Editor’s Note: Prostasia is reprinting useful material from our newsletter for blog readers. This essay first ran in the July 2020 newsletter. We’re republishing it now because the EARN IT Act has just been reintroduced, and is due for its first committee markup hearing on February 3, 2022. To keep up to date on everything happening at Prostasia, you can sign up for the newsletter here.
On July 2, 2020, the EARN IT Act unanimously passed a vote of the Senate Judiciary Committee—the last stage that it needed to pass before being considered by the full Senate. But it’s not the same EARN IT Act that we have been campaigning against since March. The law was abruptly rewritten ahead of the Judiciary Committee hearing, and although superficially similar, it’s now a very different beast. But it could still eviscerate the freedom and security of the Internet, while doing nothing new to protect children.
What hasn’t changed under the new version of the EARN IT Act, is that it continues to force Internet companies to shoulder full responsibility for the detection and prevention of online child sexual exploitation, as if they were the one and only solution to that problem. As we and other groups have pointed out, that simply isn’t the case. What’s new is where the pressure on Internet companies comes from: under the original EARN IT Act, it would have come from an unelected 19 member committee, whose membership is heavily biased towards law enforcement. Internet platforms would become directly responsible for online child exploitation on their platforms if they failed to follow that censorship committee’s recommendations.
The censorship committee still exists under the new version of the EARN IT Act—but probably in recognition of the constitutional problems of allowing it to write rules for the Internet, its recommendations will now be advisory only. That doesn’t mean that they won’t still be influential—when Internet companies face lawsuits over whether they have done enough to prevent abuse (more on that below), the existence of industry best practices is a factor that courts will consider. By constructing a body that is meant to establish such best practices (albeit with a structural bias towards law enforcement), the intention remains that the censorship committee will have a heavy influence on how Internet platforms operate.
Legally however, the teeth of the new version of the EARN IT Act have shifted to the states. Rather than making Internet platforms responsible for abuse on their platforms if they fail to comply with the censorship committee’s recommendations, under the new version of the act they will be treated as criminally and/or civilly responsible if a state law says so. As before, the hoops that companies might have to jump through to avoid liability under state law are left unclear by the new version of the law—except that in response to criticism, it clarifies that the simple use of “end-to-end encryption, device encryption, or other encryption services” won’t be enough to trigger liability.
The amended version of the law hasn’t made things better, and in some ways they are now worse. Under the original version of the law, platforms still enjoyed a “safe harbor” of immunity from liability, provided that they had taken whatever steps the censorship committee had laid out for them. Under the new version, there is no safe harbor, and no way to “earn” one. If a prosecutor or a civil litigant fancies their chances of proving that a tech platform has been involved in the “advertisement, promotion, presentation, distribution, or solicitation of child sexual abuse material,” the platform has no choice but to face that allegation in court.
We’ve seen this before, of course. The new version of EARN IT now bears a much closer resemblance to FOSTA, the harmful law that made Internet platforms responsible for sex trafficking, and which resulted not only in adult sex workers being cast offline, but also the deletion of platforms used by non-sex workers such as Craiglist’s personals column, and a range of other material about sex, including child sexual abuse prevention resources. Just like FOSTA, EARN IT will inevitably chill speech about sex even further, as companies raze their platforms clean of anything that could possibly trigger lawsuits, which are a costly nuisance whether they succeed or not.
There is an alternative to EARN IT, the Invest in Child Safety Act, that we support. Rather than taking an easy pot shot at “big tech” as EARN IT does, the Invest in Child Safety Act recognizes that the problem of CSA is a complex one that will require more than just censorship and surveillance to solve. In what could be an historic boost to prevention funding, the law would fund a record $5 billion in prevention and enforcement interventions over 10 years. But the law doesn’t stand a good chance in the current Congress, simply because it doesn’t yet have any Republican co-sponsors.
We still believe that the Invest in Child Safety Act deserves a shot, and we encourage you to contact your representatives (especially if they are Republicans!) to support that law. But first things first—EARN IT urgently needs to be defeated in the Senate. The best case we have to defeat it is not to focus on how damaging it would be to the free and open Internet—even though that’s true—because quite understandably, politicians are more concerned about children’s safety than they are about our freedoms online.
The better way to defeat the EARN IT Act is to point out that it quite simply won’t do what it claims to do—it won’t make children safer. As the group of experts who signed our letter against the law pointed out in March, “It isn’t a matter of Internet platforms being unwilling to provide a comprehensive response to the problem—they simply can’t. And no matter how the EARN IT Act may attempt to compel them to do so, and no matter how popular this approach may be in the climate of the present ‘techlash,’ it is ultimately bound to fail.”
If you are in the United States, now is the time to write to your Senator urging them to vote against this harmful law, that is driven by stigma and populist “anti-tech” sentiment, rather than following the recommendations of the country’s leading child sexual abuse prevention experts. You can write an email to your representative in less then five minutes by clicking the button below—then please follow up with a phone call to their office. Together, we can defeat the EARN IT Act and promote better solutions that protect children while also upholding your rights online.