[STUDENT ESSAY] How US Law FOSTA-SESTA “Inadvertently” Censored Sex Workers’ Social Media Usage

By Zoe Murray

The Digital, Governance and Sovereignty Chair will now publish, on a regular basis, the finest essays and papers written by Sciences Po students in the course of their studies.

This blogpost features the essay written by a year-long exchange student at Sciences Po (Reims campus), as part of the course taught by Rachel Griffin and entitled ‘The Law & Politics of Social Media’.

The COVID-19 pandemic has led to a surge in online sex work, providing a safer option for sex workers (SWs) to earn a living from the comfort of their homes. While the advancement of technology has allowed sex workers to promote their services through media like OnlyFans, some platforms are now modifying their terms of use to exclude sex workers and their profession. Thanks to apps like Twitter, Instagram, and TikTok, sex workers can now access previously unattainable demographics and expand their clientele. However, the COVID-19 pandemic has forced many to move their services online– this has not been a positive change for everyone. Some SWs opt to keep their services offline to avoid the potential fallout from a negative digital footprint. Others who hold alternative employment are hesitant to promote their sex work on online platforms. Furthermore, the continued stigmatization and criminalization of sex work in many places mean that workers may be reluctant to disclose their profession to friends and family. Lawmakers and constituents alike must recognize the complexities and nuances of this issue and work together to foster a safe and equitable environment for all sex workers.

Many sex workers created accounts on a popular website, OnlyFans. This website allowed users to post freely and charge subscription fees for users to see the content. It is advertised to allow “creators… to offer videos, photos, and even one-on-one chat opportunities for a price.”  For example, a sex worker can make videos or take pictures while performing sexual acts and post them for all their subscribers. Subscribers can also give tips to creators if they did something that satisfies their own sexual desires, such as saying their name, performing a sexual deed, or fulfilling a particular fetish. During the pandemic, SWs often linked their OnlyFans accounts to other social media accounts. Applications such as Instagram and TikTok realized how sex work was being advertised on their platforms and some concluded that it violated their “Terms and Conditions”. They began to censor the accounts of sex workers that promoted their services directly through their sites or third-party platforms like OnlyFans.

FOSTA-SESTA: Infamously Introduced Under the Trump Administration

“An overbearing, paternalistic law that does nothing to actually fight sex trafficking but, instead, is used to censor sex worker presence online and create more dangerous situations,” said a sex worker when asked to describe the FOSTA-SESTA bill package that was created in 2018 under the Trump administration. FOSTA, introduced to the House of Representatives, and SESTA, introduced to the Senate, were intended to revise outdated laws that the Trump administration deemed no longer relevant. This new package rectifies the 1996 Communications Decency Act (CDA), which concerned user privacy on Internet Service Provider (ISP) platforms. Trump’s administration found Section 230, a faction of the CDA that didn’t make ISPs liable for users’ content, outdated. Section 2 of FOSTA-SESTA writes, “[1996 Section 230] was never intended to provide legal protection to websites that unlawfully promote and facilitate prostitution and websites that facilitate traffickers in advertising the sale of unlawful sex acts with sex trafficking victims; (2) [such sites] have been reckless in allowing the sale of sex trafficking victims and have done nothing to prevent the trafficking of children and victims of force, fraud, and coercion; and (3) clarification of such section is warranted to ensure that such section does not provide such protection to such websites.” FOSTA-SESTA aims to hold platform publishers responsible for their user’s content, specifically if “ if third parties [were] found to be posting ads for prostitution — including consensual sex work.”

FOSTA, short for “Allow States and Victims to Fight Online Sex Trafficking Act/Stop Enabling Sex Traffickers Act,” was originally created with the intention of stopping sex traffickers from finding their victims on social media platforms. However, the bill has now allowed platforms to censor their users, specifically those who participate in the sex sector, ultimately infringing on their freedom of speech enshrined in the First Amendment. Lawmakers seem to have a difficult time differentiating sex work from sex trafficking; sex work is a consensual profession, whereas sex trafficking is a form of forced labor. Supposedly unintentionally, this package has had a detrimental impact on sex workers who rely on social media platforms to find clients, sell content, and pre-screen for their own safety. 

The Impact of This Legislation

The flexibility of the Internet provides an ideal environment for sex workers to set boundaries, negotiate prices, and filter out clients before, if ever, meeting them in person. Outer safety nets like location-sharing applications can allow SWs to feel safe enough to meet clients after conversations online. Most sex workers use platforms– Instagram, TikTok, and Snapchat–  all of which were affected by FOSTA. Since these platforms do not charge users to post content, SWs used these applications to advertise their services.  A 2020 survey on the effects of FOSTA proved that 45.74% of sex workers could not afford to advertise their services on other platforms that required a fee. One sex worker claimed that the law was based on “overreaching whorephobia and misguided fear-mongering.” FOSTA also holds social media accounts financially and legally accountable if they are found to allow prostitution, or prostitution adjacent, content on their sites. This encourages platforms to use censorship patterns like shadowbanning or algorithm monitoring, limiting and controlling the number of users that a creator can reach. 

After FOSTA, Instagram implemented new Terms & Guidelines that include “we don’t allow nudity on Instagram… photos, videos, and some digitally-created content that show sexual intercourse, genitals, and close-ups of fully-nude buttocks…offering sexual services—also not allowed.” META, the owner of both Facebook and Instagram declares, “We allow for the discussion of sex worker rights advocacy and sex work regulation. We draw the line, however, when content facilitates, encourages, or coordinates sexual encounters or commercial sexual services between adults. We do this to avoid facilitating transactions that may involve trafficking, coercion, and non-consensual sexual acts.” META and similar companies employed FOSTA to hide the presence of SWs on their platforms, claiming that it was in the best interest of their users.

META’s actions are hypocritical. In the same “Sexual Solicitation” page, they commend the “[expression of] desire for sexual activity, promoting sex education, discussing sexual practices or experiences, or offering classes or programs that teach techniques or discuss sex” under their community policies, while actively attempting to eradicate their online profession. Since the COVID-19 pandemic, many sex workers have begun careers on OnlyFans, where they could safely generate sexual content. Through a link in the bio on Instagram, they encouraged clients to find their content there. However, after FOSTA, sex workers found that any posts or links that were related to sex were immediately taken down or flagged. If an account has been flagged four more times, it will be permanently deleted. In turn, SWs have been flagged for nudity or exploitation, and thus have had to find new ways to allude to their accounts or migrate to alternative platforms like Reddit or Tumblr. Although SWs are less likely to be shadowbanned on these sites, it is more difficult to rapidly gain a following, especially one consisting of clients who are willing to pay for content. 

Since FOSTA-SESTA, sex workers from marginalized communities are forced to engage in in-person meetings with clients without the protection of online harm-reduction techniques. This law has created an environment where 33.8% of sex workers report experiencing violence, as they are forced to return to the streets to meet clients without the safety net provided by technology. The impact of FOSTA goes beyond physical safety concerns for SWs– it has also created financial instability for thousands of individuals who depend on platforms to both sell content and meet clients. Ironically, the law has increased the likelihood of sex workers being exposed to unsafe situations, including encounters with potential sex traffickers. FOSTA gave social media platforms the clearance to censor users, and in turn, prostitutes and SWs have become more susceptible to exploitation and violence by clients. Despite lawmakers’ efforts, sex work has always been and will continue to be an essential profession. Laws like FOSTA only ultimately weaken sex workers’ financial security and increase their vulnerability to harm. Many SWs that were already marginalized (LGBTQ, people of color, people with disabilities), are finding it even more difficult to find work. Some women have few options beyond sex work, which can lead them to engage in street-based or pimp-facilitated sex work in greater numbers, completely contradicting the supposed original goals of FOSTA.

How does this impact non-Americans?

The implementation of FOSTA/SESTA has had a global impact, affecting social media users around the world. Facebook has changed its terms of use and community  policies to comply with this American law, which has caused frustration among European users.  Dutch Facebook users have voiced their worries about FOSTA/SESTA as it impedes their ability to promote safety measures for sex workers online, resulting in a more vulnerable and marginalized environment in person: “talking about sex is no longer allowed online……because it makes them blush in the US” Additionally, many European citizens have stated that it is unjust for American principles, morals, and politics to influence European’s social media usage.

In February 2022, the Victorian Parliament of Australia passed a bill to decriminalize sex work. However, the Online Safety Act, which was enacted the previous year, has negated the benefits of this Sex Work Decriminalisation Act, as it prohibits SWs from using online platforms to find clients safely. This act resembles FOSTA/SESTA; an Australian activist fighting for sex workers’ rights that believes that “[censoring] adult online content that could potentially have unintended consequences for the sex industry and porn industries and have a devastating impact on the ability of SWs to earn a legitimate income.” As FOSTA/SESTA gains more traction and affects the majority of social media platforms used by sex workers, the stigmatization and violence in the industry continue to be replicated worldwide.

The Digital Services Act (DSA) in the European Union has also sparked debate among sex-worker activists. The European Sex Workers Rights Alliance (ESWA)  claims that segments of the act are harmful to sex workers; “data collection requirements can cause more harm than their intended benefits…[could] expose sex workers to the threat of data leaks and abuses, including forced public outings (public shaming), stalking, blackmail, extortion, and violence or deprivation of child custody.” The ESWA attests that requiring a permanent phone number would make it difficult for SWs to have consistent content and accounts. Although not a mirrored law to FOSTA, the DSA includes parts that could make it difficult for sex workers to continue their profession in the European Union.

The Global Network of Sex Work Projects (NSWP), is a project committed to protecting the rights of sex workers around the world, consisting of 105 countries, 30 of those being in the European Union. The NSWP deduces that besides complete decriminalization, a suitable way to ensure their safety is the promotion of sex-worker-led ICT initiatives. ICT, information and communications technology, is the general framework for technological communicative online services. Some of the guidelines that are introduced regarding sex work are intentionally created to target and marginalize their professions (FOSTA-SESTA), and by allowing SWs to be at the front of their creation, ICTs would become infinitely more inclusive. Examples of ICT projects that would benefit sex workers are “buddy system” apps that allow sex workers to share their location and information with friends or family before meeting with clients. If technology developers, policymakers, and SWs were to collaborate to create these policies, we could change the outdated political and social attitudes toward sex work.

What is next?

The COVID-19 pandemic has expedited the modern shift towards online sex work, allowing sex workers to work from home and reach previously unreachable demographics and clientele. However, due to the passage of FOSTA-SESTA, some online platforms have modified their terms of use to exclude SWs and their content. Moreover, online sex work goes beyond advertising services; it allows them to safely create an online, sometimes anonymous presence, pre-filter clients, and reduce other disparities such as transportation or buying new clothing for clients. FOSTA’s passage is not only ironic as it promotes violence towards sex workers, but it also has not done much to protect children. FOSTA encourages platforms to censor their users, even if they are abiding by their original terms of use. Sex workers continue to be marginalized, and in the new era of technology, their voices must not be repressed. In 2022, the Safe Sex Workers Study Act, led by Senator Elizabeth Warren, Wyden, Representative Khanna, Lee Introduce Safe Sex Workers Study Act, was put forth to analyze the effects that FOSTA has had on SWs, with the end goal of repealing it altogether. Censorship and stigmatization both contribute to the marginalization of sex workers– to end this, we must reconsider FOSTA’s true intentions and how online platforms comply– ultimately leading to sex work’s decriminalization.

I will conclude this blog with the final emphasis that sex work is real work. Sex workers can be educated, uneducated, liberalized, or introverted– they could be mothers, aunts, teachers, bankers, baristas, writers, and widows– but most importantly, sex workers are people who deserve the same rights as everyone else. Sex workers are with us at the grocery store, they are in front of us at the polling center, they could be our classmates or colleagues, and principally, they are our friends on social media. Irresponsible laws like FOSTA-SESTA make a mockery out of the profession and put thousands of sex workers in harm’s way. If you’re reading this blog, I assume that you have an interest in politics, and I highly recommend that you research how sex work is regulated in your country and see what you can do to help.

Zoe Murray is a year-long exchange student from California at the Reims campus of Sciences Po Paris. Fascinated by the role that sex plays in our society, she studies the intersectionality of sexuality and gender with policy development. In the future, she hopes to attain a master’s degree in Public Health and eventually design inclusive and equitable policies that sanction universal reproductive healthcare and comprehensive sexual health education.