Wiretapping Sex Workers, Punishing Pre-Crime, and National Strategy to Stop Sex-Buyers Approved by Senate

In the midst of national 9/11 remembrances Monday, U.S. senators quietly passed two significant expansions of federal power.

Both bills were introduced by Republicans but attracted bipartisan co-sponsors. Both passed the Senate unanimously. Both are dressed up as attempts to fight sex trafficking, forced labor, and "modern slavery" (there's even a nod to Frederick Douglass in one bill). But look closely and they are simply pretext to give vast new authority to Attorney General Jeff Sessions, President Trump, and police across the country. There's even some funding set aside for any border-control initiatives of the president's choosing.

Under these new measures, the FBI and immigration agents as well as state and local police can secretly wiretap suspected sex workers, or those who associate with them. The wiretapping authority extends well beyond sex traffickers, including consenting adults on any side of a commercial sexual exchange.

The bills call for a new national strategy to reduce "demand" for prostitution, order all U.S. attorneys offices be trained on treating the sex trade as "a form of gender-based violence," and make anti-trafficking training for police include tips on "arresting and prosecuting buyers of commercial sex." A large focus throughout both bills is on prostitution customers.

But there's also plenty in the package to harm sex workers, too, including a rule that no federal funds can go to any nonprofit that helps people who profit off sex and a broadening of the term "criminal street gang" that could capture any five or more sex workers traveling together. Criminal street gang members face 10 years more prison time than they otherwise would for the same crime.

And while creating an Office of Victim Assistance within U.S. Immigration and Customs Enforcement might sound nice, it reflects the growing role of immigration agents in trafficking investigations. Or as we might say, a pretext for ICE and Homeland Security Investigations to join in small-town prostitution stings and massage-parlor raids across America.

Here's are some of the other changes contained in the Senate's new trafficking legislation.

The Trafficking Victims Protection Act (TVPA) of 2017

This is the latest heir to a bill passed in 2000 and reauthorized, with significant expansions, every few years. Despite no credible data demonstrating an increase in human trafficking over this time, nor evidence the feds' approach has been working, each reauthorization has expanded on the same strategies—defining a broader and broader range of activity as sex trafficking, committing federal anti-trafficking resources to wage a war on prostitution, and throwing ever more money at the effort.

Introduced by Iowa Sen. Chuck Grassley, the bill (S.1312) gives the attorney general power to file a civil suit against anyone suspected of committing or planning to commit "any action that constitutes or will constitute" a violation of various federal statutes. If a court agrees, the person or entity would have to stop whatever activity allegedly contributed to a current or future crime.

This is power above that of normal police and criminal law proceedings. It could allow the feds to preemptively shut down websites, search engines, social apps, browsers, encryption services, or brick-and-mortar businesses because criminals (broadly defined) might communicate there.

The power applies to suspected violations of the Mann Act (which prohibits driving adult sex workers across state lines, among other things), federal conspiracy statutes, and U.S. criminal-code sections 77 and 110. This is a massive category of offenses including everything from forced labor and sex trafficking to using misleading words, images or domain names to get someone to view obscenity, sexting with a minor (even if one is a minor), enticing someone to cross state lines for illicit-sex purposes, harboring an undocumented immigrant in a place of prostitution, publishing any details about a minor that are used in furtherance of a sex offense, unlawful conduct with immigration documents for work or sex purposes, or attempting or conspiring to commit any of the above.

The new TVPA will also make fighting "sexting and sextortion" and cyberbullying part of the mandate of the National Center for Missing and Exploited Children (NCMEC), a quasi-governmental group that runs on federal money and works closely with federal law enforcement. Fighting sextortion—someone spreading or threatening to spread sexual photos of someone else without their consent— is an invitation for the federal government to get involved in teen sexting cases.

All this while setting aside a lot of money for programs of dubious value in stopping sexual exploitation. Like $7.5 million per year for presidential initiatives related to "economic alternatives to deter trafficking," border screening programs, and propaganda videos for showing abroad. That's on top of the $7.5 million allotted for unspecified presidential "projects aimed at preventing trafficking" and "promoting respect for human rights."

Abolish Human Trafficking Act

This Act (S. 1311), would allow judges to hand down to repeat sex offenders of any sort (including first-time federal offenders with any state or local sex-offenses on their record) prison sentences three times the length of what would otherwise be allowed.

The measure bans federal agencies and anyone using any federal funds or resources from partnering with any program that provides resources to anyone who "derives profits from the commercial sex trade." In other words, no one who gets federal grant money—to help human trafficking victims or anything else—can knowingly work with any sex workers or any nonprofits that offer support to sex workers.

Meanwhile, federal anti-trafficking curricula would have to include information on "arresting and prosecuting buyers of commercial sex"—part of the growing federal consensus that "any comprehensive approach to eliminating human trafficking shall include a demand reduction component."

Homeland Security staff, U.S. prosecutors, and police participating in anti-trafficking task forces would be trained on prosecuting sex buyers for human trafficking. And grants under the Violence Against Women Act and various child abuse statutes could be used to fight against prostitution broadly.

Together, these bills are not entirely horrible. They require the FBI, the Department of Homeland Security (DHS), and other agencies to collect data about arrests and their grounds in anti-trafficking initiatives. For the first time, the Justice Department must track how many people are picked up by Operation Cross Country, for example, and with what they are charged. Officials will also have to keep track not only of the number of National Human Trafficking Hotline tips, but how many actually lead to federal cases.

But the bills' upsides are few, squeezed as they are between the grotesque bureaucracy building and impositions on civil liberties.