Risky business: sex work, regulation & online platforms transcript

Daniel Ridge

In today's episode, we're going to be talking about the role online platforms play in facilitating sex work. Historically, sex work has been prosecuted on moral grounds, but more contemporary arguments against it frame it in terms of preventing exploitation and human trafficking. But the reality is more nuanced than that with proof the use of online platforms, in fact, makes sex work safer. In a recent article that appeared in the Journal of Entrepreneurship and Public Policy, titled “Sex Work and Online Platforms, What Should Regulation Do?” Authors Nick Cowen and Rachela Colosi, assess the impact of online platforms on the sex industry, focusing specifically on direct sex work, and evaluate what approaches to platform regulation are likely to line with the interests of sex workers.

Hi, well thank you so much for joining me today.

Nick Cowen

It's great to be here, Daniel.

Rachela Colosi

Yeah, thank you.

DR:

I'm really interested in your article, I think it's a really important one, I'm wondering what got you interested in the subject.

NC:

Sex work is a very large sector. It's also one that is quite hard to get a grip on because it's illegal in many jurisdictions, or at the very least stigmatized in other jurisdictions where it might be not illegal or subject to kind of lesser sanctions in some form. I suppose what we think is really interesting about the paper that we put together is it combines two lines of scholarly arguments. The first is a sort of a sociological analysis of sex work that looks at the challenges that this stigmatized, minority face and the kinds of strategies that they've adopted in order to overcome those challenges, especially with respect to risk and safety, and that includes the use of online platforms. The other strand is something that I've been looking at in the realm of new institutional economics. And that's basically the role of online platforms in reducing transaction costs in the provision of quite a large variety of services. So, things like personal transportation, accommodation, and you know, even food delivery. And what's interesting is that the stigmatized nature of sex work means that it doesn't just affect like the reality of sex work, it actually affects the scholarship, underlying sex work as well, it means you get people who are looking at this issue in a segregated fashion, and it means that people who are looking at, say, online platforms more generally are not necessarily looking at the effect on the sort of peripheral markets in the same way. And, so, what we see this paper doing is bridging that gap between the in-depth sociological analysis of sex work, and a more overview approach, which is adopted by new institutional economists.

DR:

Well, one thing that really struck me that I thought was interesting in your article is at the beginning, you point out that, historically, sex workers have been prosecuted on moral grounds. But that the contemporary rationale against sex work is that it's against exploitation and human trafficking. So, there's a little bit of a shift there. I was wondering if you could talk about the blur between consensual and non-consensual sex work and what it means in terms of regulation?

RC:

Yeah, so I think the issue here, with the kind of blurring of boundaries between what's considered to be consensual or non-consensual relates really to that lack of understanding about what sex work is, and what it involves, and importantly, how varied the sex industry actually is. I mean, the only way really to understand the sex industry, and what sex work is, is to draw upon the narratives of sex workers themselves, and listen to how they make sense of their work, and what they identify as the risks and challenges. That's been quite a significant issue, and when policies have been made that those narratives haven't been listened to. So, what we see is that the sex worker is constructed as either a victim or a villain. And we can see this both in prohibitionism and abolitionism, which underpins, of course, the suppression models, which we talked about in the paper.

In the case of abolitionism, where sex workers are identified as victims, there's no real space to recognize that these workers might be making rational choices about engaging in sex work. So really, there's this assumption, then, that they're working in the sex industry with no clear choice. And I guess it's here that those boundaries get blurred between non-consensual and consensual. And, just to emphasize, this is why it's so important to listen to the sex workers and I'd say that's kind of central to it, their narratives, in terms of trying to understand it.

DR:

When you talk about direct sex work and the sex industry, what does that include?

RC:

You know, writers in the field of sex work tend to make this distinction between direct and indirect sex work. So, in the paper, we're focused on direct sex workers. Direct sex work tends to involve direct sexual contact between a sex worker and the client. So that contact that's fairly intimate. So, an obvious example would be prostitution. So, whether that's part of the indoor market, so, an example of that would be a prostitute working from home or in a brothel, or indeed the outdoor market, which would include street prostitution. So, direct sex workers tend to use platforms to source clients, and, as we mentioned in the article, for self-protection measures, which would include things like vetting clients, and they may also use platforms to receive payment for work, and also to engage in other direct sex work. On the other hand, I think it's important to mention this, indirect sex work doesn't involve sexual contact between sex workers and clients. So, it would include things like pornography, and most forms of sexual entertainment. However, it's important to note that there is sometimes an overlap between these forms of work. So, for example, some individuals might engage in both direct and indirect sex work. And we certainly see that with the use of the internet and how sex workers might use online platforms. So, they might use online platforms, for example, for webcaming. So, an example of indirect sex work, but that might be a way of advertising a direct service that they also offer. So, there is overlap there. And I think the internet provides that opportunity.

In terms of the sex industry and what that includes. And, again, this covers really a broad spectrum of sex related businesses. So, it would include those examples I gave you of indirect and direct sex work. But it might also include glamour magazines, or what we might term as men's magazines as well. So, it can include anything really that is constructed as sexual. So, in some cases, even fetish related businesses would be included in that sort of bracket of sex industry.

DR:

So, they're using different pages, you'd mentioned Backpage in your article as well. I was wondering if you could tell me a little bit about that, and how sex workers use platforms like that?

NC:

The simplest way to conceptualize what Backpage was offering was a kind of paid personal section, I think some people might be familiar with seeking out romantic partnerships on various websites. And I suppose one of the famous ones was Craigslist. And, often as a subsection of these attempts to find romantic liaisons, some sections would allow for paid meetings, essentially. Due to a series of actions by US prosecutors and law enforcement, these sections were kind of progressively controlled, reduced and eventually eliminated from most mainstream platforms. So, in other words, most platforms that were allowing people to meet up and make romantic arrangements had to stop allowing for either the open or even discreet advertising of sexual services. And, eventually, in fact, they've almost reduced the ability to have personal sections at all. And, in this sense, this was the internet adopting and adapting some of the things that you would see in the literal back pages of newspapers, there's a history of Backpage that also involves the publication of independent newspapers, that also relied on classified ads.

So the difference with Backpage is they resisted these warnings from US law enforcement, basically, because they thought that, as a publisher, they had strong First Amendment protections to advertise willing sellers to willing customers, and were quite successful for a time defending themselves in court, especially when sued basically by saying that they were acting as a third party, and that if there was harm, or violence or coercion going on, it would be another party that would ultimately be responsible. So that ended quite dramatically in 2016, with the raid of Backpage’s headquarters and the arrest of many of their personnel. And, at the time, it was claimed that this is because Backpage was facilitating human trafficking. And one of the ways in which law enforcement were able to make that claim was that, in fact, Backpage had previously had quite an open communicative relationship with law enforcement, and when they saw poor practices, or what they suspect were illegal practices taking place on their platform, they would report it to law enforcement. And, so, there's quite a bit of disagreement within the anti-human trafficking NGO sector about what Backpage’s role really is because, in fact, some NGOs quite appreciated the fact that Backpage was quite open about some of the problems in the sector and were actually allowing bad actors to be identified or as a cause. Now, it's much harder because the sector has been de-consolidated in some ways. Since then, sort of around the same time as these as these arrests, the US government put into law the FOSTA-SESTA Act which actually removed some third party protections, which had previously protected an awful lot of internet traffic and publication.

So, it's going to be interesting to see how that develops since many of these cases are still ongoing so we don't know all the details that are coming out. But what's interesting is that, so far, the charges of human trafficking have not really held up, rather, laws regarding prostitution and money laundering. Some personnel have accepted culpability with regards to those. And that, I think, illustrates the problem that the whole sector is facing in the sense that often what you'll see up front is a claim for human trafficking, and then when you get into the more detail, you realize, actually, it's prostitution, i.e. consensual sexual activities that is, in fact, being regulated and shut down.

DR:

I got the sense from your article that these platforms make sex work a little bit safer. I was wondering what you could tell me about that, and what are some of the risks that sex workers face?

RC:

I think it's important not to assume that all sex workers face the same risks. And so, for example, there are going to be inevitable differences between how direct and indirect sex workers experience risk, but even with indirect sex work, depending on the nature of that work, there are going to be differences. And so, you know, it's also due to that kind of the nature of the labor that they're engaging with, but also how that form of sex work is regulated, the support available to those workers, and the extent to which their work is stigmatized.

In relation to stigmatization, and Nick talked about this, at the beginning of the podcast, we know that sex work is stigmatized, there’s clear evidence to suggest that it's stigmatized. However, some forms of sex work are more stigmatized than others. So, for instance, we know that direct sex work is more stigmatized and indirect sex work. So, what we see anyway is that there are clear connections between all these different factors, and where regulation recognizes sex workers as workers, rather than criminalizing them, ensuring that they have the same rights and protections as workers in other forms of employment. A general provision in support is more available to those workers. But also it encourages a process of normalization, which is really important if we want to neutralize stigmatization. So what this means is that their work is less stigmatized, and that sex workers are less likely to experience abuse, whether that's physical or verbal abuse. And we can see this in New Zealand, for example. So New Zealand are working under this kind of permissive model, where sex work has been decriminalized under the Prostitution Reform Act, and that was in 2003. There is evidence, for example, that the harms directed at sex workers have reduced following the introduction of the Prostitution Reform Act.

I think it's also important to note that by being able to operate online, direct sex workers are able to assert more control. So, for instance, by taking personal protection measures that overall reduce risks. That said, as more sex work and transactions are performed online, the nature of risk changes. So, it reduces some ways but then there are, of course, new risks. So, for example, there's been an increase in non-payments or attempts to underpay workers, virtual stalking and threats, verbal abuse. So, this is something that has increased. Now, there are some scholars, Professor Tila Sanders and Dr. Rosie Campbell, who've conducted some very insightful work about online sex work, and their work highlights the changing nature of risk in the context of online sex work.

DR:

So, I'm curious about what the regulation seeks to address and what doesn't it consider?

RC:

I touched on regulation there a little bit. So, again, just talking more generally, and maybe Nick can say something more specifically about online regulation. But generally speaking then, there's quite a bit of variation in terms of how sex work, whether it's direct or indirect, is regulated in different places.

So, in the US, as we talked about in our article, there's been this tendency to lean towards criminalization but there’s still variation between states and we see variation in Europe too. So overall, if we think about Northern Europe, legislation works under a suppression model and this is fairly abolitionist in its approaches. So, the aim here is eradicating sex work. But it also appears to have some intention to safeguard the sex worker. And it's the consumer or the client that's penalized and punished rather than the sex worker. So, an example of this and, again, we refer to this in the article would be the Nordic or sometimes it's called the Scandinavian model. So, for example there are policies that have been passed in Sweden that would criminalize the clients but not the sex worker. So, this particular approach of abolitionism is really partly driven by the anti-sex work movement to take a radical feminist approach and see sex work very much as violence against women. So, they see sex work very much as a very gendered form of work. So, the regulation of sex work in England and Wales is really moving towards a similar model. And two key pieces of legislation here would probably be the Sexual Offences Act and the Policing and Crime Act. And it's probably worth noting that it's the Policing and Crime Act, in particular, where we really see this kind of shift in regulation towards abolitionism, under Section 14 of that Act. So, under Section 14, it makes it an offence for a client to pay for sex with a prostitute who's been subjected to force. Now, of course, the difficulty here is defining what is meant by force. The problem with many of the suppression models is that they fail to acknowledge that they fail to acknowledge the narratives of sex workers, and they also ignore academic evidence. So, ultimately, this leads to the inclusion of policies which simply decrease the visibility of sex work, pushing it further underground, which ultimately increases the risks and increases that stigmatization. There's some of the key problems with regulation.

DR:

So it seems that the policymakers are over simplifying the sex industry. Well, based on your research, what recommendations would you make to online platforms that choose to serve sex workers?

NC:

The first thing is possibly wonder if on a purely prudential grounds, whether it's a good idea, if you're an entrepreneur thinking of getting into the sector. Another one would be do you want yourself and your firm to be located in the United States, for the time being, as opposed to somewhere perhaps like New Zealand, where the legal issues will still be present, but will be rather less troublesome than what has turned out for the personnel involved, and the founders of Backpage. If you're thinking about for the time being, indirect sex work is more easily protected. So, in other words, in cases where it's not involving direct sexual contact, the important thing is to do what all entrepreneurs would do, which is figure out what are clients on both sides of the arrangement. So, in other words, if you're running a platform you have two parties: you have sex workers who are interested in marketing their services, and you have clients who are interested in purchasing it. You have to think about what they find useful, and particularly what they find suitable for allowing for self-protection. So, one important thing that you would want to think about is data protection. So, protecting their data and making sure that your system is secure.

One thing that I'm looking at in a slightly different direction at the moment is actually a potential role for blockchain protocols as a replacement for the traditional private corporate platform. So, it might be possible for entrepreneurs working in the blockchain sector, to establish systems which would allow the clients and sex workers to interact using a kind of mutual platform. So one that's actually controlled by the users themselves and secure on blockchain infrastructure. And the advantage of that is, once launched, there wouldn't be an individual or firm that could be directly targeted by legal authorities.

This brings up another issue facing sex workers, which is basically having secure payments. One area where sex workers have a major issue is that major payment providers will tend to resist processing the gains they make from providing their services due to what they might perceive to be legal risk, or perhaps a sort of wider ethics risks because of the stigmatized nature of the work. And that can often mean that people might be collecting funds, they might be collecting income in an account, and they're intending perhaps to make an investment, perhaps buy some property or perhaps they’re only using some aspects of their participation in sex work as a transitional form of income, and they can suddenly find that what they've gained is frozen, and they're unable to access it. That's another source of insecurity that sex workers face. The advantage of blockchain based platforms is they do allow for direct payments between parties without relying on a trusted third party in operation. So, in other words, if the network is sound, and there are an increasingly large number of so-called stable coins that have been launched on these platforms, so they tend to be pegged to the US dollar, so they're not quite as volatile as the more famous ones such as Bitcoin. That is another kind of source where I imagine entrepreneurs will already be looking to develop that sector. But, basically, anywhere where there's stigmatization and prohibition of what are otherwise consensual activities between parties, there is a role for some of this new technology which is like offering a new way of launching platforms effectively.

DR:

Well, it seems like there's a lot of risk for entrepreneurs to get involved in this industry. So, I'm wondering what sort of regulation could help entrepreneurs to make this so that they're not facing prosecution for creating these platforms?

NC:

So, the United States is a sort of federal system with a lot of variation between states. However, I think, with the exception of Nevada, all US states have laws banning prostitution to a greater or lesser extent and most of them are actually from the old prohibitionist forms. So, they would have been more directly normative. They became particularly popular in US states, I suppose, during a period of urbanization, and especially during the progressive era, in United States jurisprudence and politics in general, where the assumption was that the state did not just play a kind of facilitating role for the market. In fact, it played a very important moral role, it was part of the expansive vision of the police power.

And, if you look at the reasons why these laws are passed, they're very much alongside a kind of normative belief that sex should be closely associated with reproduction and family life, exclusively. And, of course, because when they came into law, especially in the 1920s, there was often a racial dimension to this justification as well. So, it was a concern about sex work and, more broadly, sexual license facilitating miscegenation, which, of course, now these days, that would not be a reasonable justification in almost any jurisdiction in the United States, it would be considered profoundly racist and bigoted way of enacting regulation. But what's interesting is the regulation persists.

Nevertheless, the justification for it remains, and I suppose, ultimately, the only way to protect entrepreneurs from being at risk of prosecution is actually to prevent sex workers from being at risk of prosecution as well, because, ultimately, if prostitution itself is illegal, then facilitating it, especially if you're facilitating is across state lines, which introduces a whole bunch of additional federal regulation that makes the sector very dangerous for entrepreneurs to be engaged in.

That's not to say there isn't a lot that people who are interested in developing technology platforms, there's still a great deal that they can do in this sector. So, for example, by acting as nonprofits and offering a space in which, for example, sex workers can share details about the dangers of particular clients or to share self-protection and other safety tips, that kind of thing. So, in other words, allowing sex workers to engage in collective self-governance, that is not entirely without legal risk, but it's certainly much less dangerous than, say, doing what Backpage were doing, which was directly facilitating consensual sex work and also charging for advertising.

DR:

Is there a movement for them?

NC:

There is a campaign to decriminalize sex work in various more progressive US states such as New York, there's this increasing popularity for that going in that direction. The main problem at the moment is that it tends to be local Attorneys General sometimes who are directly elected on a more contemporary progressive platform, they'll often say that they're not going to refuse to prosecute sex workers, they're not going to be interested in getting the criminal justice system involved in the sector. But the challenge there is changing the legislation. That's the issue that we're facing.

I suppose a similar sector that's been through this already would be, you know, the cannabis or marijuana sector, where there has been tentative decriminalization and the introduction of a medicalization approach and then eventually decriminalization at the state level. And this has often been contested at the federal level, federal authorities have often nevertheless prosecuted firms that are operating completely legally, according to their local state jurisdictions. But over time, it seems like more mainstream investors and commercial organizations have got involved in the sector. And eventually it looks like we're going to end up in a situation where marijuana is decriminalized, and there won't be quite the same amount of risk that's going on in the sector. So that that will kind of be a model to pursue. But we're at quite an early stage, at least in the United States, with respect to the decriminalization of sex work. Unfortunately, it has to be a legislative solution, possibly through referendums and initiatives that can sometimes be a way of getting more progressive ideas onto the agenda more quickly than in legislative assemblies, of course, in places like California, initiatives and referendums are quite a common way of addressing these kinds of injustices.

DR:

Well, there are a lot of sites that offer a lot of indirect sex work and OnlyFans is one of those and I was curious about what your take was on them putting out that they were going to ban images like pornography and things like that on their platform, and then making a U-turn on it. So, if you could tell me a little bit about your take on that?

RC:

Really I'm thinking about the perspective of the sex worker, and what it does is it highlights that precarious position that sex workers using this platform and other platforms are in. You know, we've already seen a similar ban imposed by Tumblr, and I think it was back in 2019, the end of 2019, which, again, has a quite a negative impact on sex workers who use that platform. So, these events create an atmosphere of uncertainty and fear amongst sex workers. And certainly, there are a number of sex worker organizations that, after OnlyFans made that initial announcement about the ban, who were straight on social media and reacting to that which suggested that atmosphere of uncertainty and fear. What we need to remember is that sex workers might rely on OnlyFans as a source of income. So, either through engaging with indirect sex work, or, again, it might be a space in which they advertise direct sex work and attract clients. So, really, prohibiting these sex workers from using these platforms brings with it financial uncertainty, and again we're going to see an increase in risk, we're going to see an increase in stigmatization.

NC:

I think there's two points regarding OnlyFans, when OnlyFans announced it was going to change its policy on explicit content, initially, in the kind of ramping up of that announcement, OnlyFans was facing a great deal of criticism about the possibility of allowing underage people to participate on their platform. And I think, ultimately, OnlyFans seem to have quite a strong policy. You know, obviously, they had a formal policy that said that you had to be of the age of majority in order to participate on the platform. And I think they were also quite careful at figuring out who was breaking that policy, although, of course, people may nevertheless have managed to breach that policy by lying about their age and presenting a fake ID or using someone else's ID or something. So that did occasionally happen. And that was something that OnlyFans was very much held accountable for, by at least in the media, in the court of public opinion. And it kind of illustrates how only a very small number of cases, in what is otherwise quite a well-run regime, can nevertheless cause a great deal of problems. And, thus, creating security for the vast majority of adult, and consenting, sex workers who are making use of the platform.

And the other side is that, apparently, the pressure to ban explicit content came from payment providers, so the mainstream payment providers that handle banking and money transfer services, which OnlyFans relies on, as well. And, so, it was an interesting case, where, once again, it's a legal risk, and ethics risk, that sort of mainstream organizations perceive that is causing these particular entrepreneurial firms to suddenly face a great deal of problems because OnlyFans was founded in the United Kingdom and became enormously popular. And I think if it was any other sector it would be considered a wonderful example of a tech success, quite a rare one in the United Kingdom, because normally you'd expect things like that to be based in United States. And yet, because of the content that it facilitates, it doesn't get that kind of prestige.

That illustrates the issue of as a firm gets larger, trying to integrate itself into the mainstream payment services is a problem. And, once again, it might turn out that blockchain payment services provide a way of getting over that hump allowing these firms to continue. Of course, that might mean that law enforcement might suddenly take an interest in blockchain protocols themselves. So, we're gonna have to watch this space and see how they react to that.

DR:

So, in the end, after all your research, I'm curious about how you think that regulators should approach the marketing and sale of sexual services on internet platforms. What do you think would be an effective way to regulate it?

NC:

One thing that I tend to put a lot of emphasis on is the importance of demystifying in addition to destigmatizing sex work. And if you do that, then you recognize that there are some important parallels between sex work and other personal services. So, basically, services where someone is going to be traveling to meet someone, someone that they may not know very well and providing a service. This might be providing accommodation in your own home if it was on AirBnb, or it might be letting someone get into your car and you're going to drive them somewhere, in a kind of carpooling initiative or if you're on a driving platform. And the key things that people are facing there is you want to know the person you're meeting is safe, they're not going to cause harm to you, they're not going to attack you, they're not going to try and hurt your property, or take your property or rob you. And these are all things that people providing personal services and traveling all over cities are facing all the time. And sex workers face that more so because they cannot rely currently on law enforcement to protect them when something goes wrong. And the other thing that people really want to know is are their clients going to pay and are they capable of paying? That's the sort of thing that platforms can really help with. So, whether it's because they're directly taking payments and supplying it, in the case of more lawful areas, like providing accommodation or transport, or if it's just basically allowing the clients to be assessed, in order to figure out, yes, they are going to pay and they're capable of paying perhaps by putting a deposit on in advance.

So, there's lots of strategies that can be adopted, once you take the transaction off the street, and onto a platform. So, onto a private platform where people can talk using the internet instead. Once you've taken the risk of trying to figure someone out in a moment's notice, and give people the chance to coolly work out whether a particular transaction is worth their while and whether it's safe enough, then you dramatically increase safety. So that's what platforms are quite incentivized to deliver. So, they do that without too much of a government mandate, that's what they need to do in order to have clients and sex workers on the platform.

What I think that states could do better, would be to ensure that that kind of practice is legal. And also make it the case that so long as these platforms are willing to engage with law enforcement authorities when they observe non-consensual activity on their platforms, so long as they're willing to share data and cooperate with investigations. And in fact, ideally, to help initiate investigations when there are bad actors, then it would be important to give platform owners the legal protections, in other words, so long as they cooperate when handling the bad practices on their platforms, then they should not face prosecution. They should not face sanctions for facilitating consensual activities between adults.

DR:

We thank you for listening to today's episode. For more information about our guests and for a link to the article “Sex Work and Online Platforms, What Should Regulation Do?” please see our website. I'd like to thank Chloe Campbell for help with today's episode. And Alex from This Is Distorted