ESPLER Sounds the Alarm in Report on Sex Work and Privacy Rights

The 61-page report covers a great deal of ground, including extensive background information on how ESPLER went about compiling the report, the difficulty of getting information from law enforcement agencies (despite those agencies being legally compelled to provide the information in question) and the far-reaching implications of what ESPLER found in their research. I am not going to attempt to summarize the report in full here, just highlight some things that jumped off the page as I read it. I recommend reading the report in its entirety, if only to get a sense of the massive amount of data law enforcement is actively collecting in furtherance of its efforts to combat “human trafficking” – a term which is routinely conflated with volitional sex work by law enforcement, prosecutors and anti-prostitution activists.

Early in the report, ESPLER offers an eye-catching hypothetical, outlining how law enforcement’s methods of identifying, tracking and investigating suspected “human traffickers” could impact someone who has nothing to do with human trafficking – and nothing to do with sex work, for that matter.

“Imagine this: you pick your girlfriend up from work. Maybe the store she works at is in an area known for street prostitution, or maybe it shares a strip mall with an adult massage parlor. A pole camera left by police snaps a picture of your girlfriend getting in your car and feeds it through an Automated License Plate Reader (ALPR) database where it connects it to your name and adds you to a list. The next week you get a Dear John letter in the mail – maybe it’s from the local police or maybe from a nonprofit. It’s vaguely threatening and shaming, telling you that prostitution is associated with human trafficking, kidnapping, and drugs, and that the police are cracking down on people like you. Just a misunderstanding, you think. No big deal. But later that year, when you and your girlfriend are traveling home from overseas, you’re stopped at customs. They search your phone and laptop. They take your girlfriend aside and ask her where she met you, how long she’s known you, if she’s okay. Afterwards, she wonders if there’s something you’re not telling her. You don’t know it, but you’re in a database. It’s 2023 and this is the USA.”

This scenario might strike you as unlikely, but as ESPLER outlines in the report, it’s not as farfetched as it might sound on its face. For starters, as ESPLER notes, the ever-expanding definition of “human trafficking” and attempts to implicate third-parties as human traffickers for “facilitating” or “promoting” prostitution, renders it ever more likely that people who have done nothing like trafficking a person will be caught up in the widening law enforcement dragnet.

In the process of building databases filled with putative human trafficking suspects, law enforcement is essentially digitally “tagging” people believed to be involved in the crime. Thus, even if they’re never prosecuted, they’re left with what ESPLER terms a “spoiled identity.”

“Sex workers, our clients, our friends, cab drivers, nannies; we are all implicated as being part of or related to the ‘sex trafficking industry’ now,” ESPLER observes in the report, leading to a salient question: “What does it mean, in the age of social media, and unprecedented police surveillance, to manage such a spoiled identity?”

While it might not strike some readers as a significant aspect of the report, what ESPLER relates about the process of collecting the data – and law enforcement agencies’ heel-dragging in responding to properly filed requests for the information – is cause for concern to anybody who believes in the principles of transparency and accountability in government.

“Over the course of the project, we sent this request to 58 district attorneys, 37 probation departments, 58 sheriff’s departments, and 52 police departments across the state of California,” ESPLER writes. “We received partial, but varying records from most agencies. Those agencies that did not drag out the process denied the public records requests outright (read on for examples). Not one agency provided all of the records we requested, as they are required to do by the CPRA (California Public Records Act).”

ESPLER added that the Ventura Police Department, “like several other law enforcement agencies, never provided any documents, even after their initial acknowledgment, which means they’re in violation of the California Public Records Act.”

Moving on to the means by which law enforcement agencies collect information, ESPLER notes that while “open source” information means information that is “publicly available online, through the media, and through public records,” the databases used by law enforcement “maintain information on all of us that is beyond what anyone imagines when they hear ‘open source information.’”

According to ESPLER, law enforcement tools like TransUnion’s TLOxp, Thomson Reuters CLEAR, LexisNexis Accurint, and Coplink X “use web bots and scripts to capture and connect information from sex workers’ social media, online reviews, and profiles on various sites.”

ESPLER says these databases also incorporate:

• Location data either from publicly available sources, purchased from various phone apps, integrated from automated license plate reader databases, or integrated from other businesses owned by the same company
• Information from tax records about our homes and vehicles
• Information from other third party companies, such as car insurance, mortgage companies, and hotel chains
• Information from sales websites such as craigslist, cross referenced with your contact information
• Facial recognition and biometric profiling software to help the database recognize pictures of you all over the Internet by your face, tattoos, body type, etc.

“All of this information is constantly scraped and archived in the databases to be accessed by police anytime,” ESPLER notes. “Some databases even allow police to find a location that you visit frequently, and then query the database for other phones that also visit that location frequently.”

The information above is all in the first third of the ESPLER report – and it doesn’t get any less alarming as you read further. Some of the information is unsurprising (like the fact police are trained to monitor websites commonly used by sex workers and their clients), some of it reveals additional ways in which law enforcement is flouting legal standards and precedent which is supposed to be binding on them, like the search and seizure provisions of the Fourth Amendment and California’s Electronic Communications Privacy Act (CalECPA).

Again, I’ve only scratched the surface of ESPLER’s report in this post. There’s much more in the report, including additional detail about the technologies and methods being used by law enforcement in its efforts to crack down on sex work under the guise of combatting human trafficking – and how it all negatively impacts sex workers, their clients and our broader society. If you care about privacy, both your own and that of your fellow citizens, be they sex workers or not, it’s a document well worth reading in full. You can also get more information on the ESPLER website and CA4Privacy.org.

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