With the Senate back in session this week, today saw the introduction of a new law dedicated towards addressing child sexual exploitation: the Invest in Child Safety Act. Sponsored by Senator Ron Wyden and four Democratic colleagues, the law is offered as an alternative to the EARN IT Act, which experts had criticized for placing too much responsibility on Internet companies to address this problem. The Invest in Child Safety Act avoids the most serious flaws of the EARN IT Act, by recognizing that for all the criticism that Internet companies haven’t been taking this problem seriously, the government has been lagging much further behind in its own response.
What would the law do?
In a nutshell, the Invest in Child Safety Act would create a new Office to Enforce and Protect Against Child Sexual Exploitation, which would manage a Child Sexual Exploitation Treatment, Support, and Prevention Fund. The fund would contain $5 billion to be allocated between 2021 and 2030 to a variety of agencies for programs or activities directed at addressing child sexual exploitation. The Act also makes a few other minor changes to the law, including increasing the timeframe that authorities have to act on reports about child abuse materials received from platforms, before the platforms are required to delete those materials.
One of the most welcome priorities set by the Invest in Child Safety Act is the establishment of a mandate for the Department of Health and the Department of Justice to collaborate on a major study to identify risk factors of child sexual exploitation, as well as to identify and evaluate promising child sexual exploitation prevention services and programs. This mandate appears to have been added to the draft bill after we were informally consulted about it in early March, perhaps responding to our joint letter of prevention experts urging that more attention be paid to this area.
This significant investment in addressing child sexual exploitation is welcome, and so is the abandonment of the politically convenient but false narrative that private Internet companies ought to be responsible for leading this battle. Yet there are still ways in which the Invest in Child Safety Act falls into a similar trap as EARN IT, by failing to take prevention as seriously as it takes enforcement. Although we support the Invest in Child Safety Act over the EARN IT Act, improvements to the former bill ought to be made before it passes into law.
Our biggest concern
The biggest concern that we have with the Invest in Child Safety Act is that it seems to be engineered to ensure that most of the funds allocated to the Child Sexual Exploitation Treatment, Support, and Prevention Fund will go towards law enforcement, rather than public health based prevention interventions.
One of the key ways in which it does this is by providing that the Director of the Office to Enforce and Protect Against Child Sexual Exploitation must be experienced in investigating and prosecuting child sexual exploitation crimes. Such a person will be predisposed to approach the issue as fundamentally a criminal justice problem, rather than more holistically as a preventable public health problem.
Some of the law enforcement programs that the Act specifically identifies as candidates for funding have historically perpetrated official violence against sex workers, immigrants, sexually active minors, LGBTQ+ people, and creative communities. These include ICE’s sex trafficking unit, the FBI’s human trafficking task force, and the obscenity section of the Department of Justice.
How this could harm minorities
We need to be cautious about assuming that more money to these agencies won’t be used to perpetrate similar violence against minorities on an even greater scale. We would all hope that money dedicated to human trafficking task forces will go predominantly towards arresting criminals who abduct minors into sexual slavery. But the reality it is that it will instead be used predominantly to prosecute adult sex workers and their support networks.
Similarly, we might hope that money dedicated to the prosecuting cases of child exploitation and obscenity are directed mainly towards real abuse images rather than pornography. However, this too could be a vain hope. A unfulfilled election promise that President Trump made was to enforce obscenity laws against publishers of hard core pornography. Pressure from conservative groups has been building for him to live up to this promise, and new funding may be all the excuse needed for the Department of Justice to do just that.
Even additional funding for crimes against children units may not be expended in a way that prioritizes the prosecution of those who have actually offended, or who pose a real and imminent risk to minors. The reality is that a large part of this money will inevitably go towards the favorite sting operation of police forces around the country, in which officers pose as minors online, and attempt to goad online perpetrators into taking steps towards an illicit meeting with a non-existent child.
Our point isn’t that no money should be spent on these agencies or programs, because along with their more questionable efforts, they do also provide a necessary service in bringing some perpetrators of abuse to justice. But any expansion of their funding should go hand in hand with the expansion of a requirement to be more accountable for how their work addresses real-life abuse.
In fairness, the Act does begin to do that by requiring the Government Accountability Office to study and report on all federal funding under the law. We support this as an important step in ensuring that law enforcement’s child protection agenda is actually oriented towards harm reduction and prevention.
Despite our concerns that the Office to Enforce and Protect Against Child Sexual Exploitation would be led by a law enforcement officer, it is commendable that the Act does recognize the impact that broader social interventions can have on the prevention of child sexual abuse.
For example, since one of the highest risk factors for children to fall victim to abuse is homelessness, the first program that the Act identifies that could be funded from the Child Sexual Exploitation Treatment, Support, and Prevention Fund is the Street Outreach Program of the Department of Health and Human Services.
The Act also authorizes the disbursement of funds for mental health services providers in schools, and also for training of mental health services providers. Although it justifies this for detecting abuse and providing support to victims, it is also important in the context that about a third of those who perpetrate child sexual abuse are minors themselves. Some of them also identify as being preferentially attracted to younger children.
Other prevention interventions that the Act identifies as worthy of funding include community education, information and training to individuals and organizations providing assistance to victims, and providing grants for the purpose of providing street-based services to runaway and homeless youth.
What about preventing perpetration?
One of the biggest gaps in the areas identified for funding is in providing information and support to potential perpetrators of abuse, that could lead them away from offending. This is probably not an accidental omission, nor is it an unusual one. For example, Department of Justice grantees are also largely excluded from using any funds for the support of perpetrators. Yet as important as it is to fund prevention interventions that are focused on reducing risk factors of potential victims, ignoring interventions focused on potential perpetrators is a real blind spot that we ignore at our peril.
One of the researchers that Prostasia Foundation works with (who has requested to be kept anonymous in this article) explains how after being knocked back by funder after funder, “trying to find funding for this topic is incredibly difficult.” They go on to explain:
In my own experience, I’ve found that funders are personally very curious about the idea and willing to acknowledge the importance of research into the prevention of child sexual abuse. But as soon as you mention that you want to work with those individuals at risk of committing the abuse, the curiosity disappears. Some more adventurous responses have said yes, this is an important topic, but it is not in line with our “funding priorities” right now. That is actually a very common response. Instead of funding solid, hypothesis-driven, empirical work, funders instead shy away and researchers are left to pursue piecemeal science from whatever remaining sources are available. Money for criminal justice/forensic applications is available in what feels like spades, but this money again does not usually allow for the empirical investigation of prevention models/etiology of deviant preferences/risk factors for abuse. The tides appear to be shifting, but it is still a long road to adequate funding for those of us working in the child sexual abuse prevention realm.
We would like to see this blind spot directly addressed in the Invest in Child Safety Act. Despite how leery Congress is of touching this controversial subject, every recent independent inquiry into solving the problem of child sexual exploitation has reached the same conclusion: that there is a real unmet need for outreach to communities that have an elevated risk of offending, and for research into how prevention works best in these communities.
To give just one example, the 2019 Action Plan of the Child Dignity Alliance (warning, the link is a Word document) identified as its primary goal the need for “early intervention with potential offenders before they offend, [that would] utilize the public health model and focus on primary prevention.”
Why this and why now?
If it comes down to a choice between the EARN IT Act and the Invest in Child Safety Act, we support the latter—no question. But we shouldn’t forgo our opportunity to make the Invest in Child Safety Act better if we can.
For those who remember how the putative anti-trafficking law FOSTA came together, this turn of events should seem familiar. The original version of FOSTA as introduced in the Senate was called SESTA, and it addressed its subject in a narrow way that was limited to sex trafficking as such—essentially, sex work that is coerced or involves a minor victim. However despite its narrow scope, the obligations that it placed upon Internet platforms to avoid facilitating sex trafficking were extremely onerous.
FOSTA was originally introduced in the House as an alternative. In its original form, it would have loosened the obligations on Internet platforms (which would apply only if the platform intended to facilitate a crime), while at the same time broadening the scope of the law so that it was not directed only at sex trafficking, but at all forms of sex work. Since this addressed their main concerns, key SESTA opponents such as Facebook and the Internet Association threw their support behind FOSTA as a “less bad” compromise. Unfortunately however, the gains that they thought they had achieved were erased when the FOSTA and SESTA bills were brought into alignment, bringing back the heightened obligations on platforms, and creating a hybrid that was described as the worst of both worlds.
Will history repeat itself with the EARN IT Act and the Invest in Child Safety Act? Certainly, this isn’t the intention of the principal sponsor of the Invest in Child Safety Act, Oregon Senator Ron Wyden, who was also the author of Section 230, the safe harbor law that EARN IT proponents are seeking to dismantle. But there is still the risk that in their zeal to promote an alternative to EARN IT, some of the new supporters of the Invest in Child Safety Act (which include several computer science experts, the Open Technology Institute, and the Center for Democracy and Technology) may be tempted to overlook its flaws and their impacts on minority groups.
Prostasia Foundation welcomes the introduction of an alternative to the politically opportunistic and harmful EARN IT Act. It’s clear that, unlike the EARN IT Act, prevention experts contributed to the development of the Invest in Child Safety Act. It has the potential to be a game-changing law. But part of this game change has to be a recognition that child sexual exploitation isn’t primarily a criminal justice problem, it’s a public health problem.
Attempts to address child exploitation lends themselves to populist solutions. With these two proposed laws, we risk swinging from one populist approach—treating child exploitation as a problem that Internet companies can solve—to another, treating it as a problem that the criminal justice system can solve.
Most people take a deep visceral comfort in the idea that people who sexually abuse children should suffer severe and lifelong consequences. It’s true that the nature of our political system is such that this deeply popular approach will always rule the day, and we don’t dispute that a boost in enforcement funding will likely remain a core component of the Invest in Child Safety Act.
Our criminal justice system works in such a way that the consequences that we want to see inflicted on those who perpetrate evil acts don’t just fall on them.
But it’s also true our criminal justice system works in such a way that the consequences that we want to see inflicted on those who perpetrate evil acts don’t just fall on them. They too often predominantly fall on innocent members of marginalized communities, on families, and on children themselves. To the extent that the Invest in Child Safety Act executes a hard pivot towards law enforcement, we would like to see this balanced with a more community-oriented, preventative approach.
The good news is that the Invest in Child Safety Act lays most of the groundwork for this more balanced approach towards the problem. In fact, many of the safeguards that we would like to see would flow from one very simple change—removing the requirement that the Director of the Office to Enforce and Protect Against Child Sexual Exploitation must have a law enforcement background. While this is one potential qualification for a Director, we believe that individuals with a public health background should also be considered.
We would also like to see the Act amended to explicitly include funding for primary prevention initiatives, including those geared towards potential perpetrators, rather than only interventions that target victims. And finally, we encourage the bill’s sponsors to consider amendments to make the bill’s enforcement provisions more tightly targeted on child sexual abuse, to avoid funds being diverted into a larger war on sex work and pornography.
To support the Invest in Child Safety Act, with the simple amendments that we are suggesting to tighten its focus on prevention, you can write to your representative below.
How do we make it clear we do not want enforcement against fictional depictions?
Great question, and the answer is that Prostasia Foundation will be proposing some amendments that would take care of that. Once they are ready I’ll post the link to an action form that you can take to support these amendments.
Excellent. Obscene fictional representations have no victim so I would hope this horrible aspect of the statue dies. If it doesn’t get enforced, it will essentially be forgotten, like most other stupid laws like “You can stack horse manure over 6 ft high:”. In Oakland, cross dressing was illegal until fairly recently, yet there has been pretty much no prosecution for decades. This is because laws die by either being repealed or ignored long enough by the government.
Reading through some users here, it seems a couple individuals are terrified of being indited for accessing fictional depictions. I don’t know whether they have or not, but their posts seem to imply they might have at some point. The Status of limitations for 1466 violations is very long because it’s a federal felony, I think 60 months from date of offense.
I can sort of understand the existence of some obscenity law, for example, I’m ok with preventing a recordings of a man being prison raped from being distributed, since it can be argued circulation can revictimizing the rape victim. But a fictional work like a manga drawing of a prison rape scene for example should be protected. Our laws need to be based on whether there is a victim or not.
Consensual adult porn, and fictional works of drawings and 3D works should be protected as there are no victims.
A possible amendment?
Prosecutorial and law enforcement funding must be used exclusively for prosecuting USC 2252 violations. You know, unlawful sexual videos and photographs of children. Nothing should go to prosecuting consensual adult porn nor drawings.
Thanks Katya, but we settled on something even simpler. Since there is already a legal definition of “child exploitation offenses,” which would exclude obscenity crimes and sex trafficking of adults, we just incorporated that into our suggested amendments.
Here is our letter to the bill’s sponsors.
And here is where you can tell them that you support the bill with our amendments.
Continue the discussion at forum.prostasia.org
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