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The EARN IT Act is a Disaster for Online Speech and Privacy, Especially for the LGBTQ and Sex Worker Communities

Person typing on a laptop, depicting data breach with animation of open lock over image.
Child sexual exploitation is a serious problem that Congress should address. The EARN IT Act is not a solution to this problem.
Person typing on a laptop, depicting data breach with animation of open lock over image.
Kate Ruane,
Former Senior Legislative Counsel,
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June 30, 2020

After a month of unprecedented protests against police brutality across the country, in which encrypted communications have been essential for organizers and protesters to communicate safely, the Senate Judiciary Committee plans to take up a bill that will strike at the heart of encrypted communications and undermine free expression on the internet. The Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2020 (EARN IT Act) amends an existing federal law to force online platforms into changing how they moderate content online by scanning and censoring more of their users’ communications.

In addition to the harms against protesters, the EARN IT Act — like SESTA/FOSTA, which amended the same provision a few years ago — threatens our online speech and privacy rights in ways that will disproportionately harm LGBTQ people, sex workers and others who use the internet to privately communicate and share information and resources. The Senate Judiciary Committee is getting ready to vote on it on Thursday, July 2. We sent a letter yesterday urging committee members to vote against this dangerous bill.

The EARN IT Act purports to require online platforms to “earn” certain protections from liability. Current federal law, through a provision known as Section 230 of the Communications Decency Act (CDA 230), generally shields platforms from legal liability for content provided by users, something that is foundational to modern online communications. The EARN IT Act conditions this shield on “voluntary” compliance with best practices to combat online child sexual exploitation and to limit children’s access to certain content through age gating and age rating practices, which are policies designed to keep youth from exposure to certain content.
Most troubling, the bill tasks an unelected commission with writing the best practices. The commission will not include representation from the LGBTQ, sex worker, or other marginalized communities. And to make matters worse, the bill provides the commission too much discretion to recommend policies that undermine strong encryption and free speech. For good measure, the bill stacks the deck to coerce platforms into certifying compliance with best practices and backs any false certifications with criminal penalties. In other words, the “voluntary” best practices are mandatory.

To be clear, child sexual exploitation is a serious problem that Congress should address. But this bill is not a solution. For one thing, the existing law does not protect platforms from liability for federal crimes like child sexual exploitation. Also, the bill does not at all tackle known deficiencies in our response to this problem. For instance, it provides no assistance for prevention programs and makes no attempt to address the root causes of the problem. Rather than provide measured solutions that would protect children, the EARN IT Act instead needlessly threatens our privacy and online speech rights.

Attorney General William Barr, who will head the commission that writes the best practices and have near veto power over them, has identified strong encryption as one of the primary bars to effective law enforcement. Thus, it is particularly concerning that the EARN IT Act provides broad latitude for “best practices” that involve building vulnerabilities into encrypted communications — vulnerabilities like “back doors” for law enforcement that are really open doors for bad actors or mass scanning of private communications.

Any threat to encryption is a threat to the privacy and safety of every American, but particularly to the LGBTQ community, sex workers, and to other vulnerable and marginalized groups. Strong encryption can be vital to many in the LGBTQ community who rely on the internet to access a support network, seek resources to combat discrimination and abuse, and find doctors and treatment to assist with transition, HIV prevention, and other health concerns. Now, as many in our country take to the streets to demand racial justice, encryption is critical for organizing protests and ensuring the safety of protesters. Even more, when companies weaken encryption for U.S. consumers, they are poorly positioned to resist requests by foreign governments to apply the same standards to products abroad.  This can pose a particular threat to individuals abroad that live in countries that actively persecute and criminalize LBGTQ people. Encryption also safeguards domestic violence victims, allows journalists to communicate with confidential sources, and protects our military and national security in conflict zones.

The EARN IT Act, with its broad mandate and the authority it grants to an anti-encryption Attorney General, endangers the protection encryption offers.

That’s not the EARN It Act’s only problem. In addition to undermining encryption, the bill poses serious dangers to online free speech by requiring platforms to engage in broad content moderation practices or lose the protections from liability afforded to them by CDA 230. Congress has abrogated CDA 230’s liability shield only one other time. SESTA/FOSTA, introduced in 2018,eliminated 230’s protections for sex trafficking advertisements. That experience taught us two things. First, to avoid liability, online speech platforms will engage in broad content moderation and censorship. Entire web sites that provided forums for sex workers to connect, share critical health and safety information, and build community disappeared after SESTA/FOSTA. Google and other remote storage sites began to scan for sex-related content and remove it from their systems. Second, the censorship of sex-related speech will disproportionately harm the LGBTQ community.

Under the EARN IT Act, much like SESTA/FOSTA, best practices will not only apply to illegal child sexual exploitation. By requiring platforms to broadly monitor and censor speech to which children might be exposed online, the EARN IT Act’s commission may recommend best practices that disproportionately censor, among other things: sex education materials, online support systems and communities for youth who are transgender or non-binary, and all other youth who are in any way questioning their gender or sexual identity to communicate with each other and with community members, any sex-related speech, particularly the speech of sex workers and of those in the sex industry, and any communication or speech involving youth. Paradoxically, the best practices could harm children’s ability to engage fully and experience the tremendous benefits to education and enrichment the internet offers.

The bill’s sponsors want us and their fellow lawmakers to ignore all of that, though. They’re saying that their bill will hold powerful companies accountable for their failure to protect children from dangers on their services. The idea that big online platforms will risk liability rather than silencing our speech and undermining our privacy simply to avoid that liability risk is laughable, and we already know from experience with SESTA/FOSTA that they won’t. They will sacrifice our privacy and our ability to communicate freely to ensure their bottom line.

Child sexual exploitation online and anywhere else is a serious problem that deserves serious solutions. Congress should spend its time devising methods to properly safeguard children from child sexual exploitation, not undermining the privacy and speech rights of the LGBTQ community, protesters, and all of us.

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