EARN IT ACT Introduced

A bipartisan coalition of Senators has introduced the EARN IT Act (Eliminating Abusive and Rampant Neglect of Interactive Technologies Act) which will create a new government commission made up of administration and outside experts to set “best practices” for removing material from the web that is abusive or exploitative to children. The legislation is spearheaded by Sens. Lindsey Graham (R-S.C.), Josh Hawley (R-Mo.), Dianne Feinstein (D-Calif.), and Richard Blumenthal (D-Conn.). The commission will include the heads of the Departments of Justice and Homeland Security, as well as the head of the FTC and 16 other Congressionally appointed members.  Under the proposed legislation, these appointees will be drawn from law enforcement, survivors, victim service organizations, constitutional law experts, tech experts, and industry representatives.

Companies could be punished for failure to comply and could face legal consequences for their content. The bill amends Section 230 of the Communications Decency Act, which currently protects internet platforms from liability for the content they host.  Under the changes, some automatic protections will be lost; instead, they must be earned. Protections could remain if companies establish they have “other reasonable practices” set. The Act would “create incentives for companies to ‘earn’ liability protection for violations of laws related to online child sexual abuse material (CSAM).” Congress will be able to review best practices before companies can state that they comply with the bill. It also creates safe harbors for company liability and provides recourse for survivors and tools for law enforcement.

“I appreciate my colleagues working with me on this bill to ensure tech companies are using best business practices to prevent child exploitation online,” Sen. Graham said. “This bill is a major first step. For the first time, you will have to earn blanket liability protection when it comes to protecting minors. Our goal is to do this in a balanced way that doesn’t overly inhibit innovation, but forcibly deals with child exploitation.”

 “Technological advances have allowed the online exploitation of children to become much, much worse over recent years,” Sen. Feinstein said. “Companies must do more to combat this growing problem on their online platforms. Our bill would allow individuals to sue tech companies that don’t take proper steps to prevent online child exploitation, and it’s an important step to protect the most vulnerable among us.”

The EARN IT Act is supported by over 70 groups, including the National Center for Missing & Exploited Children (NCMEC), Rights4Girls, and the National Center on Sexual Exploitation.

However, there are several critics of the proposed law, including the Electronic Frontier Foundation and the American Civil Liberties Union. The EFF stated it was “custom-designed to break encryption” and the ACLU stated it “threatens the safety of activists, domestic violence victims, and millions of others who rely on strong encryption every day.” The Internet Association fears it will hinder industry efforts against online child exploitation. Meanwhile, Sen. Ron Wyden (D-Ore.) was also critical of the bill. He stated that the EARN IT Act was “a transparent and deeply cynical effort by a few well-connected corporations and the Trump administration to use child sexual abuse to their political advantage, the impact to free speech and the security and privacy of every single American be damned.”

Some view the bill as critical of encryption because “best practices” could allow law enforcement a back door to a user’s private conversations. Previously, Apple has been asked to unlock iPhones for criminal investigations and Facebook was asked to slow down the implementation of end-to-end encryption for its messaging platforms.

EARN IT Act is a piece of a larger resistance to Section 230. The DOJ discussed the law and its problems for harassment and child abuse and could address antitrust concerns because it could be used to curtail Big Tech.

Additionally, the DOJ released 11 “voluntary principles” to prevent child sexual exploitation and abuse online.