Instagram’s controversial Terms of Service change in December 2020 was the shot heard by sex workers around the world.[1] The updated terms included a prohibition of sex work promotion, links to pornographic websites, and even “excessive cleavage” from their platform.[2] Users who violated these terms risked having their accounts deleted by Instagram.[3] This content limitation directly affected both online and in-person sex workers, especially if their profiles linked to an adult website.[4] Instagram, now Meta, edited its Adult Sexual Solicitation community standard in 2024 to allow for sex worker rights advocacy, but “draw[s] the line” when content facilitates “commercial sex acts between adults.”[5] This language purposefully envelops all work under the sex work umbrella, including adult content creation, stripping, camming, domination, and full-service sex work (FSSW).[6] Regardless of whether they are engaged in criminalized FSSW,[7] all sex worker creators are considered facilitators of commercial sex by existing as sex workers online.[8] Meta’s rationale behind its community standards is to avoid facilitating “trafficking, coercion and non-consensual sexual acts.”[9] Meta’s community standards apply to all users, even in countries like Belgium, Germany, Brazil, and New Zealand that either legalized or decriminalized FSSW.[10] Through Meta, United States policy reigns globally. To prevent the adverse effects of global impact of sex work criminalization in the U.S., the Committee on the Elimination of Discrimination Against Women must amend the Convention on the Elimination of Discrimination Against Women (CEDAW)[11] to separate anti-trafficking measures from anti-sex work measures, recognize sex work as work entitled to protective measures under international law, and mandate state parties to retract sex work discriminatory policies per CEDAW’s clarified obligations.
Signed into law in 2018 in the United States with bipartisan support, Public Law 115–164, or the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA/SESTA), aims to hold both online traffickers and the websites they use equally accountable for sex trafficking.[12] This law targets websites that advertise sex work, stating “websites that promote and facilitate prostitution 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.”[13] Senator Rob Portman, who introduced the bill, describes FOSTA/SESTA, as “. . . a very narrowly crafted statute, it deals with sex trafficking only . . . you have to be knowingly involved in supporting, engaging in sex trafficking.”[14] However, the language of the statute indicates otherwise. FOSTA/SESTA criminalizes websites engaged in the “facilitation of prostitution,” which expands the scope of the statute by implicating sex workers,
FOSTA/SESTA reflects the paternalistic nature of women’s rights in international human rights law. The United Nations addressed women’s rights violations in CEDAW in 1979.[22] Despite the U.S. signing but never ratifying CEDAW, it serves as a protocol for the UN’s interpretation for effective implementation of women’s rights.[23] Parties to CEDAW, are obligated under Article 6 to “take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.”[24] The conflation of sex trafficking with FSSW in CEDAW and FOSTA/SESTA reflect sentiments regarding sex working women that existed before the establishment of the UN, where “[a]nti-trafficking conventions made women’s consent to working in the sex industry irrelevant, thereby treating all sex workers as victims, needing rescue and rehabilitation.”[25] Under CEDAW, and now under FOSTA/SESTA, all women involved in commercial sex, whether consensual or not, are regarded as victims yet punished for their victimhood by having their online platforms, safeguards, and income security taken away.[26]
To combat FOSTA/SESTA’s global reach in states that decriminalized or legalized sex work, CEDAW must firstly be amended to separate anti-trafficking measures from anti-sex work measures in Article 6 and recognize sex work as work entitled to protective measures under international law, including decriminalizing websites that facilitate FSSW advertising. The International Covenant on Economic, Social and Cultural Rights affirms the right of all people to pursue the work they freely choose.[27] Sex work is a form of labor freely chosen by sex workers in the absence of force, fraud, and coercion. Policies that conflate sex work with sex trafficking, defined by lack of choice,[28] limits the rights of sex workers to work. Secondly, the committee should mandate state parties to retract sex work discriminatory policies per CEDAW’s clarified obligations. As of 2023, the United Nations Working Group on discrimination against women and girls released a report calling for the full decriminalization of voluntary adult sex work,[29] which reflects the policy position of sex worker rights organizations globally, including Sex Workers Outreach Project and Sex Worker Education and Advocacy Task Force.[30] Amending CEDAW to acknowledge sex work as work and thus a protected form of labor can challenge U.S. tech policy’s imperialist impact. FOSTA/SESTA’s international prohibition on sex work advertising websites based in the U.S. pushed sex workers in decriminalized states, like New Zealand, from working independently online into brothels and reduced their income, leading them to see clients they otherwise would not accept.[31] States that decriminalize sex work under CEDAW will be obligated to protect sex workers from discriminatory policy, including Meta’s community standards that enforce the borderless reach of FOSTA/SESTA. Decriminalizing online platforms used by sex workers to advertise and screen clients is necessary for sex workers in states that decriminalized sex work to fully enjoy their right to work.
[1] Carolina Are, New Terms of Use On Instagram: The End of Nudity?, Blogger on Pole (Oct. 24, 2024, 10:45PM), https://bloggeronpole.com/2020/11/terms-of-use/.
[2] Id.
[3] Id.
[4] Id.
[5] Adult Sexual Solicitation and Sexually Explicit Language, Meta (Oct. 24, 2024, 10:49PM), https:// transparency.meta.com/policies/community-standards/sexual-solicitation/?source=https%3A%2F%2Fwww.facebook.com%2Fcommunitystandards%2Fsexual_solicitation [Hereinafter Meta Community Standards].
[6] See Understanding Sex Work in an Open Society, Open Society Foundations (Oct. 24, 2024, 11:01PM), www.opensocietyfoundations.org/explainers/understanding-sex-work-open-society (defining sex work as involving “consensual sexual services or erotic performances,” which includes other types of work other than full-service).
[7] 10 U.S.C.S. § 920c.
[8] Olivia Snow, The ‘Mommy Goddess and the Mass Reporting of Sex Workers on Instagram, Jezebel (Oct. 24, 2024, 11:14PM), https://www.jezebel.com/the-mommy-goddess-and-the-mass-reporting-of-sex-workers-on-instagram#:~:text=Anti-sex%20activists%20are%20picking%20off%20sex%20workers%20on%20Instagram—and%20Instagram, (discussing how a porn actress was mass reported and banned from Instagram when anti-sex work users mass reported her account after she advertised her involvement in a documentary about PornHub).
[9] Meta Community Standards, supra note 3.
[10] The Facebook Community Standards apply the same to everyone, everywhere, Meta (Oct. 24, 2024, 10:52PM), https:// transparency.meta.com/policies/improving/policies-apply-to-everyone-everywhere; Srdjan Ilic, 12 Countries Where Prostitution Is Legal 2024: Decriminalization vs. Legalization, Southwest Journal (Nov. 07, 2024, 3:01PM), https:// www.southwestjournal.com/world/countries-where-prostitution-is-legal/.
[11] G.A., Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979, [Hereinafter CEDAW].
[12]Allow States and Victims to Fight Online Sex Trafficking Act of 2017, Pub. L. No. 115-164, § 2, 132 Stat. 1253, 1253 (2018) [Hereinafter FOSTA/SESTA].
[13] Id.
[14] Senator Rob Portman, On MSNBC, Portman Highlights How New SESTA Law Will Help End Online Sex Trafficking, YouTube (Oct. 24, 2024, 10:12PM), https://www.youtube.com/watch?v=LxGGX5Mj9Hg.
[15] FOSTA/SESTA, supra note 2, at § 3.
[16] Mann Act, 18 USCS § 2421A (2022) (prohibiting the interstate transportation of a person to engage in illegal sexual activity, including prostitution and sex trafficking).
[17] Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, § 103, 114 Stat. 1464, 1466-1469 (2000) [hereinafterTVPA].
[18] Prostitution, Black’s Law Dictionary (12th ed. 2024).
[19] Danielle Blunt and Ariel Wolf, Erased: The Impact of FOSTA-SESTA & the Removal of Backpage, Hacking Hustling, 3-4 (2020), https://hackinghustling.org/wp-content/uploads/2020/02/Erased_Updated.pdf.
[20] Albert et al., FOSTA in Legal Context, 52.2 Col. Hum. Rts. L. Rev. 1085-158 (2021).
[21] Blunt and Wolf, supra note 16, at 21.
[22] CEDAW, supra note 11.
[23] See id.; See also Ratification of 18 Human Rights Treaties, United Nations Human Rights Office of the High Commissioner (Nov. 07, 2024, 8:50PM), https://indicators.ohchr.org.
[24] Supra note 11, at art. 6.
[25] Dianne Otto, Women’s Rights, in International Human Rights Law 311, 311-12 (Daniel Moeckli, Sangeeta Shah & Sandesh Sivakumaran eds., 2018) (stating that anti-trafficking conventions regarding sex working women reflect paternalistic pre-1945 sentiments).
[26] Blunt and Wolf, supra note 16, at 18.
[27] International Covenant on Economic, Social and Cultural Rights art. 6(1).
[28] TVPA, supra note 15.
[29] Erin Kilbride, Landmark UN Report Calls for Sex Work Decriminalization, Human Rights Watch (Oct. 27. 2024, 7:00PM), https:// www.hrw.org/news/2023/11/28/landmark-un-report-calls-sex-work-decriminalization.
[30] See Christa Daring, Suggested Policy Position on Sex Work and Decriminalization, SWOP-USA (Oct. 27. 2024, 7:03PM), https://swopusa.org/blog/2018/03/25/swop-usa-suggested-policy-position-on-sex-work-decriminalization/. See Sex Worker Education and Advocacy Taskforce Campaigns for Legal Reform in South Africa, Open Society Foundations (Oct. 27, 2024, 7:07PM), https:// www.opensocietyfoundations.org/newsroom/sex-worker-education-and-advocacy-taskforce-campaigns-legal-reform-south-africa.
[31] Erin Tichenor, ‘I’ve Never Been So Exploited’: The consequences of FOSTA-SESTA in Aotearoa New Zealand, 14 Anti-Trafficking Rev. 99, 207 (2020) (finding that transgender, migrant, and racial minority sex workers were most likely to experience income insecurity as a result of the FBI’s closing of advertising website, Backpage).
