The EARN IT Act is back bearing worrying implications for activists and free speech advocates

Melissa Kadri, Guest Writer

Photo//Pixaby.com

Senators Richard Blumental (D-CT) and Lindsey Graham (R-SC) have re-introduced the EARN IT Act, a bill lawmakers falsely claim will help fight child sexual abuse material (CSAM) online.

However, the bill will also introduce a worrisome new surveillance system that would erase many important privacy, security, and safety features on the internet used by people around the world. The bill doesn’t stop there; anything hosted online, ranging from private messages to photos to cloud services, would be scanned and automatically sent to law enforcement databases.

EARN IT failed in 2020 after being condemned by 71 human rights and LGBTQ+ advocacy associations in the country, including groups like the ACLU, Human Rights Watch, Amnesty, Center for Democracy & Technology, and more. Now, it’s being fast-tracked in Congress, with hopes to pass without the same opposition from before.

EARN It would allow every U.S. state or territory to make up their own internet regulations, allowing each state to pass whatever type of law they want, as long as those rules relate to child abuse online. Anything a state qualifies that goes against its regulations could be flagged to law enforcement. The bill would accomplish this by getting rid of Section 230, a law that has been in place since the 1990s that protects all websites who have user-generated content from being liable over what users post. The ACLU - American Civil Rights Union - describes the law as “foundational to modern online communications.” It is a bedrock for the modern internet.

The bill also establishes a National Commission on Online Child Sexual Exploitation Prevention, or NCOSEP for short, letting members of the Department of Justice and other agencies to develop “best practices” for internet companies to follow. The push behind the bill is a group known as NCOSE, formerly known as Morality in Media, an anti-lgbt conservative organization that has rebranded in hopes of accomplishing their ideologies of removing LGBT content online. The similarities in the acronyms might be on purpose, and the “best practices” developed would be broad and align with NCOSE’s original goals, to create an Judeo-Christian centered media culture. Alongside that, the DOJ has long sought to break end-to-end encryption, and these “best practices'' will most likely push for that to occur.

In the bill, a provision (Section 5, Page 16) claims it would protect online service providers that use encryption. However, this becomes a double-edged sword, because prosecutors and private attorneys could take websites to court and accuse their users of committing crimes and hiding them behind encryption as evidence. This strategy is specifically allowed under EARN IT. This would force websites to break end-to-end encryption and use government-approved scanning software to scan all files and messages for potential CSAM, avoiding liability.

Encryption is one of the only things protecting you as an individual from having your messages scanned by the government and third parties. Children who might be abused are most in need of encryption services - such as private messaging. This bill makes the most vulnerable users less safe online, and ensures that no one can have privacy, safety, or security. A backdoor in encryption makes it easier for predators to target children.

This law does not target Big Tech. It targets individual users, treating them all like potential criminals, as if they deserve to have every message, document, photo, scanned into government databases. It evades constitutional law by allowing the government to use private companies to do the dirty work of mass surveillance. This is the same technique used in 2021 when law enforcement agencies attempted to use Apple to scan users’ photos, a plan that was stalled due to how horrendous it was to privacy rights.

In a statement, Senator Blumenthal states that “Tech companies have long had ready access to low-cost, or even free tools to combat the scourge of child sexual abuse material but have failed to act. Millions of these horrifying images go unidentified and unreported by the tech platforms that host them because there are so few consequences when these companies look the other way. That ends with the EARN IT Act.”

This is just factually untrue, and this lie is perpetrated in the bill’s ‘Myth vs. Facts’ section. Tech companies in 2019 alone reported more than 45+ million cases to the NCMEC, the National Center for Missing and Exploited Children, and only a small amount of that was investigated. Tech companies are doing their job, and are in fact already held accountable for reporting CSAM. This bill provides no money and no resources to groups to investigate and prosecute the claims filed, and puts pressure on tech companies to do nothing lest they be held ‘accountable’.

Internet platforms do not benefit from CSAM, like the writers and backers of the bill propose. They have always treated this content as the illegal content that it is. Rather, they already have an incentive to remove and restrict this content.

Instead, this bill will force every platform you access to track any website you visit, anyone you talk to, the contents of your conversations, the things you look up, anything and everything would be documented. While surveillance isn’t new, the scale and force that this bill is threatening everyday Americans with is. The bill treats every user as if they are already a criminal and flags anything that can be deemed as “child pornography” by whatever a state legislature decides and sends it to the FBI and NCMEC. This is coming in an era where leaders like Texas Governor Greg Abott are calling books written primarily by women, LGBTQ+, and people of color as “pornographic.” This will extend to the internet to censor minorities.

If this bill were to become law, it will “encourage overbroad censorship to reduce the chance of being sued, spur efforts to encrypt everything to prevent awareness of unlawful content, or force companies to shut down to avoid the otherwise unsupportable legal risk,” writes Eric Goldman, law professor at Santa Clara University in a 2020 blog post.

This is a chilling bill that will have horrendous consequences for free speech globally, as many internet users outside the US depend on American-based laws to protect them online.

"The EARN IT Act is one of the most poorly conceived and dangerous pieces of Internet legislation I have seen in my entire career, and that’s saying a lot," said Evan Greer, director of Fight the Future, in a statement.

Section 230 has become a political punching bag to score attention in headlines, especially in an election year. The fact at the end of the day is this: Section 230 is working as intended by protecting users and platforms from being wrongfully sued over ever changing definitions of what is and isn’t allowed/tolerated. The issue is not Section 230, nor is it online platforms that are all doing their job.

What would happen if Section 230 was repealed? One scenario is that hundreds of thousands of smaller sites would end up going bankrupt and deleting themselves due to the onslaught of lawsuits they can not afford. Even Big Tech companies like Facebook/Meta cannot fight every single lawsuit. This will force companies to censor anything that will hold them liable, ranging from speech to images to videos, while also surveilling all of their users. This doesn’t even cover smaller websites, who could be sued out of existence. A lawsuit doesn’t mean a site is inherently guilty of any crime, and court costs add up.

Taking away Section 230 prevents smaller companies from their ability to compete with bigger ones. If Section 230 is gone, users might never have smaller websites again, essentially turning the entire internet into a mesh of Google, Facebook, and NYTimes. It seems as if no one is considering the downstream effects of this bill.

With all the flaws in the bill, it raises the question; will Michigan representatives stand behind a bill that will increase the amount of CSAM online, put activists' lives in danger, and end the open internet as we know it?

To get in touch with your congressional representatives, call the congressional switchboard at 202-224-3121.

Source: Freedom Network USA, ACLU, Them.us, Igraham.senate.gov, Congress.gov, Huffpost