FOSTA-SESTA trafficking law used once since 2018: GAO report

Despite criticism from the GAO, federal prosecutors say they aren’t using the controversial law because it is new.
Written by Jonathan Greig, Contributor

A new report from the Government Accountability Office (GAO) has found that the controversial Stop Enabling Sex Traffickers Act (SESTA) and Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) has been used just once since becoming law in April 2018.

The GAO report, issued by GAO director of the Homeland Security and Justice team Gretta Goodwin, said that criminal restitution has never been sought and civil damages have not been awarded at all under section 3 of FOSTA.  

Before being passed by Congress, the laws faced bitter opposition from advocacy groups, some members of the US Justice Department, and even some US Senators, who warned that the law would force sex trafficking and prostitution operations even deeper underground while also making it harder for law enforcement to disrupt groups involved. Others said the law disrupted legitimate avenues for safe sex work and endangered those voluntarily involved in the industry. 

Federal authorities made news in 2018 when they seized backpage.com, the largest online platform for buying and selling commercial sex.

But the GAO now says the closure of backpage.com and the passage of the laws "led many who controlled platforms in this market to relocate their platforms overseas." 

"Additionally, with backpage.com no longer in the market, buyers and sellers moved to other online platforms, and the market became fragmented. The current landscape of the online commercial sex market heightens already existing challenges law enforcement face in gathering tips and evidence," the report said. 

"The July 2020 Polaris and April 2019 childsafe.ai reports state that since backpage.com was removed from the market, there has been fierce competition among platforms for market share, and no single platform has emerged as dominant at the national level. DOJ officials confirmed this assessment," the report added. 

Federal law enforcement agencies are now struggling to gather tips and evidence because online platforms have relocated to platforms overseas, use complex payment systems, and have "increased use of social media platforms," according to the GAO, which spoke with Justice Department prosecutors, FBI officials and many others within the government. 

Those involved in the illegal sex trade are increasingly using "hobby board platforms," according to FBI officials cited in the report. Hobby boards "are designed around preserving legitimacy and reputation, and even have built-in mechanisms whereby users moderate content on the platforms," according to the report, which added that the boards provide more information than what is available on advertising platforms. 

"For instance, in addition to reviews from other buyers, buyers may be able to see a detailed list of services provided and a graphic description of the provider's appearance. Further, provider profiles contain contact information and pricing information with detail that is often banned on advertising sites, such as rates and location, according to the April 2019 childsafe.ai report," the report said. 

"Thus, the childsafe.ai CEO said, although buyers may still shop on advertising platforms, they are increasingly relying on hobby board platforms both to shop and to ensure they will be receiving the services they will be paying for."

The use of "sugar dating" platforms for this purpose has also increased since 2018 because it doubles as a way to service those already involved in the online commercial sex market as well as people who "would otherwise not be," according to the GAO.

Multiple organizations provided information to GAO indicating that the search functions on these sites intentionally provide users with the content they are looking for, with some profiles "clearly insinuating that sex is part of the sugar dating commercial arrangement."

FBI officials also told GAO representatives that they were having issues with information gathering because many social media or messaging platforms are now encrypted, allow for anonymity or have features that allow messages to be deleted instantly. 

As of March, the only case brought forward by the Justice Department under the criminal provision established by section 3 of FOSTA relates to a June 2020 case against the owner of cityxguide.com. The USA v. Martono is still ongoing. 

Federal prosecutors defended not using the law enough by saying racketeering and money laundering charges are more successful in court.

The GAO report questions why more victims have not brought more civil cases under section 3 of FOSTA but explains that representatives from the Human Trafficking Institute said victims "may not want to bring cases years after crimes took place because doing so might open old wounds for which they do not want to relive the trauma." 

"Successfully bringing a civil case could be easier when there has been a related criminal conviction, and there have been no criminal convictions for aggravated violations of section 3 of FOSTA," the report said. 

"Victims and their attorneys may not have the resources to gather sufficient evidence to prove that injury was suffered as a result of an aggravated violation of section 3 of FOSTA."

Dirk Schrader, a vice president at New Net Technologies, told ZDNet the GAO report was another manifestation of a larger issue. 

"There is no common approach to cybercrime in the laws of the countries of the world, and the cross-connects between real-life serious crimes and the cyber world have not been understood nor embedded into such laws," Schrader said. 

"As long as there is no common ground for what is good or bad in the cyber world across the majority of legislations in the world, these kinds of laws enacted in a certain country will always have shortcomings when it comes to enforcement and application. Cybercrime has many facets, and only a few of them can be addressed with a technical solution." 

Others cited a warning issued by US Senator Ron Wyden in 2017 that predicted many of the GAO's findings and said the law's "approach will make it harder to catch dangerous criminals."

Sarah Roth-Gaudette, executive director of the advocacy group Fight for the Future, said the report confirmed the organization's worst fear. She called FOSTA-SESTA a "complete disaster" and said lives were put in danger as people were forced into the darkest corners of the internet.

"And now we learn that the law has only been used once in its three-year history," Roth-Gaudette said. 

"Until we fully study the unintended consequences of amending Section 230, by investigating the impact of FOSTA-SESTA, we cannot pretend that uncareful changes to Section 230 will not harm the most vulnerable and marginalized members of society." 

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