Recently, Senators Lindsey Graham (R-SC), Richard Blumenthal (D-CT), and others reintroduced the “EARN IT Act” to increase the liability of platforms with respect to unlawful child abuse material. Platforms that knowingly carry such material can already be held criminally liable, but the bill subjects platforms to state and federal civil liability, as well as state criminal law, in this area. It also creates a federal commission to recommend platform design best practices. “STOP CSAM Act,” a bill that includes provisions that make platforms liable for child abuse material but that would also encourage more content monitoring and moderation by platforms, was previously scheduled for a markup with EARN IT Act and will likely be scheduled for the same markup soon.
Congress should act to curb the scourge of child exploitation online. However, the EARN IT Act creates a process that could harm user security and privacy by disincentivizing the use of privacy-protecting technologies such as encryption, disproportionately putting marginalized communities at risk. This would be destructive and unnecessary, as pointed out by Public Knowledge in its updated Section 230 reform scorecard and more than 60 public interest groups in a letter urging Congress to oppose the bill last year.
The following can be attributed to Greg Guice, Director of Government Affairs at Public Knowledge:
“Over the last year, we have seen major new laws passed in states that put many in the LGBTQ+ community at risk, from drag performers to transgender kids and their parents. We have seen decisions from the Supreme Court and federal district courts along with state legislatures undermining the freedoms women have in their bodily autonomy. All to say, the world has changed substantially since EARN IT Act was last introduced.
“Encryption and privacy, crucial for us all, are at an even higher premium for these vulnerable communities. While this fact in no way minimizes the horrific material EARN IT seeks to stop, the method of addressing child abuse material under the EARN IT Act simply puts too many at risk – all for a speculative structure that, if past is prologue, will lead to less protection for child abuse victims by driving the purveyors of this disgusting material to places outside the purview of law enforcement. Section 230 already has an exception for criminal acts, including distribution of child abuse material, so this is obviously not the solution.
“If we want to address the harm that is caused by child abuse material, then treat it as it should be treated – as a law enforcement matter.”
You may view our letter to Congress opposing the EARN IT Act for encouraging online censorship and jeopardizing access to encrypted services. You may also view our factsheet, “EARN IT Act Does Not Do Enough To Protect Encryption or Competition,” for more information on our concerns, as well as our principles to ensure that any Section 230 reform still protects free expression online – a test EARN IT Act clearly fails in our updated Section 230 scorecard.
Members of the media may contact Communications Director Shiva Stella with inquiries, interview requests, or to join the Public Knowledge press list at email@example.com or 405-249-9435.