FOSTA US Internet Censorship Law

A US federal appeals court has upheld key portions of a federal internet censorship law Congress passed to supposedly combat sex trafficking, but in reality censors all aspects of consensual adult sex work. However the court did reject some broad readings of the statute that censor even debate about prostitution.

Advocates for legalizing prostitution, the operators of the Internet Archive website, Human Rights Watch and a massage therapist who said he lost business when Craigslist pulled many categories of ads after passage of FOSTA in 2018 sued to block enforcement of the law.

The D.C. Circuit Court of Appeals ruled that language in the 2018 Fight Online Sex Trafficking Act -- better known as FOSTA -- is not unconstitutionally vague and doesn't violate free-speech rights.

However, the court did slightly restrict the reach of the censorship, saying:

We therefore hold that [FOSTA's] mental state requirement does not reach the intent to engage in general advocacy about prostitution, or to give advice to sex workers generally to protect them from abuse. Nor would it cover the intent to preserve for historical purposes webpages that discuss prostitution. Instead, it reaches a person's intent to aid or abet the prostitution of another person.

Judge Millett conceded that the language of the law could be seen as encompassing all sorts of conduct that arguably promotes or encourages prostitution. But she said the more limited reading was justified in this instance.She said:

Undoubtedly, the term 'facilitate' could be read more broadly. But nothing in [FOSTA] compels us to read 'facilitate' that way. Doubly so when a more expansive reading could raise grave constitutional concerns.

More than four years after its enactment, FOSTA remains an unconstitutional law that broadly censored the internet and harmed sex workers and others by chilling their ability to speak, organize, and access information online.

And the fight to overturn FOSTA continues. Last week, two human rights organizations, a digital library, a sex worker activist, and a certified massage therapist filed their opening brief in a case that seeks to strike down the law for its many constitutional violations.

Their brief explains to a federal appellate court why FOSTA is a direct regulation of people's speech that also censors online intermediaries that so many rely upon to speak--classic First Amendment violations. The brief also details how FOSTA has harmed the plaintiffs, sex workers, and allies seeking to decriminalize the work and make it safer, primarily because of its vague terms and its conflation of sex work with coercive trafficking.

"FOSTA created a predictable speech-suppressing ratchet leading to 'self-censorship of constitutionally protected material' on a massive scale," the plaintiffs, Woodhull Freedom Foundation, Human Rights Watch, The Internet Archive, Alex Andrews, and Eric Koszyk, argue. "Websites that support sex workers by providing health-related information or safety tips could be liable for promoting or facilitating prostitution, while those that assist or make prostitution easier--i.e., 'facilitate' it--by advocating for decriminalization are now uncertain of their own legality."

FOSTA created new civil and criminal liability for anyone who "owns, manages, or operates an interactive computer service" and creates content (or hosts third-party content) with the intent to "promote or facilitate the prostitution of another person." The law also expands criminal and civil liability to classify any online speaker or platform that allegedly assists, supports, or facilitates sex trafficking as though they themselves were participating "in a venture" with individuals directly engaged in sex trafficking.

FOSTA doesn't just seek to hold platforms and hosts criminally responsible for the actions of sex-traffickers. It also introduces significant exceptions to the civil immunity provisions of one of the internet's most important laws, 47 U.S.C. § 230. These exceptions create new state law criminal and civil liability for online platforms based on whether their users' speech might be seen as promoting or facilitating prostitution, or as assisting, supporting or facilitating sex trafficking.

The plaintiffs are not alone in viewing FOSTA as an overbroad censorship law that has harmed sex workers and other online speakers. Four friend-of-the-court briefs filed in support of their case this week underscore FOSTA's disastrous consequences.

The Center for Democracy & Technology's brief argues that FOSTA negated the First Amendment's protections for online intermediaries and thus undercut the vital role those services provide by hosting a broad and diverse array of users' speech online.

"Although Congress may have only intended the laudable goal of halting sex trafficking, it went too far: chilling constitutionally protected speech and prompting online platforms to shut down users' political advocacy and suppress communications having nothing to do with sex trafficking for fear of liability," CDT's brief argues.

A brief from the Transgender Law Center describes how FOSTA's breadth has directly harmed lesbian, gay, transgender, and queer people.

"Although FOSTA's text may not name gender or sexual orientation, FOSTA's regulation of speech furthers the profiling and policing of LGBTQ people, particularly TGNC people, as the statute's censorial effect has resulted in the removal of speech created by LGBTQ people and discussions of sexuality and gender identity," the brief argues. "The overbroad censorship resulting from FOSTA has resulted in real and substantial harm to LGBTQ people's First Amendment rights as well as economic harm to LGBTQ people and communities."

Two different coalitions of sex worker advocacy and harm reduction groups filed briefs in support of the plaintiffs that show FOSTA's direct impact on sex workers and how the law's conflation of consensual sex work with coercive trafficking has harmed both victims of trafficking and sex workers.

A brief led by Call Off Your Old Tired Ethics (COYOTE) of Rhode Island published data from its recent survey of sex workers showing that FOSTA has made sex trafficking more prevalent and harder to combat.

"Every kind of sex worker, including trafficking survivors, have been impacted by FOSTA precisely because its broad terms fail to distinguish between different types of sex work and trafficking," the brief argues. The brief goes on to argue that FOSTA's First Amendment problems have "made sex work more dangerous by curtailing the ability to screen clients on trusted online databases, also known as blacklists."

A brief led by Decriminalize Sex Work shows that "FOSTA is part of a legacy of federal and state laws that have wrongfully conflated human trafficking and adult consensual sex work while overlooking the realities of each."

"The limitations on free speech caused by FOSTA have essentially censored harm reduction and safety information sharing, removed tools that sex workers used to keep themselves and others safe, and interrupted organizing and legislative endeavors to make policies that will enhance the wellbeing of sex workers and trafficking survivors alike," the brief argues. "Each of these effects has had a devastating impact on already marginalized and vulnerable communities; meanwhile, FOSTA has not addressed nor redressed any of the issues cited as motivation for its enactment."

The plaintiffs' appeal marks the second time the case has gone up to the U.S. Court of Appeals for the District of Columbia. The plaintiffs previously prevailed in the appellate court when it ruled in 2020 that they had the legal right, known as standing, to challenge FOSTA, reversing an earlier district court ruling.

Wilhan Martono, the man who owned the adult classified ads website CityXGuide, has been arrested by federal authorities in the most high-profile multi-state legal action since the shuttering of Backpage.com in 2018.

Martono's arrest and the seizure of CityXGuide by authorities is the first such raid since President Donald Trump signed the FOSTA/SESTA internet censorship package into law in April 2018.

The arrest follows aTexas indictment against Martono filed June 2 and includes 28 federal charges, among them conspiracy, money laundering and promotion and facilitation of prostitution. The indictment links Martono to a network of adult-oriented websites like CityXGuide, BodyRubShop and variations on the name of the shuttered Backpage.com. Prosecutors also claim that in January 2019 Martono sent an email expressing a desire to take over from where Backpage left off.

This appears to be the first use of the criminal prohibitions on promotion and facilitation of prostitution created by FOSTA, said adult industry attorney Lawrence Walters.

Sex workers have been waiting for our day in court for over 100 years, announced Kaytlin Bailey, Director of Communications for the group Decriminalize Sex Work, and finally, we're going to get it.

On January 24, sex workers and their allies won an important victory in our ongoing constitutional challenge to SESTA/FOSTA, a federal law that attempts to erase the oldest profession from the Internet.

The sex workers are arguing that the government's censorship of internet websites used by sex workers has led to more them being endangered by having to seek trade in unsafe spaces, such as walking teh street.

Now the U.S. Court of Appeals for the D.C. Circuit ruled that their case can proceed to trial, where a federal judge will decide whether SESTA/FOSTA interferes with the constitutional rights of website operators and their users.

Lawyers for Facebook and Instagram have appeared in a Texas courtrooms attempting to dismiss two civil cases that accuse the social media sites of not protecting victims of sex trafficking.

The Facebook case involves a Houston woman who in October said the company's morally bankrupt corporate culture left her prey to a predatory pimp who drew her into sex trafficking as a child. The Instagram case involves a 14-year-old girl from Spring who said she was recruited, groomed and sold in 2018 by a man she met on the social media site.

Of course Facebook is only embroiled in this case because it supported Congress to pass an anti-trafficking amendment in April 2018. Stop Enabling Sex Traffickers Act and Fight Online Sex Trafficking Act, collectively known as SESTA-FOSTA, this attempts to make it easier to prosecute owners and operators of websites that facilitate sex trafficking. This act removed the legal protection for websites that previously meant they couldn't be held responsible for the actions of its members.

After the Houston suit was filed, a Facebook spokesperson said human trafficking is not permitted on the site and staffers report all instances they're informed about to the National Center for Missing and Exploited Children. Of course that simply isn't enough any more, and now they have to proactively stop their website from being used for criminal activity.

The impossibility of preventing such misuse has led to many websites pulling out of anything that may be related to people hooking up for sex, lest they are held responsible for something they couldn't possibly prevent.

But perhaps Facebook has enough money to pay for lawyers who can argue their way out of such hassles.

The Adult Performers Actors Guild is standing up for sex workers who are tired of being banned from Instagram with no explanation.

7th May 2019. See article from vice.com

In related news, adult performers are campaigning against being arbitrarily banned from their accounts by Facebook and Instagram. It seems likely that the social media companies are summarily ejecting users detected to have any connection with people getting together for sex.

As explained above, the social media companies are responsible for anything related to sex trafficking happening on their website. They practically aren't able to discern sex trafficking from consensual sex so the only protection available for internet companies is to ban anyone that might have a connection to sex.

This reality is clearly impacting those effected. A group of adult performers is starting to organize against Facebook and Instagram for removing their accounts without explanation. Around 200 performers and models have included their usernames in a letter to Facebook asking the network to address this issue.

Alana Evans, president of the Adult Performers Actors Guild (APAG), a union that advocates for adult industry professionals' rights, told Vice. There are performers who are being deleted, because they put up a picture of their freshly painted toenails

In an April 22 letter to Facebook, the Adult Performers Actors Guild's legal counsel James Felton wrote:

Over the course of the last several months, almost 200 adult performers have had their Instagrams accounts terminated without explanation. In fact, every day, additional performers reach out to us with their termination stories. In the large majority of instances, her was no nudity shown in the pictures. However, it appears that the accounts were terminated merely because of their status as an adult performer.

Effort to learn the reasons behind the termination have been futile. Performers are asked to send pictures of their names to try to verify that the accounts are actually theirs and not put up by frauds. Emails are sent and there is no reply.

The recent Fosta law in the US forces internet companies to censor anything to do with legal, adult and consensual sex work. It holds them liable for abetting sex traffickers even when they can't possibly distinguish the trafficking from the legal sex work. The only solution is therefore to ban the use of their platforms for any personal hook ups. So indeed adult sex work websites have been duly cleansed from the US internet.

But now a woman is claiming that Facebook facilitated trafficking when of course its nigh on impossible for Facebook to detect such use of their networking systems. But of course that's no excuse under the FOSTA.

According to a new lawsuit by an unnamed woman in Houston, Texas, Facebook's morally bankrupt corporate culture for permitting a sex trafficker to force her into prostitution after beating and raping her. She claims Facebook should be held responsible when a user on the social media platform sexually exploits another Facebook user. The lawsuit says that Facebook should have warned the woman, who was 15 years old at the time she was victimized, that its platform could be used by sex traffickers to recruit and groom victims, including children.

The lawsuit also names Backpage.com, which according to a Reuters report , hosted pictures of the woman taken by the man who victimized her after he uploaded them to the site.

The classified advertising site Backpage has already been shut down by federal prosecutors in April of this year.

A federal court considering a challenge to the Allow States and Victims to Fight Online Sex Trafficking Act of 2017, or FOSTA , dismissed the case on Monday.

EFF and partner law firms filed a lawsuit in June against the Justice Department on behalf of two human rights organizations, a digital library, an activist for sex workers, and a certified massage therapist to block enforcement of FOSTA.

Unfortunately, a federal court sided with the government and dismissed Woodhull Freedom Foundation et al. v. United States. The court did not reach the merits of any of the constitutional issues, but instead found that none of the plaintiffs had standing to challenge the law's legality.

We're disappointed and believe the decision is wrong. For example, the court failed to apply the standing principles that are usually applied in First Amendment cases in which the plaintiffs' speech is chilled. The plaintiffs are considering their options for their next steps.

FOSTA was passed by Congress for the worthy purpose of fighting sex trafficking, but the poorly-written bill contains language that criminalizes the protected speech of those who advocate for and provide resources to adult, consensual sex workers. Worse yet, the bill actually hinders efforts to prosecute sex traffickers and aid victims.

The lawsuit argues that FOSTA forces community forums and speakers offline for fear of criminal charges and heavy civil liability, in violation of their constitutional rights. We asked the federal court to strike down the law, though the government argued that the plaintiffs were not likely to be subject to criminal or civil liability under the law.

On Thursday, July 19, at 4 pm, the Electronic Frontier Foundation (EFF) will urge a federal judge to put enforcement of FOSTA on hold during the pendency of its lawsuit challenging the constitutionality of the federal law. The hold is needed, in part, to allow plaintiff Woodhull Freedom Foundation, a sex worker advocacy group, to organize and publicize its annual conference, held August 2-5.

FOSTA , or the Allow States and Victims to Fight Online Sex Trafficking Act, was passed by Congress in March. But despite its name, FOSTA attacks online speakers who speak favorably about sex work by imposing harsh penalties for any website that might be seen as facilitating prostitution or contribute to sex trafficking. In Woodhull Freedom Foundation v. U.S. , filed on behalf of two human rights organizations, a digital library, an activist for sex workers, and a certified massage therapist, EFF maintains the law is unconstitutional because it muzzles constitutionally protected speech that protects and advocates for sex workers and forces speakers and platforms to censor themselves.

Enforcement of the law should be suspended because the plaintiffs are likely to win the case and because it has caused, and will continue to cause, irreparable harm to the plaintiffs, EFF co-counsel Bob Corn-Revere of Davis Wright Tremaine will tell the court at a hearing this week on the plaintiffs' request for a preliminary injunction. Because of the risk of criminal penalties, the plaintiffs have had their ads removed from Craigslist and censored information on their websites. Plaintiff Woodhull Freedom Foundation has censored publication of information that could assist sex workers negatively impacted by the law. FOSTA threatens Woodhull's ability to engage in protected online speech, including livestreaming and live tweeting its August meeting, unless FOSTA is put on hold.

Update: A little reserved

20th July 2018. See  article from avn.com

Judge Richard Leon of United States District Court in Washington D.C. heard Woodhull's request for a preliminary injunction that would stop the law from remaining in effect until the group's lawsuit, but did not issue a judgement. Nor did he announce a date when he would issue a ruling.

According to one account from inside the courtroon, Leon sounded skeptical that the law had actually caused harm to the plaintiffs in the case.

YouTube has banned Erika Lust's series In Conversation with Sex Workers.

There was NO explicit content, NO sex, NO naked bodies, NO (female) nipples or anything else that breaks YouTube's strict guidelines in the series, Lust wrote on her website. It was simply sex workers speaking about their work and experiences.

Presumably the censorship is inspired by the US FOSTA internet censorship where YouTube would be held liable for content that facilitates sex trafficking. It is cheaper and easier for YouTube to take down any content that could in anyway connected to sex trafficking than spend time checking it out.

Erika Lust, a Barcelona-based erotic filmmaker, wrote in a blog post on Wednesday that YouTube terminated her eponymous channel on July 4, when it had around 11,000 subscribers. The ban came after an interviewee for the company's series In Conversation With Sex Workers, which had been on YouTube for about a week, tweeted to promote her involvement in the film. Within hours of that tweet the channel was terminated, citing violation of community guidelines.

Update: Charlotte Rose too

15th July 2018. See article from twitter.com

Charlotte Rose, a well known sex industry campaigner tweets:

We've just received an email to say that my YouTube channel has been suspended with no room for appeal - looks like no more live streams of @rosetalkssex?

I don't understand why I've been a target of a total censorship! @YouTube removes my Chanel and 5 years worth of content (which made them money) with no warning.

Supporters of the US internet censorship law FOSTA were supposedly attempting to target pimps and traffickers, but of course their target was the wider sex work industry. Hence they weren't really interested in the warning that the law would make it harder to target pimps and sex traffickers as their activity would be driven off radar.

Anyway it seems that the police at least have started to realise that the warning is coming true, but I don't suppose this will bother the politicians much.

Over in Indianapolis, the police have just arrested their first pimp in 2018, and it involved an undercover cop being approached by the pimp. The reporter asks why there have been so few such arrests, and the police point the finger right at the shutdown of Backpage:

The cases, according to Sgt. John Daggy, an undercover officer with IMPD's vice unit, have just dried up. The reason for that is pretty simple: the feds closed police's best source of leads, the online personals site Backpage, earlier this year. Daggy explained:

We've been a little bit blinded lately because they shut Backpage down. I get the reasoning behind it, and the ethics behind it, however, it has blinded us. We used to look at Backpage as a trap for human traffickers and pimps.

With Backpage, we would subpoena the ads and it would tell a lot of the story. Also, with the ads we would catch our victim at a hotel room, which would give us a crime scene. There's a ton of evidence at a crime scene. Now, since [Backpage] has gone down, we're getting late reports of them and we don't have much to go by.

The EFF writes:

We are asking a court to declare the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 ("FOSTA") unconstitutional and prevent it from being enforced. The law was written so poorly that it actually criminalizes a substantial amount of protected speech and, according to experts, actually hinders efforts to prosecute sex traffickers and aid victims.

In our lawsuit, two human rights organizations, an individual advocate for sex workers, a certified non-sexual massage therapist, and the Internet Archive, are challenging the law as an unconstitutional violation of the First and Fifth Amendments. Although the law was passed by Congress for the worthy purpose of fighting sex trafficking, its broad language makes criminals of those who advocate for and provide resources to adult, consensual sex workers and actually hinders efforts to prosecute sex traffickers and aid victims.

EFF strongly opposed FOSTA throughout the legislative process . During the months-long Congressional debate on the law we expressed our concern that the law violated free speech rights and would do heavy damage to online freedoms. The law that was ultimately passed by Congress and signed into law by President Trump was actually the most egregiously bad of those Congress had been considering.

What FOSTA Changed

FOSTA made three major changes to existing law. The first two involved changes to federal criminal law:

• First, it created an entirely new federal crime by adding a new section to the Mann Act. The new law makes it a crime to "own, manage or operate" an online service with the intent to "promote or facilitate" "the prostitution of another person." That crime is punishable by up to 10 years in prison. The law further makes it an "aggravated offense," punishable by up to 25 years in prison and also subject to civil lawsuits if "facilitation" was of the prostitution of 5 or more persons, or if it was done with "reckless disregard" that it "contributed to sex trafficking." An aggravated violation may also be the basis for an individual's civil lawsuit. The prior version of the Mann Act only made it illegal to physically transport a person across state lines for the purposes of prostitution.

• Second, FOSTA expanded existing federal criminal sex trafficking law. Before SESTA, the law made it a crime to knowingly advertise sexual services of a minor or any person doing so only under force, fraud, or coercion, and also criminalized several other modes of conduct. The specific knowledge requirement for advertising (that one must know he advertisement was for sex trafficking) was an acknowledgement that advertising was entitled to some First Amendment protection. The prior law additionally made it a crime to financially benefit from "participation in a venture" of sex trafficking. FOSTA made seemingly a small change to the law: it defined "participation in a venture" extremely broadly to include "assisting, supporting, or facilitating." But this new very broad language has created great uncertainty about liability for speech other than advertising that someone might interpret as "assisting" or "supporting" sex trafficking, and what level of awareness of sex trafficking the participant must have.

As is obvious, these expansions of the law are fraught with vague and ambiguous terms that have created great uncertainty about what kind of online speech is now illegal. FOSTA does not define "facilitate", "promote", "contribute to sex trafficking," "assisting," or supporting" -- but the inclusion of all of these terms shows that Congress intended the law to apply expansively. Plaintiffs thus reasonably fear it will be applied to them. Plaintiffs Woodhull Freedom Foundation and Human Rights Watch advocate for the decriminalization of sex work, both domestically and internationally. It is unclear whether that advocacy is considered "facilitating" prostitution under FOSTA. Plaintiffs Woodhull and Alex Andrews offer substantial resources online to sex workers, including important health and safety information. This protected speech, and other harm reduction efforts, can also be seen as "facilitating" prostitution. And although each of the plaintiffs vehemently opposes sex trafficking, Congress's expressed sense in passing the law was that sex trafficking and sex work were "inextricably linked." Thus, plaintiffs are legitimately concerned that their advocacy on behalf of sex workers will be seen as being done in reckless disregard of some "contribution to sex trafficking," even though all plaintiffs vehemently oppose sex trafficking.

The third change significantly undercut the protections of one of the Internet's most important laws, 47 U.S.C. § 230, originally a provision of the Communications Decency Act, commonly known simply as Section 230 or CDA 230:

• FOSTA significantly undermined the legal protections intermediaries had under 42 U.S.C. § 230, commonly known simply as Section 230. Section 230 generally immunized intermediaries form liability arising from content created by others--it was thus the chief protection that allowed Internet platforms for user-generated content to exist without having to review every piece of content appearing posted to them for potential legal liability. FOSTA undercut this immunity in three significant ways. First, Section 230 already had an exception for violations of federal criminal law, so the expansion of criminal law described above also automatically expanded the Section 230 exception. Second, FOSTA nullified the immunity also for state criminal lawsuits for violations of state laws that mirror the violations of federal law. And third, FOSTA allows for lawsuits by individual civil litigants.

The possibility of these state criminal and private civil lawsuit is very troublesome. FOSTA vastly magnifies the risk an Internet host bears of being sued. Whereas federal prosecutors typically carefully pick and choose which violations of law they pursue, the far more numerous state prosecutors may be more prone to less selective prosecutions. And civil litigants often do not carefully consider the legal merits of an action before pursing it in court. Past experience teaches us that they might file lawsuits merely to intimidate a speaker into silence -- the cost of defending even a meritless lawsuit being quite high. Lastly, whereas with federal criminal prosecutions, the US Department of Justice may offer clarifying interpretations of a federal criminal law that addresses concerns with a law's ambiguity, those interpretations are not binding on state prosecutors and the millions of potential private litigants.

FOSTA Has Already Censored The Internet

As a result of these hugely increased risks of liability, many platforms for online speech have shuttered or restructured. The following as just two examples:

• Two days after the Senate passed FOSTA, Craigslist eliminated its Personals section, including non-sexual subcategories such as "Missed Connections" and "Strictly Platonic." Craigslist attributed this change to FOSTA, explaining "Any tool or service can be misused. We can't take such risk without jeopardizing all our other services, so we are regretfully taking craigslist personals offline. Hopefully we can bring them back some day." Craigslist also shut down its Therapeutic Services section and will not permit ads that were previously listed in Therapeutic Services to be re-listed in other sections, such as Skilled Trade Services or Beauty Services.

• VerifyHim formerly maintained various online tools that helped sex workers avoid abusive clients. It described itself as "the biggest dating blacklist database on earth." One such resource was JUST FOR SAFETY, which had screening tools designed to help sex workers check to see if they might be meeting someone dangerous, create communities of common interest, and talk directly to each other about safety. Following passage of FOSTA, VerifyHim took down many of these tools, including JUST FOR SAFETY, and explained that it is "working to change the direction of the site."

Plaintiff Eric Koszyk is a certified massage therapist running his own non-sexual massage business as his primary source of income. Prior to FOSTA he advertised his services exclusively in Craigslist's Therapeutic Services section. That forum is no longer available and he is unable to run his ad anywhere else on the site, thus seriously harming his business. Plaintiff the Internet Archive fears that it can no longer rely on Section 230 to bar liability for content created by third parties and hosted by the Archive, which comprises the vast majority of material in the Archive's collection, on account of FOSTA's changes to Section 230. The Archive is concerned that some third-party content hosted by the Archive, such as archives of particular websites, information about books, and the books themselves, could be construed as promoting or facilitating prostitution, or assisting, supporting, or facilitating sex trafficking under FOSTA's expansive terms. Plaintiff Alex Andrews maintains the website RateThatRescue.org, a sex worker-led, public, free, community effort to share information about both the organizations and services on which sex workers can rely, and those they should avoid. Because the site is largely user-generated content, Andrews relies on Section 230's protections. She is now concerned that FOSTA now exposes her to potentially ruinous civil and criminal liability. She has also suspended moving forward with an app that would offer harm reduction materials to sex workers. Human Rights Watch relies heavily on individuals spreading its reporting and advocacy through social media. It is concerned that social media platforms and websites that host, disseminate, or allow users to spread their reports and advocacy materials may be inhibited from doing so because of FOSTA.

And many many others are experiencing the same uncertainty and fears of prosecution that are plaguing other advocates, service providers, platforms, and platform users since FOSTA became law.

We have asked the court to preliminarily enjoin enforcement of the law so that the plaintiffs and others can exercise their First Amendment rights until the court can issue a final ruling. But there is another urgent reason to halt enforcement of the law. Plaintiff Woodhull Freedom Foundation is holding its annual Sexual Freedom Summit August 2-, 2018. Like past years, the Summit features a track on sex work, this year titled "Sex as Work," that seeks to advance and promote the careers, safety, and dignity of individuals engaged in professional sex work. In presenting and promoting the Sexual Freedom Summit, and the Sex Work Track in particular, Woodhull operates and uses interactive computer services in numerous ways: Woodhull uses online databases and cloud storage services to organize, schedule and plan the Summit; Woodhull exchanges emails with organizers, volunteers, website developers, promoters and presenters during all phases of the Summit; Woodhull has promoted the titles of all workshops on its Summit website ; Woodhull also publishes the biographies and contact information for workshop presenters on its website, including those for the sex workers participating in the Sex Work Track and other tracks. Is publishing the name and contact information for a sex worker "facilitating the prostitution of another person"? If it is, FOSTA makes it a crime.

Moreover, most, if not all, of the workshops are also promoted by Woodhull on social media such as Facebook and Twitter; and Woodhull wishes to stream the Sex Work Track on Facebook, as it does other tracks, so that those who cannot attend can benefit from the information and commentary.

Without an injunction, the legality under FOSTA of all of these practices is uncertain. The preliminary injunction is necessary so that Woodhull can conduct the Sex as Work track without fear of prosecution.

It is worth emphasizing that Congress was repeatedly warned that it was passing a law that would censor far more speech than was necessary to address the problem of sex trafficking, and that the law would indeed hinder law enforcement efforts and pose great dangers to sex workers. During the Congressional debate on FOSTA and SESTA, anti-trafficking groups such as Freedom Network and the International Women's Health Coalition issued statements warning that the laws would hurt efforts to aid trafficking victims, not help them.

Even Senator Richard Blumenthal, an original cosponsor of the SESTA (the Senate bill) criticized the new Mann Act provision when it was proposed in the House bill, telling Wired "there is no good reason to proceed with a proposal that is opposed by the very survivors it claims to support." Nevertheless, Senator Blumenthal ultimately voted to pass FOSTA.

In support of the preliminary injunction , we have submitted the declarations of several experts who confirm the harmful effects FOSTA is having on sex workers, who are being driven back to far more dangerous street-based work as online classified sites disappear, to the loss of online "bad date lists" that informed sex workers of risks associated with certain clients, to making sex less visible to law enforcement, which can no longer scour and analyze formerly public websites where sex trafficking had been advertised. For more information see the Declarations of Dr. Alexandra Lutnick , Prof. Alexandra Frell Levy , and Dr. Kimberly Mehlman-Orozco .

Two human rights organizations, a digital library, an activist for sex workers, and a certified massage therapist have filed a lawsuit asking a federal court to block enforcement of FOSTA, the new federal law that silences online speech by forcing speakers to self-censor and requiring platforms to censor their users. The plaintiffs are represented by the Electronic Frontier Foundation (EFF), Davis, Wright Tremaine LLP, Walters Law Group, and Daphne Keller.

In Woodhull Freedom Foundation et al. v. United States , the plaintiffs argue that FOSTA is unconstitutional, muzzling online speech that protects and advocates for sex workers and forces well-established, general interest community forums offline for fear of criminal charges and heavy civil liability for things their users might share.

FOSTA, or the Allow States and Victims to Fight Online Sex Trafficking Act, was passed by Congress in March. But instead of focusing on the perpetrators of sex trafficking, FOSTA goes after online speakers, imposing harsh penalties for any website that might facilitate prostitution or contribute to sex trafficking. The vague language and multiple layers of ambiguity are driving constitutionally protected speech off the Internet at a rapid pace.

For example, plaintiff the Woodhull Freedom Foundation works to support the health, safety, and protection of sex workers, among other things. Woodhull wanted to publish information on its website to help sex workers understand what FOSTA meant to them. But instead, worried about liability under FOSTA, Woodhull was forced to censor its own speech and the speech of others who wanted to contribute to their blog. Woodhull is also concerned about the impact of FOSTA on its upcoming annual summit, scheduled for next month.

FOSTA chills sexual speech and harms sex workers, said Ricci Levy, executive director Woodhull Freedom Foundation. It makes it harder for people to take care of and protect themselves, and, as an organization working to protect people's fundamental human rights, Woodhull is deeply concerned about the damaging impact that this law will have on all people.

FOSTA calls into serious question the legality of online speech that advocates for the decriminalization of sex work, or provides health and safety information to sex workers. Human Rights Watch (HRW), an international organization that is also a plaintiff, advocates globally for ways to protect sex workers from violence, health risks, and other human rights abuses. The group is concerned that its efforts to expose abuses against sex workers and decriminalize voluntary sex work could be seen as facilitating prostitution, or in some way assisting sex trafficking.

HRW relies heavily on individuals spreading its reporting and advocacy through social media, said Dinah Pokempner, HRW General Counsel. We are worried that social media platforms and websites may block the sharing of this information out of concern it could be seen as demonstrating a reckless disregard of sex trafficking activities under FOSTA. This law is the wrong approach to the scourge of sex trafficking.

But FOSTA doesn't just impede the work of sex educators and activists. It also led to the shutdown of Craigslist's Therapeutic Services section, which has imperiled the business of a licensed massage therapist who is another plaintiff in this case. The Internet Archive joined this lawsuit against FOSTA because the law might hinder its work of cataloging and storing 330 billion web pages from 1996 to the present.

Because of the critical issues at stake, the lawsuit filed today asks the court to declare that FOSTA is unconstitutional, and asks that the government be permanently enjoined from enforcing the law.

FOSTA is the most comprehensive censorship of Internet speech in America in the last 20 years, said EFF Civil Liberties Director David Greene. Despite good intentions, Congress wrote an awful and harmful law, and it must be struck down.

Instagram has censored the hashtag #stripper and several related keywords that dancers use to find each other and organize online. Now, sex workers are taking to social media to spread the word, decry censorship, and suggest workarounds.

Currently, when you search Instagram for #stripper or #strippers, you are given a preview of just a couple top posts in the category. But if you click through to view the entire hashtag, the following message appears:

Recent posts from #strippers are currently hidden because the community has reported some content that may not meet Instagram's community guidelines.

The same thing was reportedly happening until very recently with a handful of related hashtags, including #yesastripper, #stripperstyle, and #stripperlife--but those appear to be back in action, demonstrating how quickly the sex work community has to adapt and change.

Instagram has yet to comment about the censorship, but is surely because of the recent US internet censorship law FOSTA. This would make Instagram responsible should any posts to #stripper be used to facilitate sex trafficking. As Instagram is unable to vet all such postings for possible traffcking then the only practical option is to ban all posts about sex work.

Update: Unbanned

1st June 2018. See  article from avn.com

By Thursday morning, Instagram had apparently backed down, telling Jezebel that, the hashtag #stripper can again be used and seen by the community in the spirit in which they are intended.

Instagram sent a statement on Thursday effectively rescinding the ban:

The safety of our community is our number one priority and we spend a lot of time thinking about how we can create a safe and open environment for everyone, Instagram said in the statement. This includes constantly monitoring hashtag behavior by using a variety of different signals, including community member reports. Access to recent posts and following hashtags are sometimes restricted based on content being posted with those hashtags. The hashtag #stripper can again be used and seen by the community in the spirit in which they are intended.

SESTA/FOSTA, a bill that president Donald Trump signed into law on April 11 continues to wreak havoc on the lives of sex workers across the United States and abroad.

After getting kicked off of platforms like Craigslist and advertising forums or pre-emptively limiting their digital footprint on social media platforms like Twitter, thousands of sex workers joined an alternative, decentralized social media platform called Switter, where they hoped to safely connect with and vet safe clients.

But on Wednesday, Assembly Four, the organization that developed Switter, announced that its content delivery network provided by the web-hosting company Cloudflare removed and blocked Switter.

At the time of writing, Switter has nearly 49,000 members and more than 376,500 posts, an explosion of activity since the service was launched in late March.

The US authorities have taken control of a classified adverts website used by sex workers to advertise their services.

A notice was posted on Backpage.com's various international front pages late last week to inform visitors.

The site had previously shut down the adult section of its US site, but critics had alleged that prostitution ads had simply moved to other pages.

The authorities claim that some of the adverts were for trafficked sex workers, but such claims are generally hyped up by those campaigning to prohibit adult consensual sex work and rarely amount to any more than a few cases when properly investigated.

The US media has also reported that Backpage's co-founder Michael Lacey was arrested last week and his home raided.

The Californian authorities had previously attempted to close Dallas-based Backpage.com in 2016, when the state prosecuted the business's chief executive and two ex-owners - including Mr Lacey - over claims they had committed pimping offences and generated millions of dollars by hosting sex trade ads. However, the case was dismissed on the grounds that the US's Communications Decency Act said that publishers should not be held responsible for content created solely by their users.

But last month, Congress passed a new law, the Allow States and Victims to Fight Online Sex Trafficking Act (Fosta). It states that websites that facilitate traffickers in advertising the sale of unlawful sex acts should no longer be granted the same protection.

It has been reported that President Trump will sign a Senate-approved version of the act into law this week.

The US has passed laws FOSTA/SESTA that make internet websites responsible for any user content related to sex trafficking. Websites can't distinguish sex trafficking from adult consensual sex work information so have respponded in the only way they can be banning all sex work related content, just in case.

• Cityvibe shut down completely,
• the Erotic Review, the Yelp of the sex trade where men rate their experiences with sex workers, shut down advertisement boards in the United States,
• NightShift shut down to review policies,
• VerifyHim shut down its newsreel,
• Craigslist personals section was shut down,
• Reddit's prostitution-related subreddits were marked private and the site instituted new policies banning the sale of sex acts and drugs,
• Google reportedly deleted its publicly shared commercial sex-related advertising,
• WordPress.com reportedly removed its commercial sex-related advertising sites,
• Paypal reportedly disabled advertised accounts for commercial sex-related payment,
• Rubmaps, Erotic Monkey, and USA Sex Guide had extended maintenance periods over the weekend, suggesting upcoming changes due to the new law,
• Microsoft is issuing new Terms of Service effective May 1st covering all of its platforms, including Skype and Xbox, to urge users not to use the services to share pornography or criminal activity.

The sex trafficking sites Cityxguide and Backpage were reportedly seeing a surge in use by sex workers as the other sites shut down.

Perhaps there's an opportunity for European companies to get a look in and offer replacement services to the US.

As the sun sets on online freedoms, sex workers of all kinds are quietly and swiftly being silenced on social media. Rightfully they're fed up, and are fighting back with a new website Switter, a play on 'sex workers' and 'Twitter', which is an alternative social network that's created by, and for, sex workers.

Switter's creation was initially in response to sites like Twitter, where those in the sex industry have been finding themselves "shadow banned", ie banned by the internet company acting on its own motivations rather than banned by the laws of the land.

Sex workers have always been more or less banned by Facebook but since the new Sosta law, major companies are setting out to censor all sex content as th emores practical or cost effective way of addressing the Sosta requirement to censor sex trafficking content.

Even Skype, the platform that many independent sex workers use to run their private shows, has specified in their latest Code of Conduct that the services not be used for "inappropriate content or material" like "nudity" and "pornography."

The new social network obviously can't be US based so the mantle has fallen to an Australian company, Assembly Four. The software is based on the open source Mastodon and does not have any built-in tracking, doesn't enforce real name policies, and doesn't' ask for any personal information for profiles.

Its early days yet, but the fledging social network says it already has about 8,000 members.

The US has just passed an internet censorship bill, FOSTA, that holds internet companies responsible if users use their services to facilitate sex trafficking. It sounds a laudable aim on paper, but in reality how can say Microsoft actually prevent users from using communication or storage services to support trafficking?

Well the answer is there is no real way to distinguish say adverts for legal sex workers from those for illegal sex workers. So the only answer for internet companies is to censor and ban ALL communications that could possibly be related to sex.

So there have been several responses from internet companies along these lines. Small ad company Craigslist has just taken down ALL personal ads just in case sex traffickers may be lurking there. A Craigslist spokesperson explained:

Any tool or service can be misused. We can't take such risk without jeopardizing all our other services.

Last week, several online porn performers who use Google Drive to store and distribute their adult content files reported that the service had suddenly and without warning blocked or deleted their files, posing a threat to their income streams.

And now it seems that Microsoft is following suit for users of its internet services in the USA. Microsoft has now banned offensive language, as well as nudity and porn, from any of its services -- which include Microsoft Office, XBox and even Skype.

The broad new ban was quietly inserted into Microsoft's new Terms of Service agreement, which was posted on March 1 and which takes effect on May 1 . The new rules also give Microsoft the legal ability to review private user content and block or delete anything, including email, that contains offensive content or language.  The rules do not define exactly what would constitute offensive language.

In theory, the new ban could let Microsoft monitor, for example, private Skype chats, shutting down calls in which either participant is nude or engaged in sexual conduct.

So wait a sec: I can't use Skype to have an adult video call with my girlfriend? I can't use OneDrive to back up a document that says 'fuck' in it? asked civil liberties advocate Jonathan Corbett, in a blog post this week. If I call someone a mean name in Xbox Live, not only will they cancel my account, but also confiscate any funds I've deposited in my account?

denofgeek.com answers some of these queries:

Seemingly aware of the tentative nature of this policy, Microsoft included a couple of disclaimers. First off, the company notes that it cannot monitor the entire Services and will make no attempt to do so. That suggests that Microsoft is not implementing live monitoring. However, it can access stored and shared content when looking into alleged violations. This indicates that part of this policy will work off of a user report system.

Microsoft also states that it can remove or refuse to publish content for any reason and reserves the right to block delivery of a communication across services attached to this content policy. Additionally, the punishments for breaking this code of conduct now include the forfeiture of content licenses as well as Microsoft account balances associated with the account. That means that the company could theoretically remove games from your console or seize money in your Microsoft account.

It was a dark day for the Internet.

The U.S. Senate just voted 97-2 to pass the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA, H.R. 1865), a bill that silences online speech by forcing Internet platforms to censor their users. As lobbyists and members of Congress applaud themselves for enacting a law tackling the problem of trafficking, let's be clear: Congress just made trafficking victims less safe, not more.

The version of FOSTA that just passed the Senate combined an earlier version of FOSTA (what we call FOSTA 2.0) with the Stop Enabling Sex Traffickers Act (SESTA, S. 1693). The history of SESTA/FOSTA -- a bad bill that turned into a worse bill and then was rushed through votes in both houses of Congress2 -- is a story about Congress' failure to see that its good intentions can result in bad law. It's a story of Congress' failure to listen to the constituents who'd be most affected by the laws it passed. It's also the story of some players in the tech sector choosing to settle for compromises and half-wins that will put ordinary people in danger. Silencing Internet Users Doesn't Make Us Safer

SESTA/FOSTA undermines Section 230, the most important law protecting free speech online. Section 230 protects online platforms from liability for some types of speech by their users. Without Section 230, the Internet would look very different. It's likely that many of today's online platforms would never have formed or received the investment they needed to grow and scale204the risk of litigation would have simply been too high. Similarly, in absence of Section 230 protections, noncommercial platforms like Wikipedia and the Internet Archive likely wouldn't have been founded given the high level of legal risk involved with hosting third-party content.

The bill is worded so broadly that it could even be used against platform owners that don't know that their sites are being used for trafficking.

Importantly, Section 230 does not shield platforms from liability under federal criminal law. Section 230 also doesn't shield platforms across-the-board from liability under civil law: courts have allowed civil claims against online platforms when a platform directly contributed to unlawful speech. Section 230 strikes a careful balance between enabling the pursuit of justice and promoting free speech and innovation online: platforms can be held responsible for their own actions, and can still host user-generated content without fear of broad legal liability.

SESTA/FOSTA upends that balance, opening platforms to new criminal and civil liability at the state and federal levels for their users' sex trafficking activities. The platform liability created by new Section 230 carve outs applies retroactively -- meaning the increased liability applies to trafficking that took place before the law passed. The Department of Justice has raised concerns about this violating the Constitution's Ex Post Facto Clause, at least for the criminal provisions.

The bill also expands existing federal criminal law to target online platforms where sex trafficking content appears. The bill is worded so broadly that it could even be used against platform owners that don't know that their sites are being used for trafficking.

Finally, SESTA/FOSTA expands federal prostitution law to cover those who use the Internet to promote or facilitate prostitution.  The Internet will become a less inclusive place, something that hurts all of us.

And if you had glossed over a little at the legal details, perhaps a few examples of the immediate censorship impact of the new law

Immediate Chilling Effect on Adult Content

See  article from xbiz.com

SESTA's passage by the U.S. Senate has had an immediate chilling effect on those working in the adult industry.

Today, stories of a fallout are being heard, with adult performers finding their content being flagged and blocked, an escort site that has suddenly becoming not available, Craigslist shutting down its personals sections and Reddit closing down some of its communities, among other tales.

SESTA, which doesn't differentiate between sex trafficking and consensual sex work, targets scores of adult sites that consensual sex workers use to advertise their work.

And now, before SESTA reaches President Trump's desk for his guaranteed signature, those sites are scrambling to prevent themselves from being charged under sex trafficking laws.

It's not surprising that we're seeing an immediate chilling effect on protected speech, industry attorney Lawrence Walters told XBIZ. This was predicted as the likely impact of the bill, as online intermediaries over-censor content in the attempt to mitigate their own risks. The damage to the First Amendment appears palpable.

• Today, longtime city-by-city escort service website, CityVibe.com, completely disappeared, only to be replaced with a message, Sorry, this website is not available.

• Tonight, mainstream classified site Craigslist, which serves more than 20 billion page views per month, said that it has dropped personals listings in the U.S.

• Motherboard reported today that at least six porn performers have complained that files have been blocked without warning from Google's cloud storage service. It seems like all of our videos in Google Drive are getting flagged by some sort of automated system, adult star Lilly Stone told Motherboard. We're not even really getting notified of it, the only way we really found out was one of our customers told us he couldn't view or download the video we sent him.

• Another adult star, Avey Moon was trying to send the winner of her Chaturbate contest his prize -- a video titled POV Blowjob -- through her Google Drive account, but it wouldn't send.

• Reddit made an announcement late yesterday explaining that the site has changed its content policy, forbidding transactions for certain goods and services that include physical sexual contact. A number of subreddits regularly used to help sex workers have been completedly banned. Those include r/Escorts , r/MaleEscorts and r/SugarDaddy .