Attempting to Reduce Sex Trafficking and Prostitution by Constraining Online Facilitation

Events occurring early in 2018 suggest that publicly accessible online advertising sites may not be as readily available for use by those seeking to facilitate commercial sex, and consequently, by law enforcement agencies that use them to conduct internet-based reverse stings.  In February and March 2018, a federal bill entitled “Allow States and Victims to Fight Online Sex Trafficking Act of 2017,” or “FOSTA,” was signed by the House and Senate.  Known in a previous form as SESTA (Stop Enabling Sex Traffickers Act), FOSTA amends Section 230 of the Communications Decency Act, which provides tech companies immunity from most liability for publishing third-party content. Two days of FOSTA was signed by the Senate on March 21, Craigslist announced it would drop its “Personal” section (a common platform for commercial sex advertising) and Reddit announced it would remove some of its forums related to sex (Escorts, Male Escorts, Hookers, and SugarDaddy).  On April 6, the U.S. Department of Justice seized the website and raided the home of its co-founder.  Craigslist and Backpage had been the two sites most commonly used to advertise and arrange commercial sex and facilitate sex trafficking. On April 11, the President signed FOSTA into law.

Assuming that Backpage and Craigslist remain either closed or unable to advertise commercial sex, it remains to be seen whether the market will shift to other open source advertising websites, or transfer business to restricted access venues and social media platforms requiring membership fees, or where sex buyers must be invited and registered by providers of commercial sex.  History strongly suggests that if consumer level demand remains strong, the market for commercial sex will adapt and simply find other means of advertising and arranging transactions. Obvious examples include efforts to reduce illicit drug trafficking by focusing efforts on supply and distribution and paying relatively little attention to curbing demand. Skilled law enforcement produces frequent successes interdicting supply and disrupting or dismantling drug trafficking organizations, but consumer demand and strong revenue potential drives innovation and adaptation by suppliers and smugglers.

Prior attempts to reduce human trafficking and sexual exploitation by supply-side tactics have not produced any evidence that that markets were slowed or disabled. For example, when Craigslist responded to public pressure and eliminated its “Erotic Services” section in 2009, the commercial sex market quickly adapted by migrating to Backpage and other websites, and by continuing to use other sections of Craigslist such as those for other kinds of “services” and personal ads and similar online classifieds (e.g., My Scarlet Book, Pounced, Hung Angels, VerifyHim). Through these type of online service sites, people who trade sex can get information about their potential clients—names, email addresses, phone numbers, and usernames, for example—and do some online investigation and verification, and to find out more about their history interacting with people engaged in commercial sex. Of course, the level of skill and access to online information is a reality only at the higher end of the commercial sex market, and unlikely to be used by more distressed and isolated people and victims of sex trafficking, or by pimps and sex traffickers who may be reluctant to leave electronic fingerprints that can be used against them by law enforcement, and those less concerned with safety screening.

If commercial sex advertising on publicly-accessible websites stop carrying listings that facilitate prostitution and sex trafficking, other options available to providers of commercial sex, pimps, and sex traffickers include using client lists and closed networks of customers and child predators, “pop-up brothels” announced to those closed networks, and using texts, emails, Facebook, Instagram, or the communication capabilities of gaming systems.

While it makes sense not to allow online platforms that facilitate sex trafficking to operate unopposed (and the use of Craigslist and Backpage for sex trafficking is beyond dispute), an unintended consequence of shutting down advertising on open platforms is the creation of barriers for law enforcement investigations of child sexual abuse and exploitation.  The open access of these sites makes them readily available for police to post decoy ads to draw sex buyers.  Police could place ads on Craigslist for free, and on Backpage for minimal fees, and with the modest investment of a disposable cellphone would have an untraceable number to field responses and arrest those clearly demonstrating intent to buy sex or abuse children.  For example, the Tulsa OK Police Department had used for years to arrest and pimps and human traffickers as well as sex buyers and child predators, and representatives of the agency said that they would have to adapt their methods now that the website is disabled.

Police can continue to pursue street prostitution with undercover decoys, but that addresses only a small part of commercial sex markets, with most activity having moved online and off the streets.  Street-based stings also only work for targeting the least problematic segment of commercial sex markets:  the sale of sex with adults. “In-person” stings are effective for apprehending those seeking to buy sex from adults, and feasible to conduct using adult female police officers, but do not work for pursuing predators seeking to sexually abuse children. Obvious safety concerns and ethical barriers prohibit using real children as in-person decoys, and using an adult decoy posing as a child for street-level or brothel based operations is not a viable option, since it is easily defended in court (i.e., any defendant can readily claim they thought the decoy was an adult since it was in fact an adult).

The ability to use internet advertising sites has been invaluable for combating child sex trafficking.  It is easy to tailor decoy ads to imply youth, and undercover investigators can state ages under  18 in text or phone discussions with people responding to the ads. Those appearing and demonstrating intent and committing “acts in furtherance” of crime can be prosecuted for attempted child sexual abuse or sex trafficking.  These operations can succeed without suspects ever seeing the subject of the ads in person.

Of course, if commercial sex and human trafficking activity shifts to other  websites and communications technology platforms, it is possible for police to adapt as well.  But if this criminal activity moves to platforms that are more private, restricted, and expensive to access, law enforcement investigations become much more resource intensive, and consequently, will occur  less frequently or will draw resources away from the pursuit of other types of crime. Virtually any  law enforcement agency with internet access can post decoy ads online and arrange to meet prospective buyers, and without warrants can generate evidence supporting successful prosecution of child sex trafficking cases.  Hacking private websites or infiltrating restricted online spaces and networks requires specialized skills, greater resource commitments, and the need for search warrants.  These are not insurmountable barriers, but vastly reduce the range of police agencies with the in-house skills and resources to conduct these operations, and will reduce the frequency of operations for agencies with the skills.

It is clear that online advertising and facilitation of commercial sex has continued after FOSTA’s passage and the closure of Backpage, and police can continue to use those platforms to combat consumer demand using some of the remaining websites. For example, on April 18, 2018, six men were arrested in a reverse sting conducted by police in Warren, Ohio.  The web-based operation targeted individuals seeking to buy sex through use of an ad posted on an unnamed social media website.  Investigators participated in text conversations, and prospective buyers were directed to meet at a prearranged location in the city, where they were arrested and their identities and charges disclosed to news outlets.  It is too soon to tell whether the remaining websites that advertise sex will continue to do so.  A better sense of the impact of FOSTA will be discerned if and when online advertisers are successfully prosecuted and held liable for facilitating commercial sex or sex trafficking.

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