Last week, a Judiciary Committee panel unanimously voted to progress a bill called EARN IT to a vote in the Senate—but internet free speech advocates have loudly denounced the bill as dangerous and destructive, and a way to further surveil speech online.
The Eliminating Abusive and Rampant Neglect of Interactive Technologies Act, known as EARN IT, was introduced in March by senator Lindsey Graham (R-SC). Proponents of the bill say that it's meant to prevent child sexual abuse online by recommending tech companies meet certain standards.
As with the catastrophically destructive passage of the Fight Online Sex Trafficking Act of 2018—which, like EARN IT, was pitched as a way to stop child trafficking but trampled on sexual speech everywhere on the internet—sex worker advocacy groups have been sounding the alarm on EARN IT since its inception. The ACLU called it "a disaster" for privacy, especially for LGBTQ and sex working communities, and the Electronic Frontier Foundation wrote that these vague and undefined "best practices" violate the Constitution.
EARN IT calls for the formation of a National Commission on Online Child Sexual Exploitation Prevention that would develop yet-to-be-defined "best practices" meant to "prevent, reduce, and respond to the online sexual exploitation of children, including the enticement, grooming, sex trafficking, and sexual abuse of children and the proliferation of online child sexual abuse material," according to the bill's text. Like previous discussions on SESTA/FOSTA, this commission excludes sex worker advocates and would be comprised of law enforcement officials and industry representatives who have no incentives to prevent harm to sex workers and other vulnerable groups.
Graham amended the bill just before the Judiciary Committee hearing, changing the language to call for the use of state-by-state laws and removing the clause that tech platforms would need to undergo a certification process to avoid penalties. But the bill still has the potential to be seriously damaging to free speech and directly harmful to anyone who uses encryption-based communication services, experts say—including sex workers and any already-marginalized internet users who are dependent on encrypted messaging to stay safe.
The bill's sponsors are adamant that encryption won't be affected. Section nine of the EARN IT text states that "nothing in this Act or the amendments made by this Act shall be construed to require a provider of an interactive computer service to search, screen, or scan for instances of online child sexual exploitation."
This is not reassuring to internet freedom advocates, adult industry attorney Maxine Lynn told Motherboard.
"Practically speaking, how else is a platform supposed to 'prevent' the sharing of abusive material?" she said. "An interactive computer service would have to police the actions of users, which is impossible to be perfectly tailored with current technology, inevitably resulting in censorship of communications that don’t relate to child exploitation. This would (further) devastate the sex worker community."
Emma Llansó at the Center for Democracy and Technology wrote on Wednesday that even with the amendment, the "rotten core" of EARN IT remains. "Threatening intermediaries with vague and expansive liability for user-generated content is not the right way to fight the sexual exploitation of children, and is a surefire way to discourage encryption and censor an incredible amount of constitutionally protected speech," Llansó wrote.
Because the latest amendment calls on state-by-state laws to apply—and states have varying laws around child sexual abuse material, platforms will either restrict what's allowed even more to avoid being sued, or pretend they do not see it altogether.
"Intermediaries will lack certainty about what activity could expose them to legal risk, leading them to take the most risk-averse approaches," Llansó wrote. "This could involve significantly restricting the ability of children to use their service, or blocking any content (including perfectly lawful, constitutionally protected speech) that depicts nudity or sexual themes."
The day before the judicial committee hearing, defense attorney Jared Trujillo wrote that EARN IT would be "a death blow to internet privacy, and the end of needed online mediums the most marginalized LGBTQ+ communities rely on to survive." Like SESTA/FOSTA, he wrote, "preventing the passage of the EARN IT Act is a matter of life or death for our community."
"The privacy and security of all users will suffer if U.S. law enforcement is able to achieve its dream of breaking encryption," EFF privacy analyst Joe Mullin wrote in March.
"Legal content and discussion relating to sex, sexuality, legally-generated pornography, as well as sex work, is getting filtered out in the mix."
Riana Pfefferkorn at the Center for Internet and Society at Stanford Law wrote in January, when Graham filed a discussion draft of the bill, that EARN IT "is trying to convert your anger at Big Tech into law enforcement’s long-desired dream of banning strong encryption. It is a bait-and-switch. Don’t fall for it."
In May, representative Anna Eshoo and senator Ron Wyden introduced the Invest in Child Safety Act as a potential alternative to EARN IT. Their bill proposes $5 billion in mandatory funding to investigate and target people who create and share child sexual abuse material online. Sex workers said this wouldn't go far enough to protect them.
Encrypted communications platforms themselves are also concerned about EARN IT's repercussions. In April, the encrypted messaging app Signal threatened to leave the US market if EARN IT passed.
“Some large tech behemoths could hypothetically shoulder the enormous financial burden of handling hundreds of new lawsuits if they suddenly became responsible for the random things their users say, but it would not be possible for a small nonprofit like Signal to continue to operate within the United States,” Signal developer Joshua Lund wrote in a blog post.
As we saw happen with FOSTA, which led to the shutdown of everything from furry dating sites to Craigslist personals, what affects sex workers and marginalized communities on the internet affects everyone.
"Websites are trying to minimize their risk by using filters and monitoring content and communication," Lynn said. "Legal content and discussion relating to sex, sexuality, legally-generated pornography, as well as sex work, is getting filtered out in the mix. This is government-created censorship."