Facebook Lawsuit Isn’t Going to Help Sex Workers

I’m a big fan of Reason writer Elizabeth Nolan Brown, but I think I disagree with her take on this development:

Some people were upset that Brown was apparently applauding an attempt to shut down advertising by sex workers, through the now-familiar subterfuge of claiming to be fighting “sex trafficking.” But she’s been reporting on that trick for years, and she’s been anticipating that the sex trafficking panic will eventually hit a non-fringe website like Facebook.

That would be a good thing for sex workers, she believes, because with $40 billion in annual revenue — much of which would be at-risk if Facebook is labeled a “sex trafficking website” — they have both the means and motivation to fight this tooth and nail. Their legal team could end up setting some good precedents in the courts that will help other sites that carry sex work content, and their lobbying efforts could get some important changes to the law that would prevent these attacks on sex work in the future.

I’m not so sure.

Back in 2006, there was a bit of a panic when it was discovered that a bunch of children’s toys manufactured in China had high levels of lead in some of their components. The toy company Mattel was by far the most affected: Six of the seven toy recalls were for Mattel products, and the company ultimately recalled 19 million toys. Naturally, Congress leaped into action.

The resulting law, the Consumer Product Safety Improvement Act (CPSIA), did a number of things, the most far reaching of which was that it added a lot of new testing requirements:

The law bans lead and phthalates in toys, books, clothes, and any other object intended for children under 12. To enforce these rules, the law requires every toymaker, distributor, or retailer who sells products in the U.S. to certify each of its models through third-party testing, labeling every item with an individual date and batch number.

Broadly speaking, manufacturers used to ensure their products didn’t contain dangerous substances like lead by making that a requirement for materials purchased from suppliers. E.g. A company making painted metal toy trucks would make sure to order only lead-free paints and lead-free metal alloys from their suppliers. Under CPSIA, however, toy makers were required to independently test a sample of their assembled toys for lead content.

The law left a lot of decisions up to the Consumer Product Safety Commission (CPSC), such as how items should be marked:

On July 20, only three-and-a-half weeks before the rules were to take effect, the CPSC announced some lenient if vague interpretive guidelines. The agency said it didn’t think individual marking was required for very small objects and items in sets, such as wooden blocks, and agreed that harm to a product’s functionality or aesthetics might be a possible reason to reject marking as impracticable.

More craziness: Regulators banned lead outright in children’s items, apparently without accounting for bio-availability, so even lead locked up in tight chemical bonds could keep a product off the market:

Jewelry is subject to particularly strict requirements, since most true crystals and rhinestones contain lead—although it poses minimal danger to kids, since the metal remains locked inside the crystal structure of the stones.

The effects of this requirement are harder on smaller manufacturers who lack economies of scale. A giant toy maker could spread the costs of testing over hundreds of thousands of units of each toy, but a company that sold only 3000 units of a toy would have to cover the testing with much larger increases to the cost of each of a much smaller number toys.

One small business owner, with fewer than 10 employees, told me of needing to add an employee to do nothing but administer and document his testing and regulatory compliance program. Another told me that since children’s garments were not a major part of his business, he has decided just to get out of that aspect of the business altogether rather than have to hassle with all the rules.

This was especially brutal for craft toy makers: A woodworker making hobby horses in his garage would be required to pay for outside testing of his toys — about $4,000 per batch (whatever a “batch” is for handcrafted toys) even though the wood and paint he used were lead-free. That could wipe out his entire profit from selling the toys, and possibly his entire revenue.

Eventually, a bunch of exceptions were carved out, and some small toymakers were able to stay in business, but it was a mess for a long time. At least for some people… Remember Mattel? The giant toy company responsible for most of the contaminated products that kicked off this whole mess in the first place? Yeah, well, funny story…

Turns out, when Mattel got lemons, it decided to make lead-tainted lemonade (leadonade?). As luck would have it, Mattel already operates several of its own toy testing labs, including those in Mexico, China, Malaysia, Indonesia and California.

So while most small toymakers had no idea this law was coming down the pike until it was too late, Mattel spent $1 million lobbying for a little provision to be included in the CPSIA permitting companies to test their own toys in “firewalled” labs that have won Consumer Product Safety Commission approval.

The million bucks was well spent, as Mattel gained approval late last week to test its own toys in the sites listed above—just as the window for delayed enforcement closed.

Instead of winding up hurting, Mattel now has a cost advantage on mandatory testing, and a handy new government-sponsored barrier to entry for its competitors.

That particular episode in legislative history is why I’m not as optimistic as Elizabeth Nolan Brown about Facebook coming under attack in the sex trafficking panic. I agree with her that Facebook is going to throw money, lawyers, and lobbyists at the problem, and they’ll come out of this just fine. But I’m not convinced that Facebook’s victory will be a victory for sex workers.

That’s because I expect Facebook to work toward a Mattel-like outcome. Their lobbyists and lawyers will offer their expertise at social media to work with Congress to help craft the most effective legislation for “protecting vulnerable people.” I’m probably not devious enough to figure out exactly what they’ll do, but I would expect the 2019 Stopping Internet Facilitated Child Sex Trafficking Act (or whatever they call it) to include provisions like:

• This rule applies to all entities that operate websites that sell ad space to people offering services including but not limited to escorting, massage, exotic dancing, modeling, cuddling, or any other service that must be performed in person in a non-public location.
• Web site operators must “know their customer” and obtain suitable identification from ad buyers.
• Web site operators must, within one year of passage of this law or prior to accept their first ad, which ever comes later, submit to the Department of Homeland Security their comprehensive pland for preventing child sex trafficking through their site. The plan must include,
  • Appointment of a Sex Trafficking Prevention Officer.
  • Description of how the site proposes to identify potential child sex trafficking related advertising materials.
  • Description of how the site proposes to handle reports from law enforcement agencies indicating that one or more ads are child sex trafficking related.
  • Description of how the site proposes to handle reports from third parties that one or more ads are child sex trafficking related.
  • Establishment of a liaison relationship with the state agency responsible for child sex trafficking crimes in every state in which the website does business.
  • Establishment of a liaison relationship with the city police unit responsible for child sex trafficking crimes in every city with a population of 250,000 or more in which the website does business.
• Upon receipt of a request from a law enforcement agency to take down an ad suspected of being related to child sex trafficking, the website operator must remove the ad within 24 hours.
• Website operators must furnish to the Department of Homeland Security a quarterly report detailing the number of suspected child sex trafficking ads reported, the source of the report, and the final disposition of the ad.

And so on.

There’s be adjustments. Some church groups would notice that the law technically applies to their programs to match teenage members of the congregation with elderly members who need help around the house, and Congress would quickly amend the law to exclude faith-based social services providers. Amazon’s Home Services sales group would arrange for their own carve-outs. Maybe language would be added to require that the services be of “a sexual or intimate nature” and leave it to DHS and the courts to figure out all the details. Eventually, as with FOSTA/SESTA, something would get signed.

Facebook, with $40 billion a year or so in revenue, could easily afford to create a department and hire 10 or 20 people to comply with a law like that, as could many of the other social media giants. But a lot of smaller businesses would be casualties, not all of them escort advertising sites. I wouldn’t be surprised to discover that sites like Model Mayhem and One Model Place would fall under such a rule.

Then again, I wouldn’t be surprised if escort advertising sites survived just fine. I think Slixa and Eros are already run from offshore, and I wouldn’t be surprised to see some more foreign websites start selling to Americans. On the other hand, I can also see how small sites where a few escorts pooled their money to advertise might get shut down.

Ultimately, I just don’t think Facebook is going to end up defending sex workers.