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Prostitution and the Internet: Interview with Mike Godwin

The following was written by Mike Godwin of the Electronic Frontier Foundation in response to an inquiry by PENet.

1. What laws prohibit advertising sexual services for $ on the Internet. Would state laws prohibiting solicitation apply. What federal laws would apply?

In general, federal jurisdiction is limited to those crimes that involve interstate commerce in some way, or that use a mechanism of interstate commerce. Although there is no general federal anti-prostitution law, it's against federal law to travel in interstate commerce to commit an act of prostitution, and it's against federal law to use a means of interstate commerce to solicit "unlawful activity", which is defined in 18 USC 1952 as including prostitution in violation of state laws.

So, you can see, the federal and state laws interact in an interesting way.

The states' solicitation statutes would also reach any attempt at solicitation over the Internet, and unlike the federal statute, they don't require any interstate-commerce element. Even solicitation over a local computer BBS or local-area network (LAN) would qualify.

Note: advocacy of prostitution *in general* or advocacy of decriminalization qualify as protected speech under the First Amendment. Similarly, "how-to" information (such as how to go into business for yourself as a call girl) would be protected.

The interesting question would be one in which a house in a state where prostitution is legal puts an ad up on the Internet. Could you e-mail from California that you want an appointment at a brothel in Reno? My guess is that this would be legal.

2. Which enforcement agencies would address the above cases and under which laws? Local police? FBI? other? Have you heard of any enforcement along these lines?

FBI would be the primary agency dealing with general solicitation on the Internet. Secret Service, the other main computer cops, has no jurisdiction under 18 USC 1952 (the "promoting unlawful activities" statute).

State police agencies (Georgia's GBI, for example, or NY's state police) would have jurisdiction over any crime in which at least one element of the crime (including solicitation) occurred within state boundaries.

Ditto for local police.

3. What sort of system would police develop to enforce these laws? What I mean is...Currently police entrap prostitutes and clients by offering sexual services for money. If the prostitute agrees (in California), she has committed a crime. (To obtain a conviction, and "act of furtherance" is necessary...but that's a long story...)

I'm guessing they might use the network to set up an assignation, then arrest whoever showed up.

4. Are there any protections that would discourage police from becoming cyber decoys? I have heard that many officers enjoy playing computer games at the station during work hours. This form of entrapment could be that sort of game.

I doubt they're staying after hours to play this game--fortunately, the skills it takes to hang out on the Internet are greater than the ones it takes to play Sega.

Basically, if I were a sex worker, I'd avoid using the Net to meet new clients--my guess is that sex workers are less likely to run afoul of law enforcement if they use it solely for more general purposes, or to stay in contact with known clients. (Please note: This is not legal advice; it's simply a risk assessment.)

5. Commercial activities are discouraged...but is that just on discussion groups. I imagine bulletin boards could be developed on which pros could post ads. (Alt. is mostly client discussion.)

Basically, your understanding is correct here. Commerce is okay, so long as it's confined to appropriate newsgroups.

6. It seems that many sex workers feel that we may find allies on the net because of the free speech issues (among other reasons). Any comments on that?

I think the Net has a strong Libertarian bias, so that sex workers would likely find a more appreciative audience there. At the same time, it's a locus of increasing law-enforcement interest, which makes it more likely that any attempt to do sex-work-related commerce openly will draw unwelcome attention, either from cops or from those who like to report people to the police.

7. What are the legal implcations of trying to keep track of and share information about rapists and those who are violent to sex workers in a database, which could be accessed by sex workers?

The only real risk is libel, and that's not much of a risk since a) your data would not be generally available to the community, so it wouldn't harm a client's general reputation, and b) if you were nonnegligent in gathering and verifying the information, you wouldn't be liable even if it were to become generally known that So-and-so is said by the database to be an abusive client.

I'd say risks of that sort are pretty minimal.

An aggressive prosecutor might try to characterize such a network as a criminal conspiracy, but I think so long as the information there is not aimed at solicitation or conspiracy to commit crimes, but instead is focused on listing known dangerous persons, there could be no legal prosecution of the enterprise.

--Mike Godwin Wed Feb 1, 1995