This article was posted 03/11/2020. For the most recent information on the EARN IT Act, please see updates here.
Why is the EARN IT Act important? Online child sexual exploitation is devastatingly real. The proliferation of child sexual abuse material (CSAM) online is growing at exponential rates. The technology companies driving the rapid ascent of digital platforms have built and fed into a global tragedy of sexual abuse and exploitation that humanity is only just beginning to grasp.
Is the EARN IT Act necessary? As it stands right now, there are virtually zero measures in place to prevent technology corporations from ignoring consumer safety on their quest to wringing profits from their Internet-connected platforms. Just as tragically and dangerously, there is virtually zero incentive for technology companies to become safer because they are currently granted carte blanche legal immunity by Section 230 of the United States’ Communications Decency Act.
What does that mean for real people in real life?
Suppose an online technology platform’s lack of safety features and irresponsible policies allowed a sexual predator to have access to your child in order to sexually abuse and exploit them. In this tragic scenario, you can’t bring a civil lawsuit against that online technology platform because Section 230 of the Communications Decency Act prevents them from being held liable in any way.
It’s why a company like Backpage.com was protected from civil liability for so long when their site was the largest purveyor of sex trafficking in the world. It’s why companies like Instagram, Snapchat, and TikTok (among others) aren’t being slammed with civil lawsuits even though sexual predators are able to get direct access to minors via technology platforms that lack appropriate safety features. It’s why Amazon isn’t concerned about legal repercussions stemming from the fact that a National Center for Missing and Exploited Children (NCMEC) investigation found 9x more instances of child sexual exploitation on its platform than Amazon itself reported finding.
What the EARN IT Act Means for Technology Companies and Online Child Sexual Exploitation
The Eliminating Abusive and Rampant Neglect of Interactive Technologies (EARN IT) Act would create incentives for companies to “earn” liability protection for violations of laws related to online child sexual abuse material — rather than just granting them liability protection at the outset. The EARN IT Act — which was introduced by Senate Judiciary Committee Chairman Lindsey Graham (R-South Carolina) and U.S. Senators Richard Blumenthal (D-Connecticut), Josh Hawley (R-Missouri) and Ranking Member Dianne Feinstein (D-California) — aims to ensure that tech companies are using best business practices to prevent child exploitation online.
“Right now, Big Tech has no incentive to prevent predators from grooming, recruiting, and trafficking children online and as a result countless children have fallen victim to child abusers on platforms like Instagram, Snapchat, and TikTok,” said Patrick A. Trueman, president and CEO of the National Center on Sexual Exploitation. “EARN IT gives us these missing incentives by making the current gift of immunity under the Communications Decency Act Section 230 conditional. To keep immunity, social media platforms will have to demonstrate they are actively working to prevent online sexual exploitation of minors and child sexual abuse material (CSAM).”
How Does the EARN IT Act Work?
To develop and determine the voluntary best practices that technology companies will have the choice to observe (or ignore), the EARN IT Act sets up a 19-member commission comprised of federal officials AND representatives from law enforcement, victim-survivors of child sexual exploitation, technology experts, legal experts, and representatives from technology companies. At least 14 members of the commission must support a best practice before it is approved and the bill holds that six of the 19 committee members are technology experts (two members) and representatives of technology companies (four members).
After best practices are approved by the commission, the attorney general, the secretary of homeland security, and the FTC chairman must then accept the recommendations as written in order to send them in front of Congress for confirmation (or reject them and send them back to the committee). After that, the recommendations of the commission only become official once Congress has voted to enact them.
Even after any recommendations are confirmed via Congressional vote, it’s important to remember, technology companies are not forced or compelled to follow the guidelines for best practices that have gone through this process. Adoption is voluntary and there is no direct punishment for technology companies who choose not to follow them. That is to say, the EARN IT Act provides a proverbial “carrot” of incentive rather than a “stick.”
Is the EARN IT Act Really a Threat to Encryption?
In a word, no.
But, in spite of the rigorous process and the safeguards built into it, Big Tech and its powerful lobby are geared up to bring strong opposition against the EARN IT Act. Opponents of the bill came out firing as soon as it was released (and even before it was released) by attempting to claim that the bill was a threat to end-to-end encryption and user privacy.
This unfounded accusation is little more than a red herring.
The EARN IT Act is not a threat to encryption. It is not a threat to user privacy. It is not a threat to technology companies. We have great confidence that the incredibly intelligent community of engineers and programmers behind our world’s rapid technological advancements can balance privacy protection with child protection.
Right now, though, we need your help in making this clear to the United States federal government.
We need the movement to end sexual exploitation, made up of passionate advocates such as yourself, to take a moment to advocate to Congress the importance of passing this bill. Members of Congress are MOST responsive to requests from their constituents because those are the ones who elect them to office.
To make your advocacy efforts more seamless, we’ve made an easy-to-use action (embedded below) that allows you to quickly email and tweet your senators in order to express your support of the EARN IT Act and to encourage them to support it as well.