We can all agree that child sexual abuse is bad, right? Action that makes it easier to catch predators is usually assumed to be a good thing.
Supposedly, protecting kids is the aim of the EARN IT Act, which is why it has such huge support among politicians of both parties. They want the easy win of a headline that says they are fighting predators. In reality, the bill is based on a misunderstanding of both technology and communications law and will do anything but what it claims.
What is the EARN IT Act?
EARN IT was first introduced in the Senate in 2020 but was beaten back. A variety of privacy experts, LGBTQ activists, technology companies, sexual health educators, sex workers and free speech advocates joined forces to point out the bill doesn’t actually help kids … but it does hurt everyone on the internet.
Despite that, the bill is back and moving forward with full force. On February 10 the EARN IT Act was revived and passed through the Judiciary Committee. Its next move will be the Senate floor, where its opponents say it poses the threat of eradicating online privacy, censoring sexuality information, and — ironically — making it harder to stop people who prey on children.
Experts say the EARN IT Act will not achieve its purported goal of combating child sexual abuse materials (CSAM) online. Posting those images is already illegal and tech companies are already required turn them over to the authorities when they find them. They do so frequently, and inexplicably many of the leads are never pursued by police.
This bill was originally schemed up during the Trump administration as part of his efforts to curtail criticism of him online and force websites to give a platform to misinformation. Trump wanted to change the Communications Decency Act, specifically Section 230 — which allows websites to moderate content and avoid legal liability for what users post.
This bill would make platforms liable for whatever is posted on their site, which gives them a big motivation to censor anything that remotely smells of sexuality, even if it’s not CSAM. We know that sites routinely err on the side of abridging free speech, especially if it relates to sexuality or LGBTQ issues.
Lessons from FOSTA-SESTA
We’ve already experienced this chilling effect from FOSTA-SESTA, a bill passed in 2018 that claimed to combat human trafficking, but only ended up censoring adults and making life more dangerous for sex workers.
Though FOSTA-SESTA was created with the stated goal of protecting trafficking victims, there is no evidence that’s happened. However, we have several years of proof that it has actually made it harder to find trafficked people, that websites are now heavily censoring lots of content, and that people in adult industries are facing far more danger.
But EARN IT is even more dangerous than FOSTA-SESTA. The bill would undermine privacy by discouraging companies from using end-to-end encryption, so they wouldn’t risk being held liable for CSAM. It also potentially gives the government more backdoor access to all your private communications and makes users more vulnerable to other kinds of “cyber threats,” according to online privacy activists.
And that’s only one reason to be alarmed. If we do want to combat the issue of CSAM, this bill poses a threat of making it much worse.
Why EARN IT will endanger kids, not help them
EARN IT is based on a misunderstanding of how Section 230 works. Right now, tech companies have a variety of moderation options to deal with illicit content posted by users. They can try different approaches to see what is effective without fear of being held liable for things that slip through the cracks of an algorithm. Removing their liability protection will make it less likely that companies “seek out, take down and report CSAM,” according to opponents.
Smaller online platforms — especially the ones hosting marginalized communities like LGBTQ activists, sexual health educators, sex workers, etc. — might be sued out of existence by anyone who wants to see them shut them down.
Further, the bill presents a huge constitutional issue, since it ignores Fourth Amendment protections from search and seizure. That could mean that distributors of CSAM could make a legitimate challenge to their arrests and convictions, throwing out the only real evidence that could be used against them. In this way, EARN IT makes it harder to put away predators.
What can be done to stop EARN IT?
While there is a lot of support for the act on both sides of the aisle, it can still be stopped before it’s law. There are online petitions to raise awareness. Activists and security experts are banding together to voice their opposition. Tech companies can make a big difference, as they were instrumental in blocking the bill when it was first introduced. And, as always, we can directly contact our representatives to express our concerns before it’s too late.