The EARN IT Act Is Back – And Still Terrible

Most of the senators, especially Republicans who backed the Trump-era SESTA-FOSTA Section 230 reforms, claim the proposal targets violations of laws as they relate to the unlawful distribution of exploitative sexual content and child sexual abuse material (CSAM).

The original version of EARN IT was introduced in 2020 but was withdrawn by the sponsors due to overwhelming opposition across party lines.

The Electronic Frontier Foundation (EFF) recently commented that “the new EARN IT Act would pave the way for a massive new surveillance system, run by private companies, that would roll back some of the most important privacy and security features in technology used by people around the globe.” Joe Mullin, a policy analyst for EFF and digital privacy advocate, added in a blog post for the group that the bill “targets every individual internet user, treating us all as potential criminals who deserve to have every single message, photograph, and document scanned and checked against a government database. Since direct government surveillance would be blatantly unconstitutional and provoke public outrage, EARN IT uses tech companies—from the largest ones to the very smallest ones—as its tools.”

However, Blumenthal and company maintain that the EARN IT Act is a fix to counter big tech’s lack of accountability and to protect children — or at least a purported lack of accountability that Democrats and Republican lawmakers claim is so rampant across the whole internet.

“The modern internet is infested with stomach-churning images of children who have been brutally assaulted and exploited, and who are haunted by a lifetime of pain after these photographs and videos are circulated online,” Blumenthal said in a recent press release. “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,” the senator adds. “That ends with the EARN IT Act.”

Several Republicans have signed on to the bill, including Graham, anti-porn and far-right religious members like Sen. Josh Hawley, R-Mo., and controversial Republicans like Sens. Lisa Murkowski (Alaska), John Kennedy (Lousiana), Susan Collins (Maine), and Chuck Grassley (Iowa).

The design of the EARN IT Act is opposed by several right-wing and left-wing civil liberties groups. The left-leaning American Civil Liberties Union (ACLU) and the right-leaning, Koch-brothers-backed Americans for Prosperity (AFP) released a joint letter of opposition to the 2020 version of the EARN IT Act and have stated their opposition to the reintroduced version, as well.

Both groups argued that the act is a means to provide all-powerful private tech companies with the power to spy on internet users. The mission of the EARN IT Act is to provide a legal justification for government-encouraged backdoor monitoring of people’s personal data and private clouds to detect instances of CSAM and the distribution of non-consensual content of an intimate nature (i.e., revenge porn).

“The EARN IT Act would be a disaster for online speech and privacy rights,” said Kate Oh, Senior Policy Counsel at the ACLU.  “This legislation poses a serious threat to the safety of millions of people — especially marginalized communities and whistleblowers, among others — who rely on strong encryption to freely express themselves and exchange ideas with each other. This includes the ability to freely express criticisms of governmental actions. Congress must again reject this dangerous bill.”

“The EARN IT Act significantly undermines encryption technology by exposing internet platforms to more liability simply for utilizing such technology,” added James Czerniawski, Senior Policy Analyst for Tech and Innovation at AFP. “Encryption technologies have played a vital role in securing our conversations, our finances, and our internet-connected devices. Congress should respect the reasonable expectation of privacy that encryption provides to millions of Americans and soundly reject this bill.”

While the goals of the bill might be laudable, the potential for malfeasance and a misguided, inequitable application of the law could negatively impact people who aren’t engaged in criminal activity. It places power in a unelected commission staffed by private individuals and regulators to ultimately determine what is acceptable internet behavior for individuals, per their own distorted view of Section 230.

Section 230 is often referred to as the “First Amendment of the internet” and commonly credited as one of the leading factors for the rapid development pace of the tech industry, including online adult businesses. Members of the adult entertainment industry and sex workers are concerned over the EARN IT Act because the law could offer prosecutors and private companies to further discriminate against legitimate adult businesses, content creators, escorts, and others in the vertical.

Mike Stabile, the director of public affairs for the adult entertainment industry’s Free Speech Coalition (FSC), noted that the 2022 version of the EARN IT Act is extremely problematic for adult-based businesses and sex work in virtually every form. Stabile called the new version of the EARN IT Act “SESTA-FOSTA 2.0,” referring to the Stop Enabling Sex Traffickers Act” and “Allow States and Victims to Fight Online Sex Trafficking Act” signed into law by former President Donald Trump in 2018.