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What It Looks Like When the President Asks People to Snitch on Neighbors

By Daniel Rivero and Brendan O’Connor

In April, the Trump Administration launched what it called the Victims of Immigration Crime Engagement (VOICE) hotline, with a stated mission to “provide proactive, timely, adequate, and professional services to victims of crimes committed by removable aliens.” But internal logs of calls to VOICE obtained by Splinter show that hundreds of Americans seized on the hotline to lodge secret accusations against acquaintances, neighbors, or even their own family members, often to advance petty personal grievances.

The logs—hundreds of which were available for download on the Immigration and Customs Enforcement web site despite containing extremely sensitive personal information—call to mind the efforts of closed societies like East Germany or Cuba to cultivate vast networks of informants and an atmosphere of fear and suspicion.

The reports rarely involve the sort of dangerous criminality that Donald Trump campaigned against. Despite the VOICE office’s statement that the service “is not a hotline to report crime,” callers are using it to alert Immigration and Customs Enforcement (ICE) officers to minor infractions, or merely to the presence of people they suspect of being undocumented immigrants.

On many of the calls, the only violation the informant offers the authority is that the people exist. On June 19, a caller filed the following report:

Caller wanted to report his next door neighbor. Caller claims his next door neighbors are undocumented and are from South America. Caller claims two boys’ ages 14 and 15 reside there along with an adult male. Caller provided his next door neighbor’s address as [street and number redacted by Splinter], St. Augustine, FL [ZIP code redacted by Splinter].

The summaries are drawn from two spreadsheets documenting incoming calls to the VOICE hotline. The first, provided to Splinter by ICE in response to a Freedom of Information Act request, covers the first two weeks of the hotline’s operation in April. It was redacted by ICE to protect the privacy of callers and subjects.

But after conducting Google searches for some data in that spreadsheet, including local police report numbers provided by callers, we were able to find a second spreadsheet, covering April to mid-August, hosted on the ICE web site. That spreadsheet appears to have been partially redacted to prepare it for release under the FOIA, but two columns containing intimate personal details—names, cell phone numbers, alleged crimes, addresses, and Social Security numbers—of both callers and the alleged undocumented immigrants they were calling about remained completely unredacted and publicly available. In several cases, the details would make it possible for people to figure out who informed on them.

Brendan Raedy, an ICE spokesperson, declined a request to speak on the phone about the logs or the publication of private data. In response to a series of emailed questions, he wrote only: “It’s important to know that ICE/VOICE is not using victim personal information to develop leads for immigration enforcement. Callers are not even asked for their status. Information is shared with Victim Assistance Specialists to help when and where they can.”

Together, the logs are a grim running diary of a country where people eagerly report their fellow residents to the authorities, or seek to bring the power of the immigration police to bear on family disputes. On May 25, 2017, one man called to say that his stepson was violating a restraining order by parking his car near his house. He didn’t want his wife to know that he was trying to get her son deported:

Caller stated the illegal alien (step-son) is a drug addict, unemployed, homeless and living in his car that he parks at [address redacted by Splinter]. Caller stated the subject is a danger to society and wants to know why he was not taken into ICE custody. Caller stated the subject recently missing his court hearing [number and date redacted by Splinter] and is now in probation violation. Caller provided A number, name [redacted by Splinter], DOB, and COB. Caller stated he does not want his wife to know and prefers not to be reached at his cell number redacted that he shares with her.

Other complaints likewise focused on family strife:

Caller requested to report her mother-in law and sister-in law. Caller stated these individuals came to the U.S. as tourists and stayed in the U.S. in order to get legal status.

Caller requested to report his ex wife that is undocumented as an overstayed on her visa.

One caller went so far as to provide the date and location of an upcoming divorce hearing at which the accused undocumented immigrant was scheduled to appear.

A number of calls, in line with the VOICE program’s mission to assist crime victims, recount domestic violence committed by undocumented immigrants. But there are also multiple calls from people hoping to turn ICE enforcement against the people who have accused them of domestic violence:

Caller requested to report an undocumented alien who is accusing him of domestic violence in order to obtain legal status. Caller claims subject is his legal wife.

Caller claimed subject made false accusations of domestic violence towards the caller. Caller claimed subject is trying to claim Asylum through the false accusation of domestic violation in order for subject to stay in the U.S.

Javier H. Valdés, the co-executive director of the immigration-rights group Make the Road New York, wrote in an email to Splinter that the logs demonstrate VOICE was little more than an attempt to sow fear and suspicion of immigrants. “Months after the creation of the VOICE program, it’s clear that it’s exactly what we feared it would be,” he wrote. “A sinister public relations ploy to paint immigrants as criminals and foster fear in our communities, all with the despicable goal of tearing apart our families. The program should be immediately ended.”

Publicly, the VOICE hotline is not supposed to be a crime-reporting tool at all, but a means of connecting victims and witnesses in existing cases with support services and with more information about the people accused. But internal training materials for the hotline, obtained by Splinter, contradict that mission statement, saying that the hotline “will provide a means for persons to report suspected criminal activity.”

Callers were often referred to the Homeland Security Investigations tipline. In several cases, VOICE employees contacted a field office to relay information gleaned from the calls, records show.

In the first two weeks of the program, from April 26 to May 10, the logs show that the call center handled 1,940 calls from across the country. Most were pranks, or in the bureaucratic words of the record keepers, “concerned citizens,” who unleashed streams of profanity or talked about green aliens until the operator hung up.

In 66 calls, the caller mentioned a criminal suspect, and VOICE staff were able to match that suspect to the Department of Homeland Security’s database. More than twice as many calls—137 entries—involved a caller reporting someone whose information did not appear in the database.

Absence from the database could mean that subject of the call is undocumented but has not yet come into contact with the agency, or that the person is in the United States legally.

Tipsters often provided claims that were unverifiable, incorrect, or vague. The incompletely redacted spreadsheet of calls on the ICE website, which included identifying information for the people being accused and for the callers themselves, showed how haphazard the accusations could be.

One caller, for instance, complained that her granddaughter was living in Florida with an undocumented immigrant, and further alleged that the immigrant was a sex offender. The suspect, the caller said, was in the process of receiving United States citizenship. Public records for the unredacted address in the call log did identify a middle-aged man with a Latino name living there, but not one who was listed on a sex-offender registry.

Beyond family strife, callers also sought to involve ICE in business disputes. One caller made an immigration complaint against an employee on a work visa at a ballroom-dance studio who was allegedly trying to start her own studio and lure customers away. Callers accused undocumented people of working at painting companies, a drywall installer, a demolition firm, a luxury resort, a foundry, a dairy, an alehouse, a Subway, and an “adult entertainment club.” They provided addresses, names, and sometimes even specific working hours.

Some people appeared to go to great lengths to deliver information to the feds. One caller, seeking to report a pair of supposedly undocumented workers, provided full names and aliases for both of them, along with the make, color, and license plate of the car the used, and the facts that they worked on a farm and attended a particular Planet Fitness gym “in the afternoons.” Nowhere did the report include any claims of criminal activity beyond the alleged use of false documents.

Another caller claimed to have overheard “a neighbor mention during an argument that subject (1)…has an order of removal with immigration.” The subject’s boyfriend, the caller said, was also undocumented, and the caller supplied the address where the two lived.

Others sought to inform on complete strangers:

Caller stated that he wanted to report (2) two people who are using EBT cards to purchase wine and steak in Sacramento (CA). Caller did not have any information on the subjects. Caller wanted to know if he can make a citizens arrest if he sees this happening again.

Another provided precise GPS coordinates for a “camp” of allegedly undocumented people in Nevada.

Even as Homeland Security employees were assembling these files of sensitive information, they were leaving a spreadsheet of it accessible online. Some who had called the hotline were alarmed, when contacted by Splinter, to learn their information had been left exposed.

Jerrold Kestenberg, of Nahant, Massachusetts, called the line to give a report about an undocumented Italian neighbor who he says attacked his girlfriend. His girlfriend’s name was published in the call log, along with the address of the neighbor and Kestenberg’s phone number. “I’m not too happy about it, shit, I mean, I don’t think she wanted that. I didn’t want them to put it out there, just look into it,” he said when we called him.

“I don’t think they got their shit together over there to be honest, pardon my English,” he said about ICE. Had he heard back from anyone about his initial call? “Nobody ever called me back,” he said. “Nobody.”

Some people on the spreadsheet said they had gotten callbacks from ICE. A California woman who asked to remain anonymous contacted the hotline after she said her undocumented Mexican husband sexually molested her 11-year-old daughter. She told Splinter that ICE has contacted her via email about her call, but she said she did not understand how her phone number and police report information were published online. “That’s news to me, they sure didn’t tell me that,” she said. “They told me it was private.” Her husband’s name and work address were also published, and she said she worries for her safety if he finds out that she filed a report with ICE.

A prominent victims’ rights group condemned the fact that the information was publicly viewable.

“If you’ve got information that was efficient enough to allow any member of the public to locate and contact a victim of crime, that system ought to be shut down. That’s a phenomenal security breach,” said Richard Barajas, a former federal judge who is the Executive Director of National Organization for Victim Assistance. “Safeguards must be in place to protect the victim of the crime primarily, and also for simply criminal justice safety, in the name and location of the perpetrator.”

At press time, more than three days after we had notified an ICE spokesperson about the personal information in the exposed spreadsheet and 22 hours after we had sent them the specific link to it, the information was still available on the agency’s web site.

UPDATE (Oct. 4): Several hours after this story was published, the entire online library of FOIA documents from ICE—all the public records that the agency has ever released—went offline. An error message informs users that the library “is temporarily unavailable while it undergoes review.” A link to the unprotected spreadsheet still appears in Google results but the link currently leads to a “File not found” message.

Florida Lawmaker to Sex Workers: They’re Criminals, I Don’t Need to Listen

By Tracy Clark-Flory

On Tuesday, two sex workers spoke before a Florida subcommittee considering a pair of bills that would ostensibly target sex trafficking. They spoke out about how the bills could harm them and urged lawmakers to listen to sex workers, only to then be promptly dismissed as criminals by one of the bill’s sponsors.

The bills would require hotel staff to be trained in identifying signs of trafficking and “create a mandatory 10-day jail sentence for anyone convicted of soliciting a prostitute and an additional 30-day sentence if the person solicited is a human trafficking victim,” according to the Associated Press. The bills follow New England Patriots owner Robert Kraft’s charges for soliciting prostitution following a massage parlor bust.

It’s so often the case that legislation targeting sex trafficking (see: FOSTA-SESTA), can have a devastating impact on consensual sex workers. Christine Hanavan of the Sex Workers Outreach Project told the committee, “Criminalization is the root cause of trafficking. Prohibition did not end drinking and it can’t end sex work. What it can do is make it more dangerous.” Research has borne this out, finding that criminalization is linked with greater violence, sexually transmitted infections, and mental health issues among sex workers.

“I am your neighbor. I am your coworker. I am the person in the grocery store,” said 56-year-old Grace Taylor during her committee testimony. “I am also a consensual sex worker, and as such, I am the first line of defense in helping you find those who have been trafficked.” Kristen Cain, a fellow sex worker, told the committee, “Sex work does not equate to human trafficking. Conflating the two is dangerous for both victims of human trafficking and sex workers,” she said. “Listen to sex workers. We are here to help you.”

But then lawmakers did the opposite.

Not only were the bills approved, but Republican Rep. Heather Fitzenhagen, one of the bills’ sponsors, told the committee, “In case it was lost on you, a consensual sex worker, a.k.a. a prostitute, is committing a crime,” she said. “It is not my intent to work with them moving forward.”

After the meeting, Taylor pointed out that she is a dominatrix, which is not illegal. Not that it should matter, but it shows how well Fitzenhagen is listening.

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Sex workers come out against human trafficking bill

By Lawrence Mower

Last session, Sen. Lauren Book’s effort to combat human trafficking was thwarted by Disney and other hotel groups.

This session, the Plantation Democrat has their support. But she now has an unexpected opponent: sex workers.

On Tuesday, two women who said they were consensual sex workers said the bill unfairly targets them, rather than people who are being trafficked for sex.

“Sex work does not equate to human trafficking,” said Kristen Cain, who works with the Sex Workers Outreach Project in Tampa Bay, a nonprofit aimed at eliminating stigmas in the sex industry. “The methods implemented by these laws target my friends and my clients. They target me.”

Grace Taylor, who lives in Clearwater, told lawmakers that they need to listen to sex workers, even though it’s illegal in Florida.

“I am your neighbor. I am your coworker. I am the person in the grocery store,” Taylor, 56, said. “I am also a consensual sex worker, and as such, I am the first line of defense in helping you find those who have been trafficked.”

Their unusual testimony in the House Criminal Justice Subcommittee prompted the House bill sponsor, Rep. Heather Fitzenhagen, to accuse them of trying to “malign this good bill,” and she said she would no longer be working with them.

“In case it was lost on you, a consensual sex worker, A.K.A. a prostitute, is committing a crime,” the Fort Myers Republican told her fellow representatives. “It is not my intent to work with them going forward.”

The two bills by Fitzenhagen (House Bill 851) and Book (Senate Bill 540) would require police, hotel workers and massage parlor employees to be trained to recognize signs of human trafficking.

Originally, the bills would also create a database of people accused of soliciting prostitution, but it was taken out of the House bill on Tuesday.

The database would shame consensual sex workers, and the training would likely result in recognizing all sex workers rather than trafficking victims, according to Christine Hanavan, a social worker and community organizer for Sex Workers Outreach Project in Orlando.

“Sex workers should be your best resource for fighting violence and exploitation in the sex industry,” Hanavan said. “We need to stop going after men who pay for sex and go after the men who think they can just take it.”

Book, who was watching, met with them afterward. They told her that they wanted the bill to include immunity from reporting men and women that they believe are being trafficked. They also wanted sex workers to be involved in crafting training.

Dominatrix tells Florida lawmakers: Don’t hurt consensual sex work

A professional dominatrix urged Florida lawmakers Tuesday not to hurt consensual sex workers as the Legislature considers bills addressing human trafficking.

“I am your neighbor, I am your co-worker, I am the person in the grocery store. I am also a consensual sex worker,” said Grace Taylor of Pinellas County, who said she began work as a dominatrix about 20 years ago so she could afford to send her sons to Philmont Boy Scout Ranch. “And as such, I am your first line of defense in helping you find those who have been trafficked.”

She and fellow sex-worker Kristen Cain told the House Criminal Justice Committee there’s a difference between people who choose to work in the sex industry and those forced into the trade.

They testified before the committee approved two bills aimed at addressing the problem of human trafficking — an issue that’s gained more attention after New England Patriots owner Robert Kraft was charged with paying for sex as part of a Florida investigation into massage parlor prostitution.

“Sex work does not equate to human trafficking. Conflating the two is dangerous for both victims of human trafficking and sex workers,” Cain said. “Listen to sex workers. We are here to help you.”

A bill sponsored by Republican Rep. Heather Fitzenhagen would create a statewide council to focus on human trafficking and require massage parlor employees and hotel front desk and housekeeping staff be trained to recognize signs of human trafficking.

A second bill sponsored by Republican Rep. Toby Overdorf would create a mandatory 10-day jail sentence for anyone convicted of soliciting a prostitute and an additional 30-day sentence if the person solicited is a human trafficking victim.

Both bills were approved. Overdorf mentioned the investigation that snared Kraft and about 300 other men in arguing for his bill. He said he hopes his bill will reduce demand for paid sex.

“Mr. Kraft’s unfortunate choices certainly have raised the awareness of what human trafficking is in the state of Florida and how prevalent it is throughout our entire society,” Overdorf said after the meeting. “It’s a scourge that’s really affecting the state of Florida.”

But Christine Hanavan of the Sex Worker Outreach Project told the committee that laws aimed at punishing men who seek out prostitutes don’t work.

“Criminalization is the root cause of trafficking. Prohibition did not end drinking and it can’t end sex work. What it can do is make it more dangerous,” said Hanavan, who isn’t a sex worker but advocates for them.

“Sex workers should be your best resource for fighting violence and exploitation in the sex industry. We need to stop going after men who pay for sex and go after the men who think they can just take it.”

But despite the offers to help, Fitzenhagen said she wasn’t interested.

“In case it was lost on you, a consensual sex worker, a.k.a. a prostitute, is committing a crime,” Fitzenhagen told the committee. “It is not my intent to work with them moving forward.”

After the meeting, Taylor said she isn’t a prostitute, but rather dresses up to create a fantasy for her clients.

“Professional dominatrix is not illegal,” Taylor said.

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Salesforce ‘among the vilest of rogue companies’ for helping Backpage sex traffickers, pimps: lawsuit

By Ethan Baron, The Mercury News

As the notorious website Backpage was under fire by legislators and the public over alleged prostitution ads linked by critics to sex trafficking of minors, San Francisco software titan Salesforce stepped in to save the site and help it grow, a new lawsuit claims.

“Salesforce knew the scourge of sex trafficking because it sought publicity for trying to stop it,” the lawsuit filed by 50 “Jane Does” alleged. “But at the same time, this publicly traded company was, in actuality, among the vilest of rogue companies, concerned only with their bottom line.”

The suit claims Salesforce sold a customized database to Backpage that facilitated prostitution and sexual exploitation.

A Salesforce spokesperson said the company doesn’t comment on pending litigation, but said, “We are deeply committed to the ethical and humane use of our products and take these allegations seriously.”

The group of 50 plaintiffs included females sold for sex as minors via Backpage, the suit claimed. The plaintiffs include one female each from East Bay cities Antioch, Martinez and Pittsburgh, Calif., plus one from Sacramento, one from Fresno, and four from elsewhere in California, according to the suit.

“Human beings – many more than just these 50 – were raped and abused,” alleged the suit filed in San Francisco County Superior Court. Each of the 50 were “sexually exploited through the use of Backpage,” and traffickers, pimps and johns communicated with one another on the website, the suit alleged.

The suit claimed Salesforce conspired with Backpage “to assist human traffickers’ sexual exploitation and human trafficking of minors.”

The software giant’s work for Backpage started in 2013, around the time 47 U.S. state attorneys general called the website a “hub of human trafficking” and demanded it be shut down, the suit filed Monday claimed.

“Salesforce stepped in at the same time to help Backpage survive and even grow,” the suit alleged, adding that Salesforce had boasted on Twitter that its technology was being used to combat sex trafficking.

“Salesforce designed and implemented a heavily customized enterprise database tailored for Backpage’s operations, both locally and internationally. With Salesforce’s guidance, Backpage was able to use Salesforce’s tools to market to new ‘users’ – that is, pimps, johns, and traffickers – on three continents.”

Money was at the root of Salesforce’s work for Backpage, the suit alleged. “This profit motivation led to Salesforce continuing its relationship with Backpage and facilitating Backpage’s growth despite knowing what Backpage was being used for, that several Backpage officials were indicted for facilitating trafficking, and that (a) Senate Subcommittee had declared Backpage knowingly facilitated the sex trafficking of minors,” the suit claimed.

Salesforce, headed by CEO Marc Benioff, managed Backpage’s database of pimps and traffickers, and supplied a cloud database where Backpage stored details of its sex-trafficking business, the suit claimed. The website, described in the suit as “the leading online marketplace for commercial sex and sex trafficking” has been seized and shut down by federal authorities, and its former CEO pleaded guilty last year to federal charges including conspiracy and money laundering. Emails about the lawsuit from this news organization to two people who formerly spoke for Backpage did not produce any response.

The suit accuses Salesforce of sex trafficking, negligence and conspiracy, and seeks unspecified damages for the Jane Does, whose identities were concealed to protect their privacy and safety, according to the suit.

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Online Escorts Advertising Online Escorts – Analyzing the Legal Issues

By: Lawrence G. Walters

Online escort directories have proliferated in recent times. Although many of the legal issues pertaining to operation of an adult website are equally applicable to online escort venues, such as §2257 compliance, copyright, etc., a host of unique legal concerns are generated by this particular business model. Since some escorts have occasionally been known to “cross the line” and engage in sexual activity, an operator of an online escort directory must be familiar with the laws relating to prostitution, solicitation and assignation, along with the constitutional protections afforded to commercial speech under the First Amendment. This article will briefly analyze some of the interesting and occasionally complex legal issues for the aspiring online escort agency webmaster.

LAW ENFORCEMENT CLIMATE Escort agencies are favorite targets of vice units across the country. Regular raids and sting operations occur in cities across the United States, with cops posing as customers intent on testing the boundaries that various escorts may or may not be willing to cross during their hour long companionship interludes. By flashing enough cold, hard cash, law enforcement officers often successfully tempt escorts into engaging in, or agreeing to engage in, some form of sexual activity in exchange for money. With the notable exception of regulated brothels in certain portions of Nevada, states outlaw prostitution in its various forms. While the exchange of sexual activity for money is commonly at the root of such prohibitions, various other tangential activities fall within the ambit of modern prostitution laws, including agreements to engage in prostitution, encouraging another to engage in prostitution, arranging appointments for the purpose of prostitution, living off the proceeds of prostitution, operating a facility of business for the purpose of facilitating prostitution, and/or owning a structure used for prostitution activities[1]. The seriousness of these offenses depends on the particular states’ laws involved, but can range from a simple misdemeanor, commonly resulting in a small fine, to racketeering offenses, carrying substantial penalties including decades of incarceration, a six-figure fine and forfeiture of all business assets. Therefore, a comprehensive understanding of the risks involved in helping to arrange meetings between individuals that create an environment fostering sexual activity is critical, given the potentially serious consequences involved.

Law enforcement agencies long ago realized the futility of trying to combat the prostitution problem by routinely arresting individual prostitutes and sending them through the revolving door of arrest, plea, fine and release (although the practice continues). Therefore, vice officers have tried various other strategies designed to combat the problem at different levels, such as arresting customers, publishing their names in the newspaper, educating prostitutes regarding the risks involved, forfeiting vehicles used during encounters, and focusing on punishing “pimps.” But even those methods have not been particularly successful in combating the world’s oldest profession.

More recently, law enforcement has attacked the problem from a different angle, by focusing on the advertisers of common fronts for prostitution, i.e., escort agencies, massage parlors and body scrub salons. In some areas, even the phone book publishers have been threatened with racketeering offenses if they continued to run yellow page advertisements for escort agencies, resulting in the prompt disappearance of this category from various cities’ yellow page listings. The theory is that the prostitution business will dry up if the escorts are forced underground making them hard to find. While this is certainly not a cure-all solution, it has put a damper on the escort business in various cities throughout the United States where such tactics have been used . . . that is, until the Internet came along. The Internet created an alternative venue for advertising underground or “gray market” products and services. This instantaneous world-wide advertising venue has become quite popular for escorts and customers alike, allowing the advanced scheduling of sensual liaisons with virtual anonymity, in sharp contrast to the expense and risks involved with long distance telephone calls.

This retreat to the Internet has not gone entirely unnoticed by law enforcement, including in the State of Florida, where a popular escort service information site, www.BigDoggie.net, was the subject of a criminal prosecution by a joint effort between the Hillsborough County Sheriff’s Office and the Metropolitan Bureau of Investigation in Tampa and Orlando, respectively. Although police tried to shut down the website under some creative theories, it remains active as an online venue for the exchange of information about escort services in this state. The prosecution against www.BigDoggie.net will certainly not be the last of its kind, as vice units across the country realize that the Internet has now supplanted the yellow pages as the primary source of information for adult-oriented entertainment, including escort services.

Notably, many escort services run perfectly law-abiding and legitimate operations, and zealously protect their adult license by strict enforcement of a “no sexual contact” policy. However, law enforcement still views such businesses with a jaundiced eye, and will continue to focus on investigating such establishments for violation of prostitution-related offenses.

COMMERCIAL SPEECH AND THE FIRST AMENDMENT

Did you ever wonder how High Times® magazine can get away with talking about the cultivation and use of illegal drugs without running afoul of the law? The answer is found in the First Amendment. Under Free Speech principles, citizens have the right to discuss, and write about, activities which may themselves be illegal. In other words, the government’s ability to regulate conduct is not coextensive with its ability to regulate speech relating to such conduct[2]. In the context of advertising activities that might be illegal, the United States Supreme Court has held that the First Amendment protects commercial speech about a product or service that is within the government’s power to otherwise completely ban, such as gambling activities[3]. Thus, while gambling may itself be illegal, advertising that activity cannot be completely banned.

In the specific case of advertising online escort agencies, the First Amendment plays a significant role. Theoretically, the advertisers are all licensed escorts, agencies or businesses, conducting presumably legitimate escort activities. Therefore, under the appropriate test[4]for determining the validity of any potential regulation of commercial speech, the government would have difficulty completely banning truthful advertising relating to such activities. There is some precedent for criminalizing other communicative activities such as solicitation of murder, extortion or assignation of prostitution, for that matter. However, the typical online escort directory involves a simple sale of advertising space and not actual involvement in arranging the meetings between customer and service provider. The traditional advertising relationship enjoys commercial speech protection, generally. While the government is currently flirting with the argument that advertising alleged illegal activity, such as online gambling, constitutes “aiding and abetting” illegal activity; there is little, if any, support found in legal precedent for the argument that advertising itself can be sufficient to impose criminal liability.

THE LEGAL ISSUES

By way of summary, the following legal issues are some of the more important that should be addressed and evaluated in connection with the creation of an escort directory website:

1. Escort Age Verification – It is important to confirm that all models depicted on the website, especially those depicted in a sexually-oriented manner or nude, were over the age of eighteen when the images were created, and have executed proper age verification records as required by Title 18, U.S.C. § 2257.

2. Copyright/Publicity Issues – A method must be implemented allowing the online escort directory to obtain a release of the intellectual property and publicity rights necessary to post images and/or text relating to the individual escorts and/or agencies. These details are often ignored, and can result in significant liability if images are used without supporting rights transfers.

3. User Age Verification – As with any adult-oriented content, some method of age verification must be implemented to confirm that users or members of this website are over the age of eighteen. Escort customers must also be adults under most local adult entertainment codes, and thus the issue of facilitating a meeting between an adult escort and a minor may arise in the absence of valid user age verification, such as that described onwww.BirthDateVerifier.com.

4. User Terms & Conditions – All disclaimer, warranties and customer service terms should be included in a custom drafted set of Terms & Conditions for an online escort directory.

5. Privacy Policy – Any Website that collects private information from its users should have a written Privacy Policy detailing how such information is used by the website. If certain financial information is collected, this is required.

6. DMCA Compliance – Since the website will presumably be using content provided by others, some form of Notice & Takedown Procedure and/or Designation of Agent to Receive Notices of Claimed Infringement should be considered. One copyright infringement claim can destroy a small business.

7. Spam Policy – In light of the recently-enacted CAN-SPAM Act, it is essential to implement some sort of strict policy relating to the use of unsolicited email to promote the escort directory. 8. Copyright Registration – Once the directory is created, its graphics, images and text should be registered with the United States Copyright Office, to help protect copyrights to the fullest extent. Timing is important on this issue.

8. Copyright Registration – Once the directory is created, its graphics, images and text should be registered with the United States Copyright Office, to help protect copyrights to the fullest extent. Timing is important on this issue.

9. Avoiding criminal exposure – This is certainly the most complex area to address, and involves a variety of factors, such as proper use of disclaimers, image content restrictions, escort descriptions, linking policy, the terms of the Advertising Agreement, and the overall look and feel of the site. The Advertising Agreement will likely require any escort agencies to have in place a set of rules and regulations governing escort conduct to prohibit any illegal activity. As always, the devil is in the details, and it is therefore critical to obtain a competent attorney’s review of the entire website, along with the Advertising Agreement between the directory website and the escorts and/or agencies. Some financial relationships are more dangerous than others, from a liability standpoint. A healthy set of User Terms & Conditions can also help limit legal liability in connection with these business models.

CONCLUSION

The growing popularity of online escort directories has not gone unnoticed by law enforcement officers, who have successfully intimidated other traditional escort advertisers out of the business. However, by implementing some simple protective measures, and paying attention to the legal details, potential exposure can be minimized. As with all areas of developing Internet law, legal precedent is far from being set. By taking a few common sense precautions, risks can be reduced to a more acceptable level. Lawrence G. Walters, Esq., is a partner in the national law firm Walters Law Group. Mr. Walters represents clients involved in all aspects of adult media. Nothing in this article constitutes legal advice. Please contact your personal attorney with specific legal questions. Mr. Walters can be reached at larry@firstamendment.com, through his website: www.FirstAmendment.com or via AOL Screen Name: “Webattorney.”

[1] E.g. Ch. 796, Fla. Stat. (2003).

[2] Greater New Orleans Broadcasting Association, Inc. v. U.S, 527 U.S. 173, 119 S.Ct 1923, 144 L.Ed.2d 161 (1999).

[3] Id.

[4] The courts used what is commonly referred to as the Central Hudson Test in determining whether governmental regulation of speech is valid. This Test involves an initial determination whether the product or service being advertised is legal, and if so, whether there is a significant governmental interest in regulating the activity, and finally a consideration of the “fit” between the goals sought to be achieved, and the methods used to accomplish those goals in the challenged regulation. Hudson Gas & Electric Corp v. Public Service Commission of New York, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980).

Lawrence G. Walters, Esquire is a partner with the law firm Walters Law Group. Mr. Walters represents clients involved in all aspects of adult media. Walters Law Group handles First Amendment cases nationwide, and has been involved in significant Free Speech litigation before the United States Supreme Court. All statements made in the above article are matters of opinion only, and should not be considered legal advice. Please consult your own attorney on specific legal matters. You can reach Lawrence Walters at larry@firstamendment.com or www.FirstAmendment.com.

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There Is No New Backpage

By April Glaser

Last April, two successive tremors shook the business of sex on the internet. The first was the dramatic FBI shutdown of Backpage, a website for posting online personals that had attained outsize importance among sex workers. Days after that, President Trump signed two new bills into law, the Stop Enabling Online Sex Trafficking Act (SESTA) and Fight Online Sex Trafficking Act (FOSTA), which together make websites that knowingly allow sex trafficking to happen liable for hosting the illegal activity—thus making it much easier for prosecutors to go after the proprietors of sites like Backpage. Both of these moves were meant to help some of the most vulnerable people impacted by the availability of sex online: individuals, often minors, being trafficked by pimps who sought out customers on sites like Backpage. Other venues took notice: Craigslist, for example, took down its personals section for fear of being held liable for activity on it. But like so many well-intentioned policies, these actions to help victims harmed another group in the process—people engaged in consensual adult sex work. When Backpage shuttered, “I was like, I’m fucked,” a sex worker who calls herself Raven told me. “For me, I was like ‘this has been the only way I have known how to survive.’ ” Raven, 27, has been a sex worker in some form or another since she was kicked out of her parents’ house at 18. She relied on Backpage to find and vet clients—and most importantly, work for herself without an agency or pimp.  

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Cracking down on the forums where pimps solicit sex on behalf of trafficking victims was probably always going to affect a broader group. It’s an unfortunate irony that while FOSTA and SESTA were supposed to make it harder for pimps to coerce or force people into sex work, the websites they targeted were favored by sex workers who wanted to avoid pimps. What’s clear, 10 months after the passage of those laws, is that a solution that will safeguard both those who are being trafficked and those who are engaged in consensual adult sex work remains elusive. An array of Band-Aid–like solutions for vetting clients online only illustrates the depth of the problem—that until the law sees consensual adult sex work differently, it’ll remain dangerous no matter what ingenious solution or policy emerges.

Given what happened on it, few would argue for restoring a site like Backpage. A lengthy Senate investigation into the site’s founders, Michael Lacey and Jim Larkin (who also previously ran Village Voice Media, a chain of alt-weeklies that included the Village Voice), found internal emails that allegedly showed how the site’s administrators edited posts with software that scrubbed words from ads that signaled illegal work with minors, like “amber alert” and “Lolita,” rather than passing the information on to law enforcement.* Lacey and Larkin, along with the site’s CEO Carl Ferrer, were all charged with money laundering and pimping. That investigation brought to light terrifying stories of young trafficking victims whose pimps relied on Backpage and who were raped hundreds of times, which gave momentum to the passage of FOSTA and SESTA.

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Without Backpage, Raven has mostly left sex work, save for rare jobs with friends who need a partner because a client requested one—perhaps a positive outcome in the view of the laws’ authors, but for Raven, who suffers from chronic pain and mental health issues, it’s been “the only job where I could feasibly do a lot of work when I can. At times when I’ve had steady jobs with a schedule I always get suicidal and fuck it up.” Others who previously relied on Backpage or Craigslist have gone to work for escort services, pimps, dungeons, or massage parlors that are known for offering a little extra, which all generally take a hefty cut of what clients pay. One sex worker I spoke to from New York told me some women she used to work with now drive for Uber. Some have returned to street work. And others still have tried to replace Backpage with other online services so they can still work independently. One newer option is Switter, a “sex work-friendly social space” made in Australia, where the sex business is largely legal. There are also sites like TNA Board, Tryst, and Eros, which all cost money to be on.

Importantly, most of these sites are not based in the United States, though Americans are able to post on them. The new laws chip away at the immunity enjoyed by websites under the 1996 Communications Decency Act, a bedrock internet law that has ensured online forums, including social networks and news sites with comments sections, generally aren’t liable for what users post. Without that immunity, the legal risk of running a website that allows sex workers to advertise but could also attract sex traffickers is much, much higher. “It’s become more of a buyers’ market,” a sex worker based in the Bay Area who goes by Chloe told me, explaining that without having as many potential clients to pick from, many in her community are returning to men they’d rather not see again. “When you look at screenshots that have surfaced from some of the client forums, you can see some of these guys who are real monsters celebrating about how now that the sites are down women can’t charge whatever they want,” Chloe said.

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The creator of Switter wanted to create an option so sex workers could avoid such situations. Sensing that the Backpage investigation was coming to its end and that the passage of an anti-internet trafficking law was imminent, Lola Hunt, a sex worker based in Australia who was also a Backpage customer, decided to collaborate with a friend on creating a new platform for sex professionals to congregate. Switter launched at the start of April, about a week before Backpage and Craigslist closed and FOSTA was signed into law. By May, the site had ballooned to around 70,000 users. But Switter’s growth—the site now counts more than 209,000 users, according to Hunt—hasn’t been free from turbulence. Within 10 days of FOSTA being on the books and less than a month of being operational, Switter’s content delivery provider, Cloudflare, gave it the boot, forcing Switter offline and in search of a new option. The reason, according to Cloudflare’s general counsel, was “related to our attempts to understand FOSTA, which is a very bad law and a very dangerous precedent.” Whatever they felt, Cloudflare was treading cautiously around the new status quo.

And it wasn’t the only company unwilling to support a site for sex workers after Backpage and FOSTA. In order to cover the costs of running Switter, Lola and two other colleagues launched Tryst, a paid platform for sex workers that allows them to maintain anonymity and still verify they are the person in posted ads. (Switter, by contrast, is more a Twitter-like social feed.) The lowest package on Tryst starts at about $35 a month for sex workers. But building a way for the site to accept money has been nearly impossible, according to Hunt. “In Australia we’ve been rejected from multiple banks without reason. And they have every right to because sex work is not protected by anti-discrimination rules,” says Hunt. Widely used American payment companies like Stripe and PayPal were out of the question, Hunt said, because “we can’t use a company that stores our users’ data in the United States. That’s out of the cards.” Still, Hunt and her colleagues have managed to find workarounds, and Switter and Tryst are currently operating.

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Jenny, a sex worker who also runs a nude housework business in Seattle, told me she lost all of her old regulars after Backpage and Craigslist because, she figures, they’re afraid of getting busted. She now uses TNA Board, an online message board with local forums that costs money to use, but that hasn’t been as steady as Craigslist and Backpage. “I’m in the red now. I don’t have any savings,” she told me. “I usually like to keep a few hundred cash in the house. But right now, I’m worried because I’m not getting as many calls or emails. It’s dead.” Switter has certainly worked for some—but not all. For one thing, it operates like an open social network, and to ensure your posts are visible requires social-media savvy and regular use. It sorts posts using hashtags, which can make the site feel cacophonous, with some posters cramming in long strings of keywords. But the biggest problem is scale: None of these alternatives has as many clients as Backpage did, which means the sex workers have fewer of them to vet.

What all of these annoyances and limitations add up to is a greater likelihood of sex workers turning to the streets to solicit sex. In San Francisco, people who live in neighborhoods that are adjacent to strolls where street-based sex workers pick up clients have been complaining to the police about the uptick in prostitution in their neighborhoods, as one resident of the Mission neighborhood in San Francisco told CBS 5 KPIX earlier this month: “We’ve had recently sex workers performing their trade in our front yard, under our daughter’s window.” Pike Long, the deputy director of St. James Infirmary, a health and safety clinic for sex workers in the city, told me the clinic estimates the number of sex workers now doing street work in San Francisco alone has tripled since Craigslist’s personals section and BackPage went offline. The uptick led to the creation of a “Sex Workers Abatement Unit” within the Mission police station, which often gives sex workers the choice of either going to jail or going through a diversion program. In Long’s view that’s coercive, since many sex workers often choose jail over going through a police-sanctioned program. 
While there have been other anecdotal reports of upticks in solicitation for sex on the streets around the country that some police departments have attributed to the closure of Backpage, it’s hard to get a full picture. One problem is that police generally lump sex workers and victims of human trafficking into the same statistics, making it hard to tell if there have been more arrests due to one or the other.

Consensual adult sex work and sex trafficking will likely always operate in overlapping spaces—whether online or offline. And just as the crackdown on Backpage has changed the landscape for sex workers, it’s also pushed more sex trafficking onto the streets, where there’s no telling who a client is before getting into a car. The internet certainly made it easier for everyone to sell sex, but it made it safer for a lot of people, too. If the goal is to improve outcomes, lawmakers should consider the reality that sex trafficking victims and sex workers aren’t the same. And in such a criminalized area, built on informal economies and fragile business arrangements with often deeply imbalanced power dynamics, any crackdown that attempts to help one community could be a tragedy for another.

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Landmark Senate Bill Introduced to Better Protect Sex Workers

“In 2001 I was raped by a serial rapist who was preying primarily on prostitutes in the city of Oakland,” says Veronica Mamet, a former escort. “I wanted to report that rape, and I was not able to. Rachel West [of the US PROStitutes Collective] tried for about three years to get the Oakland Police Department to take my statement without threatening to arrest me, and they would not do it. And meanwhile, this man continued to rape prostitutes. Three weeks after he raped me he raped another prostitute, and he stabbed her in the face with a knife, permanently scarring her.”

It’s sadly not an uncommon story. Decades of stigma have made it nearly impossible for sex workers to report such crimes to the police without risk of persecution. Current laws are designed to make it ridiculously easy to arrest and charge them — even having condoms on one’s person can be used as evidence that someone is engaging in sex work. Because of this, the majority of violence inflicted upon sex workers goes unreported, over the victim’s not-unjustified fears that they will just be arrested and charged while their assailants walk free.

On Monday, state Senator Scott Wiener introduced new legislation to better protect professional sex workers facing this exact dilemma. Senate Bill 233 eliminates the possibility that condom possession can be used as probable cause for an arrest, and provides long-overdue immunity for sex workers who come forward about assaults.

“We should be doing everything we can to protect the health of safety for all people, particularly sex workers,” Wiener says. “To be a victim of a crime, and then to be fearful that to go to the police to report the crime you yourself might get arrested for sex work… is not the right incentive. We want to send a clear signal to sex workers and everyone else that we want you to report a crime to the police, we want you to feel safe going to the police for help.”

SB 233 is a great step in that direction, and Monday’s announcement was held with the avid support of an array of sex workers and industry advocates.

However, one Senate Bill isn’t going to change decades of persecution, as San Francisco has already witnessed. An agreement drafted by advocates and signed by SFPD Chief Bill Scott in 2017 guaranteed nearly-identical protections for San Francisco sex workers, something that Rachel West of the US PROStitutes Collective called a “huge breakthrough that was really the basis for this bill to come forward.”

But even if the wake of that agreement trust in the SFPD remains fairly low; women on the street continue to report arrests, particularly in the Mission District, where a Sex Worker Abatement Unit has been particularly active. 

“The ongoing situation of police crackdowns going on all over the Bay Area… We all know that that situation makes it very difficult to report,” West says. “Women are busy running from the police because they’re afraid of being arrested. In that type of situation, they’re not going to be very likely to report. These crackdowns undermine San Francisco’s policy and this bill. If their safety is going to be seriously prioritized we have to look at this issue, too.”

Nevertheless, the potential passage of this bill could still help people like Mamet, who was willing to report her rape. And she’s not alone; incidents of violence are high, particularly for street-based prostitutes, sex workers of color, or those who identify as transgender. A study conducted in 2014 by the University of California and St. James Infirmary found that 60 percent of sex workers experience some type of violence while at work; 32 percent said they’d experienced a physical attack, 29 percent had been victim to a sexual assault, and 40 percent of everyone interviewed claimed they’d had a negative interaction with law enforcement when trying to report these incidents.

While much work has to be done to improve relationships between sex workers and police, SB 233 can still be seen as a necessary step in humanizing those who work in the industry. 

“This strikes really close to my heart that the lives of any of us would be considered less valuable because of what we do to support ourselves,” says Mamet. “Anytime we allow predators to prey on a particular population we are giving them permission to prey on all of us. It’s always astounded me that anyone could have a designated population that it’s okay to rape or kill and think that that’s somehow or another okay.” 

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Facebook’s Sexual Solicitation Policy is a Honeypot for Trolls

By Elliot Harmon

Facebook just quietly adopted a policy that could push thousands of innocent people off of the platform. The new “sexual solicitation” rules forbid pornography and other explicit sexual content (which was already functionally banned under a different statute), but they don’t stop there: they also ban “implicit sexual solicitation”, including the use of sexual slang, the solicitation of nude images, discussion of “sexual partner preference,” and even expressing interest in sex. That’s not an exaggeration: the new policy bars “vague suggestive statements, such as ‘looking for a good time tonight.’” It wouldn’t be a stretch to think that asking “Netflix and chill?” could run afoul of this policy.

The new rules come with a baffling justification, seemingly blurring the line between sexual exploitation and plain old doing it:

[P]eople use Facebook to discuss and draw attention to sexual violence and exploitation. We recognize the importance of and want to allow for this discussion. We draw the line, however, when content facilitates, encourages or coordinates sexual encounters between adults.

In other words, discussion of sexual exploitation is allowed, but discussion of consensual, adult sex is taboo. That’s a classic censorship model: speech about sexuality being permitted only when sex is presented as dangerous and shameful. It’s especially concerning since healthy, non-obscene discussion about sex—even about enjoying or wanting to have sex—has been a component of online communities for as long as the Internet has existed, and has for almost as long been the target of governmental censorship efforts.

Until now, Facebook has been a particularly important place for groups who aren’t well represented in mass media to discuss their sexual identities and practices. At very least, users should get the final say about whether they want to see such speech in their timelines.

Is Facebook now a sex-free zone? Should we be afraid of meeting potential partners on the platform or even disclosing our sexual orientations?

Maybe not. For many users, life on Facebook might continue as it always has. But therein lies the problem: the new rules put a substantial portion of Facebook users in danger of violation. 

Fundamentally, that’s not how platform moderation policies should work—with such broadly sweeping rules, online trolls can take advantage of reporting mechanisms to punish groups they don’t like.

Combined with opaque and one-sided flagging and reporting systems, overly restrictive rules can incentivize abuse from bullies and other bad actors. It’s not just individual trolls either: state actors have systematically abused Facebook’s flagging process to censor political enemies. With these new rules, organizing that type of attack just became a lot easier. A few reports can drag a user into Facebook’s labyrinthine enforcement regime, which can result in having a group page deactivated or even being banned from Facebook entirely. This process gives the user no meaningful opportunity to appeal a bad decision.

Given the rules’ focus on sexual interests and activities, it’s easy to imagine who would be the easiest targets: sex workers (including those who work lawfully), members of the LGBTQ community, and others who congregate online to discuss issues relating to sex. What makes the policy so dangerous to those communities is that it forbids the very things they gather online to discuss.

Even before the recent changes at Facebook and Tumblr, we’d seen trolls exploit similar policies to target the LGBTQ community and censor sexual health resources. Entire harassment campaigns have organized to use payment processors’ reporting systems to cut off sex workers’ income. When online platforms adopt moderation policies and reporting processes, it’s essential that they consider how those policies and systems might be weaponized against marginalized groups.

A recent Verge article quotes a Facebook representative as saying that people sharing sensitive information in private Facebook groups will be safe, since Facebook relies on reports from users. If there are no tattle-tales in your group, the reasoning goes, then you can speak freely without fear of punishment. But that assurance rings rather hollow: in today’s world of online bullying and brigading, there’s no question of if your private group will be infiltrated by the trolls; it’s when.

STOP FOSTA/SESTA

The rule change comes a few months after Congress passed the Stop Enabling Sex Traffickers Act and the Allow States and Victims to Fight Online Sex Trafficking Act (SESTA/FOSTA), and it’s hard not to wonder if the policy is the direct result of the new Internet censorship laws.

SESTA/FOSTA opened online platforms to new criminal and civil liability at the state and federal levels for their users’ activities. While ostensibly targeted at online sex trafficking, SESTA/FOSTA also made it a crime for a platform to “promote or facilitate the prostitution of another person.” The law effectively blurred the distinction between adult, consensual sex work and sex trafficking. The bill’s supporters argued that forcing platforms to clamp down on all sex work was the only way to curb trafficking–nevermind the growing chorus of trafficking experts arguing the very opposite.

As SESTA/FOSTA was debated in Congress, we repeatedly pointed out that online platforms would have little choice but to over-censor: the fear of liability would force them not just to stop at sex trafficking or even sex work, but to take much more restrictive approaches to sex and sexuality in general, even in the absence of any commercial transaction. In EFF’s ongoing legal challenge to SESTA/FOSTA, we argue that the law unconstitutionally silences lawful speech online.

While we don’t know if the Facebook policy change came as a response to SESTA/FOSTA, it is a perfect example of what we feared would happen: platforms would decide that the only way to avoid liability is to ban a vast range of discussions of sex.

Wrongheaded as it is, the new rule should come as no surprise. After all, Facebook endorsed SESTA/FOSTA. Regardless of whether one caused the other or not, both reflect the same vision of how the Internet should work—a place where certain topics simply cannot be discussed. Like SESTA/FOSTA, Facebook’s rule change might have been made to fight online sexual exploitation. But like SESTA/FOSTA, it will do nothing but push innocent people offline.

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