Season 2, Episode 2: Confronting the Backpage Outrage - Interview with an Anti-trafficking Lawyer


Episode

You’re listening to Episode 12 of the Trafficking Dispatch, a biweekly podcast that briefs you on human trafficking issues in a brief amount of time. I’m your host, Emily Wang. This episode will include an interview with a lawyer and professor who specializes in human trafficking cases.

In my personal work as a volunteer at an anti-sex trafficking organization, I have witnessed firsthand a nonprofit working directly with survivors to provide them with professional, educational, medical, and emotional support. However, we shouldn’t only focus on sex trafficking after it happens. Ideally, we should prevent people from becoming sex trafficking victims in the first place. This is where policymaking comes in. Over the years, various policies by the US government have been presented, and some enacted, with the hope of diminishing sex trafficking.

SESTA, or the Stop Enabling Sex Traffickers Act, is one such example. This law was the focus the popular documentary, I am Jane Doe. The documentary outlines SESTA’s goal of penalizing online companies -- most notoriously Backpage.com, a classified advertising website -- for enabling sex trafficking online. The National Center for Missing and Exploited Children, or NCMEC, states that 73% of the sex trafficking tips they receive from the public are related to Backpage. Supporters of SESTA claim that by amending the Communications Act of 1934, they will diminish online sex trafficking by holding online companies responsible for moderating “offensive material” that facilitates sex trafficking. SESTA supporters argue that this act was carefully designed to ensure that websites that host ads for sexual services on their sites, some of them the result of trafficking, can be held responsible and brought to justice.

Stopping sex traffickers is a common goal for many anti-sex trafficking advocates. However, not every advocate agrees on the means to this end. For example, our interviewee for this episode, Alexandra Levy, is not a supporter of SESTA. Professor Levy is a graduate of the University of Chicago Law School, and now teaches at the Notre Dame Law School. She currently teaches Human Markets and Introduction to the American Legal System, and focuses on topics like black markets and censorship. Professor Levy also works for the Human Trafficking Legal Center, where she “directs data research and curates resources for attorneys handling human trafficking matters nationwide” (ND Law).

Before we turn to her, I would like to remind you that the opinions expressed in this interview do not necessarily reflect those of The Trafficking Dispatch team. Our goal is not to tell you what to think, but simply to inform you of both sides of the SESTA debate and other common topics in the anti-trafficking field.

Emily: So Professor Levy, I was hoping you could start off by explaining what commercial sex is so that we can understand how it may or may not be related to sex trafficking.

Alexandra: So commercial, I mean, commercial sex it's an interesting question, how exactly we want to define that. I think, that you know one definition is sex for which payment is excha-- or sex in exchange for payment. Now, the thing is that people have sex for a lot of different reasons, and they do so in exchange for things all the time. People who are not sex workers, or what some people call prostitutes, right? People -- you know you exchange sex for dinner, for love, right? For all these different things. But you know, commercial sex I think that typically has a narrower definition of sex exchanged for cash payment. Something more, you know, just for currency.

Emily: Okay, so commercial sex could be consensual and in some places even legal if the worker is not a minor and is not being coerced into this work. But commercial sex can also include cases of trafficking if the person is a minor or is being coerced. I’m interested in the trafficking side of commercial sex. So, what drew you to research the laws on sex trafficking, and specific topics in this field, such as Backpage?

Alexandra: I became involved in the anti-human trafficking field through an organization that focuses on civil litigation on behalf of trafficking victims. And that work is largely not sex trafficking related but labor trafficking related. So I was involved in the field, and something I began to notice with respect to Backpage is it's really a fixation I think of a lot of advocates. They perceive it as a cause of great evil, cause of sex trafficking. And, I think that that is misplaced. And I think that that strategy of attacking Backpage is ineffective, and in fact, likely to backfire in certain ways. And I became very intrigued with why it is that people are inclined to scapegoat Backpage specifically, the internet more broadly. So, that's how I came to the research about Backpage.

Emily: Oh, ok. So, then, why do you think people are using Backpage as a scapegoat?

Alexandra: I think it's because Backpage, among other places, is a place where trafficking, but also sex work, is made visible. And I think it's a natural inclination to confuse visibility with existence. Right? I mean, we know these things exist, but there's really no reason to believe they exist in greater part on places like Backpage. But we do see it more easily. I think it's also the scapegoat because it just is unsympathetic. Right? It's a big organization, it makes money. You know, and I think, I think humans are inclined to look at a lot of different types of evil, including trafficking, and they want an explanation, and they want somebody -- they want to believe that there's someone that they can fight on the issue and win. And so it's kind of a convenient enemy. It's a more manageable enemy in a sense than looking at the real social, root causes of trafficking, which are complex, which require us to look at all sorts of different areas of life. It's much more exciting to pick one enemy, to find evil in one organization, and to fight that way. So that's why I think Backpage is targeted so much.

Emily: So what you’re saying is, Backpage provides an easy target for people to display their anger about sex trafficking, but it can also simplify the issue. This makes me think of the relationship between sex trafficking and other kinds of trafficking. Because sex trafficking is usually portrayed simply as a struggle between good versus evil entities, it gets covered a lot in the news. But why else do you think that sex trafficking dominates the discussion over other kinds of trafficking?

Alexandra: I do think it definitely dominates the public discourse about trafficking. I think really the reason is because it's lascivious, right? It appeals to a certain interest that people have, the average person has in topics relating to sex and exploitation. It's exciting in that regard. But I think that the way it's talked about -- there's something very familiar going on right now. And it's familiar from about a hundred years ago, when something called the Mann Act was passed in the US. And we seem to have this recurring phenomenon in this country where periods of great social change -- especially with respect to women, to gender, to independence, that kind of thing -- are coupled with impulses to legislate under the guise of sex trafficking. Right? So in 1910 you had, you know 1910, 1920, I guess the decades preceding and succeeding 1910, you had really sudden, very quickly changing norms. You had a lot of mobility and independence for women that wasn't visible, that didn't exist before that. And, what happened was, legislators said, "okay, you know what?" I'm not sure how they calculated this but they said, "one way that we can take control of this situation and reinstitute those norms that are more familiar and comfortable to us is by claiming this is exploitative." Because the public is going to jump on board, right? You say something, and this is true now. You say something is sex trafficking, well of course everybody is going to fight it. Right? Everybody agrees that sex trafficking is bad. The question is, well, what is it? What, you know, what exactly are we willing to regulate in the name of sex trafficking? So, I think that's really… the public is attached to this concept in a way that far exceeds the known incidence of sex trafficking in this country, right? It's -- we talk about it like in an epidemic. Billions, millions, billions of -- the numbers aren't there to substantiate this idea that it's an epidemic. It's just not known to exist on that level, and yet it is a such a compelling -- there's such a compelling narrative there. So that, that's why I think that the public talks about sex trafficking. Now, on the other hand, labor trafficking, you know, that's a less sexy issue. Right? We don't have this whole "evil bad guy" and "innocent victim" narrative. We don't have the same sort of fairytale quality. It's really complex, it forces us to confront tough issues. So you know, there's just sort of less public appeal there.

Emily: So if someone wanted to do something about sex trafficking or any of the less discussed forms of human trafficking, what advice would you have for them?

Alexandra: Well, I think for people who are interested in doing something about human trafficking, I think looking candidly at the labor trafficking side is the place to make the most impact. I think both labor and sex trafficking are the result of a whole complex array of factors, right? We have poverty, vulnerability, immigration policies that cause people to put themselves into very vulnerable situations that alienate people from law enforcement, that prevent them from insisting on their rights. We have this complex array of factors that puts people in those vulnerable positions. And that I think is what needs to be addressed. Fighting trafficking is not, I think, recognizing that the fight against trafficking is not a fight between good guy and a bad guy in some sort of dramatic fairytale-like fight. I think that's the way to be productive about this. I think one thing that people need to do more is to scrutinize the numbers that organizations put out there about the prevalence -- I mean you asked about sex trafficking, so especially about the prevalence about sex trafficking. Examine the data, hold organizations accountable for the data they put out there. You know, and look at the facts, really. I think that's the first step to any sort of advocacy, is look at the facts, determine what needs to be done, address underlying causes. Does that answer your question?

Emily: Yes. So to take the discussion back to our previous conversation on sex trafficking and the internet, some advocates believe that they are addressing the underlying causes of sex trafficking by going after websites like Backpage. Some of these advocates support policies like SESTA, the Stop Enabling Sex Traffickers Act. What is your opinion on SESTA and similar policies?

Alexandra: Okay. I think SESTA is hugely dangerous and problematic for a number of reasons. You know, the premise with SESTA, it's a fairly complex piece of legislation. But I think the people who are most vehemently advocating for it are people who want to be able to file suit against Backpage specifically, but you know, websites in general I guess, on behalf of victims who were trafficked on those websites. What prevents them from filing those suits now is what's called Section 230 of the Communications Decency Act, which was a law passed back in 1996 when the internet was new. So actually what Section 230 says is that platforms can't be held liable as speakers of content posted by others. So that means that if I post something libelous on Facebook about you, you can't sue Facebook for libel, you have to sue me for libel. So this has come into play with, with trafficking and Backpage, because people want to sue Backpage for the speech of third parties, right, they're traffickers. And, you know, what that would do, creating the possibility of liability for third-party speech could have a hugely silencing effect on the internet. I mean, Facebook and Backpage to some extent, these are larger websites. They can afford a certain amount of -- they can afford to defend against lawsuits. But, what you end up having is smaller websites, startup companies, simply won't be able to afford the risk of being sued for speech posted by others. And they also can't afford to scrutinize all the content, make sure there's no illegal content, right? So they're simply going to end up not allowing this free sharing of ideas that's the internet as we know it. So that's the problem with SESTA, uh, is that it's this incursion onto Section 230. Now, more specifically, I think it's an impractical solution because Backpage, as I've said, is not the problem. The problem is traffickers. Backpage brings them to light. But the thing is, is that Backpage, by bringing trafficking to light, also provides great law enforcement opportunities and great opportunities for organizations and individuals to go and recover victims. And this happens all the time, we see this all the time. People finding victims on Backpage and doing something about it. And, you know, forcing people to the darker corners of the internet is not a way to stamp trafficking, right? So, I think it's problematic in a larger way with respect to Section 230 but it's also an impractical solution to trafficking. So that's the issue with SESTA. Do you want me to talk about FOSTA as well, the house version?

Emily: Yes, of course!

Alexandra: Okay, so the, the house's version of SESTA, basically, is called FOSTA. I'm blanking on what the acronym is, but it's something akin to Stop Enabling Sex Traffickers Act. And, it takes a bit of a different approach. It actually doesn't create the civil carve out to Section 230, which means that SESTA's most vocal advocates are not excited about FOSTA, because it's not going to allow them to bring those lawsuits that they want to be able to bring. What FOSTA does, though, alarmingly, and predictably, is that it actually creates a new law, the possibility of criminal sanctions, for what's called promoting the prostitution of another using internet platforms. And, what's predictable and very alarming about this is that they subbed out sex trafficking for prostitution. And this is what we saw happen 100 years ago with the Mann Act. We saw legislation begin and gain popular support by talking about exploitation, totally legitimate, right? We want to get rid of trafficking, everybody agrees on that. But what happens was that, incrementally, it would replace trafficking with sexual behavior that was undesirable. And the thing is, is that, what people sign up for in the first place was the fight against exploitation. But slowly, it was replaced by a fight against unorthodox sexual behavior, we'll say, or undesirable sexual behavior. And that's what we see with FOSTA. And that's very, very alarming. And what it's doing instead is expanding the definition of trafficking to include consensual sex work. And that, that's hugely problematic.

Emily: Well if you’re not in favor of SESTA or FOSTA, do you think there are possible laws that could weaken the market for commercial sex trafficking?

Alexandra: You know, making it illegal does reduce it's incidence to some extent. It makes it more dangerous, it makes -- it creates all kinds of negative effects. Do I think the number of transactions is lower because it's illegal? Yes, probably. Do I think that the character of those transactions and the rise in exploitation that arises from that illegality is worth it? No, not at all.

Professor Levy gave her analyses of policies like SESTA and FOSTA, as well as other topics in sex trafficking. Again, the views of Professor Levy do not necessarily reflect the views of the Trafficking Dispatch team. Listeners are free to stand for or against Professor Levy’s opinions. To form your own opinion, we encourage you to research independently, by watching documentaries on the topic, like I am Jane Doe, and reading up on policies that aim to replace and improve upon SESTA’s intentions. We will also include a link to Professor Levy’s work in the shownotes. As anti-trafficking advocates, we often have the same goals in mind, but we don’t always agree on how to get there. By informing ourselves on both sides of the debate, we can not only strengthen our own beliefs, but effectively engage in tough, yet productive discussions as well. In time, we can create change.

This has been the Trafficking Dispatch with Emily Wang. You can subscribe to our SoundCloud channel and tune into our next episode which will be released on February 11th at 5 pm. Or, if you would like to interact with us before then, you can visit our website at thetraffickingdispatch.com, follow us on our social media accounts – our handles are below – or email us with any questions or suggestions at thetraffickingdispatch@gmail.com. Thank you for tuning into this episode, and we hope you’ll tune in again to join the fight against human trafficking.


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Bonus interview material (not included in the audio interview):
Emily: So, in your article, you mentioned that historically, sexualization happens in dance halls and other socializing places. But now it's turned to internet platforms such as Backpage. What do you think is the role of social media, such as Backpage, in this new form of sexual expression?

Alexandra: Well, I don't think it's really a new form of sexual expression. The role of the internet is to bring something to light, something that has always existed and will always exist -- commercial sex, also sexual exploitation. Also, all different types and colors of sexual experience, right? The variety of human experience has always existed. And what the internet's doing, what dance halls did 100 years ago, is make that more visible to people, more accessible. It's easy to mistake that visibility, the fact that it's newly visible on this scale, with the idea that it's new, which it isn't. It's just there right in front of our eyes in a way it wasn't before.

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