996 law, which protects online platforms from liability for content posted by third parties, is unlikely to actually be repealed during these negotiations, bipartisan momentum to at least reform it has been building.

Any potential tweak to Section 230 would not be Congress’s first stab at amending the law, which is considered a bedrock for the modern internet.

In 2018, President Trump signed the Fight Online Sex Trafficking Act (FOSTA), also referred to as SESTA after the original Senate bill, after it sailed through both chambers.

The bill amended Section 230 to make online platforms liable for content promoting prostitution, including consensual sex work, posted by third parties.

While it had been billed as a way to reduce sex trafficking, workers in the sex industry say that FOSTA/SESTA ultimately made their work more difficult and dangerous while doing little to address that very real problem.

With Section 230 in the spotlight again, the fallout of FOSTA/SESTA can provide an illustrative example of how tweaks to the law can have grave consequences for vulnerable communities.

Both versions of the bill were created with one explicit target in mind: Backpage, a website known for sex workers’ advertisements.

The company had fended off lawsuits in the past using Section 230 but was ultimately taken down using preexisting laws.

The downfall of Backpage combined with FOSTA/SESTA destabilized the sex work industry in the short term and harmed it gravely in the long term, according to Kate D’Adamo, a sex worker rights activist and partner at Reframe Health and Justice.

“What they were able to charge and the number of clients they had pre-SESTA/FOSTA never came back,” she explained.

Other websites that could have been spaces for sex workers to regroup after Backpage, such as Craigslist or Tumblr, cracked down on sex-related content in the wake of the law.

That decentralized sex work and forced content onto more obscure sites, ultimately making it more difficult to maintain lists of dangerous clients, called no-date lists and other norms surrounding interaction.

FOSTA/SESTA has also had repercussions for sex workers who have turned to social media to reach clients and build followings, especially with the pandemic limiting other avenues for promotion.

Sex workers who spoke with The Hill described having their accounts on Instagram and TikTok silently limited or outright deleted.

Summer Breeze, an OnlyFans creator who, like the rest of the sex workers interviewed for this story, asked to be referred to by her screen name, said that “Instagram just been shadowbanning people for a really long time.”

Gigi, a sex worker who had an account dedicated to sharing information about stripping and pole dancing with more than 3,000 followers taken down earlier this year for violating Instagram’s nudity policy, said that she had recently been getting notifications blocking her from posting.

“Further rendering us invisible in the context of a pandemic when most work is online and we can’t even promote our work online is actually evil in my opinion,” she added.

The targeting of sex workers on Instagram has gotten noticeably harsher since the passage of FOSTA/SESTA, Livia Roth said.

“Instagram has been quietly discriminating against sex workers for years, primarily Black and trans sex workers, but after FOSTA/SESTA were passed in 2018, the discrimination became much more widespread and openly hostile toward sex workers,” Roth, a sex worker who has been tracking the platform’s community guidelines, told The Hill.

Facebook spokesperson Stephanie Otway told The Hill that the company understands “that sex workers often disagree with what we do and don’t allow on Instagram, but with people as young as 13 using our service, we need to consider the responsibility we have to our youngest users.”

Otway also noted that the rules do not target any particular group and are applied “objectively, irrespective of who breaks it.”

Sex workers told The Hill that TikTok, the short-form video app that has exploded in popularity over the last year, is also hostile to them.

The platform has been taking down the accounts of users who link to the subscription-based platform OnlyFans, as Rolling Stone first reported.

Ally Hardesty, an OnlyFans creator, told The Hill that her account, on which she posted videos of herself dancing without nudity, was taken down out of the blue last month. Her OnlyFans was linked via Linktree, a third-party app that centralizes links to social media accounts.

“If they would have told me I would have happily removed the TikTok or known going forward, but they just completely kicked me off their platform, so it’s been really discouraging because it’s happened to a lot of my friends too,” she said.

Lydia Love, another OnlyFans creator, described a similar experience. She said her account with almost 100,000 followers was taken down without warning in mid-November. 

TikTok did not respond to questions about these removals.

Being deplatformed can have a serious effect on sex workers’ livelihoods, especially with the coronavirus pandemic taking away many of their other sources of promotion.

“Many rely on social media for advertisement, especially on sites like OnlyFans that do not provide internal traffic. In order for a model to gain subscribers, they must advertise elsewhere,” Roth said. “Even sex workers that are working in legal venues such as strip clubs often rely on social media advertising to gain clients.”

The traffic lost by being taken off Instagram or TikTok can lead to financial hardship. It can also take a mental toll on sex workers, said BammRose, a stripper, pole dancing instructor and organizer.

“I’ve seen people who have worked so hard to get their following up,” she told The Hill. “Now your years of hard work is gone in an instant. Like that for mental health first and foremost is just disheartening.”

Many of the proposed reforms to Section 230 follow the blueprint of FOSTA/SESTA, carving out the liability protection for things such as terrorist or child sexual abuse material.

One targeting the latter, the EARN IT Act, has gained bipartisan support in the Senate and seems more likely to become law than a broader Section 230 reform given that Democrats and Republicans remain diametrically opposed on their motivations for overhauling the law.

Many of the sex workers interviewed for this story cautioned people should look at the fallout of FOSTA/SESTA before making more carveouts, warning that they are often the “canary in the coal mine” for onerous restrictions.

“While sex workers are the ones very publicly losing these spaces, what’s not far behind is sexual education [and] different activist groups,” D’Adamo said.

“They want a group of people to test out their censorship on, and we’re just an easy target,” Love added.

Evan Greer, deputy director of internet rights group Fight for the Future, said that changes to Section 230 “could have profound chilling effects on social movements.” For example, she noted, platforms such as Facebook and Twitter could be hesitant to keep up the videos of police brutality that helped spark protests this summer if they could be sued for defamation by officers involved.

One group of Democrats, led by Sen. Elizabeth Warren (Mass.) and Rep. Ro Khanna (Calif.), introduced legislation last year to conduct a study of the experiences of sex workers after FOSTA/SESTA. The bill remains in committee in both chambers.

The consequences of FOSTA/SESTA for sex workers should be a part of debates on Section 230 moving forward even without a government study, according to Greer.

“It would be irresponsible and reckless for lawmakers to ignore the lessons learned from SESTA/FOSTA and rush into more changes to Section 230 before really coming to terms with just how much harm was done the last time they changed it,” she said.