WASHINGTON, D.C. – IMPORTANT UPDATE: As the post below about S.3165 was being written, YNOT was informed by counsel to the Woodhull Freedom Foundation and other plaintiffs challenging the constitutionality of SESTA/FOSTA that the appellate court has overturned the district court’s dismissal of Woodhull’s lawsuit. The appellate court’s decision can be read here. YNOT will cover that decision in detail in a separate post.

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As someone who believes the country already has ample laws and regulations, I don’t often find myself writing about a new bill I believe to be a good idea – but S.3165, the “SESTA/FOSTA Examination of Secondary Effects for Sex Workers Study Act,” is one such bill.

Unlike bills proposing new statutes or regulations, this bill merely calls for a study, one designed to “assess the unintended impacts on the health and safety of people engaged in transactional sex, in connection with the enactment of the Allow States and Victims to Fight Online Sex Trafficking Act of 2017and the loss of interactive computer services that host information related to sexual exchange.”

Introduced by Sen. Elizabeth Warren and co-sponsored by Sens. Bernie Sanders and Ron Wyden, the findings section of the bill notes that “While policymakers, representatives of internet platforms, and some advocates have discussed ways to mitigate the use of internet platforms to decrease exploitation, people who consensually trade sex are rarely involved in the drafting of legislation or policies, or in assessing their impact, despite being amongst the populations who are impacted by legislation and policies related to the regulation of these internet platforms.”

To rectify the lack of sex worker input involved in crafting SESTA/FOSTA, S.3165 calls for the study, which would be coordinated by the Secretary of Health and Human Services, to “include interviews with, and surveys conducted by, nonprofit and community-based organizations that provide direct services to people engaged in transactional sex.”

The legislation also lists a series of topics the study should cover, including “changes in access to technology-related harm reduction services, changes in ability to negotiate terms with potential clients, changes in experiences of violence from clients, changes in interactions with law enforcement officials, including changes in police surveillance, stops, and arrests” and “changes in experiences of exploitation.”

The proposed study would also address “impacts on access to economic resources, impacts on homelessness and housing stability, impacts on mental health, impacts on vulnerability to the transmission of HIV and other sexually transmitted infections, changes in participation in other criminalized behavior, disparities in these effects on key populations typically underserved by service providers, specifically LGBTQI+ individuals, people living in rural areas, racial and ethnic minorities, Tribal communities, individuals experiencing exploitation and trafficking, and undocumented and documented foreign nationals,” and “any other impacts on people engaged in consensual, transactional sex, as determined appropriate by the Secretary for inclusion in the study.”

While the bill doesn’t call for decriminalization of sex work or any other changes in law, the call for such a study is good news from the perspective of sex workers and those who assist, counsel and support them – including the legal team challenging the constitutionality of SESTA/FOSTA on behalf of the Woodhull Freedom Foundation and other plaintiffs.

“This bill is a positive development,” said Larry Walters, one of the attorneys representing the Woodhull plaintiffs in the case. “The simple fact that the negative impacts of FOSTA are being publicly discussed is important and may help inform future legislative policy decisions. Online freedom advocates and sex workers warned of the dangerous environment created by FOSTA before the law was passed, however those warnings were ignored. Now that many of those harms have come to pass, we hope that Congress will begin taking them seriously.”

Walters added that given the “substantial dangers facing sex workers post-FOSTA, Congress should at a minimum study the issue.”

“This is particularly true since some lawmakers have suggested following the FOSTA model to address other social issues such as fake news, drugs, or terrorism,” Walters said. “Imposing liability on internet platforms for user behavior will only result in censorship of protected speech, as the platforms attempt to mitigate their own uncertain legal risks. The one lesson we can take from FOSTA is that banning speech about an activity makes it more dangerous, not less dangerous.”

Photo of E. Barrett Prettyman Federal Courthouse by AgnosticPreachersKid via Attribution-ShareAlike 3.0 Unported License. (Image has been resized and cropped.)