EARN IT Act Reintroduced (Again)

This time around, the bill was introduced in the House of Representatives with Reps. Ann Wagner (R-MO) and Sylvia Garcia (D-TX) as the chief sponsors for the controversial proposal, which saw very little support the first two times the measure was introduced by the bill’s historical sponsors, Sens. Lindsey Graham (R-SC) and Richard Blumenthal (D-CT). Intended to target child sexual abuse material and other forms of exploitation on the internet, the majority of the civil society organizations in opposition to the EARN IT Act claim that such a bill, if signed into law, would do more harm than good.

“EARN IT is a wolf in sheep’s clothing that would actually make kids far LESS safe online, not more safe,” said Evan Greer, the director of the digital rights group Fight for the Future. “If passed, the EARN IT Act would risk the safety and rights of millions of people around the globe by attacking online encryption.” Greer added in the same press release that “encryption isn’t optional,” especially as “it’s a necessary technology relied on by government agencies, journalists, activists,and people living under anti-human rights laws.”

Not much has changed in the bill’s language since its initial introduction in 2020. The bill would present a Pandora’s box that would strip away online privacy protections and force forms of otherwise legal speech to be chilled, possibly even censored, across the web. Encryption is also at risk, as Greer pointed out. Joe Mullin, a policy analyst for the Electronic Frontier Foundation, recently wrote that the latest form of the EARN IT Act heeded criticisms to protect encryption. The sponsors for the bill included language claiming to support encryption of data, but he goes on to say that “it’s a shell game.” Mullin explains that “the bill clearly leaves room to impose forms of “client-side scanning.” This is a “method of violating user privacy by sending data to law enforcement straight from user devices before a message is encrypted,” Mullin stated. Organizations like EFF maintains client-side scanning is a privacy violation.

Critics also say the EARN IT Act would gut Section 230 of the Communications Decency Act. The bill would create a national commission of law enforcement experts who would be charged with designing and implementing an anti-CSAM best practices framework. The web platforms that refuse or fail to meet the best practices risk losing blanket immunity under Section 230’s blanket immunity for platforms.

“[The EARN IT Act] creates a carveout in Section 230 that would push tech companies to over-censor their platforms in order to reduce their legal liability,” Greer said. Greer alluded to several instances of academic research correlating negative Section 230 reforms, like a gutting of rights, to limitations of First Amendment rights on the internet. “Studies have shown that when Section 230 protections evaporate, platforms over-target marginalized communities and place people in life-threatening danger by tearing down harm reduction infrastructure.”

The EARN IT Act has also been compared to the highly controversial FOSTA-SESTA legislative package that former President Donald Trump signed into law during his tenure. FOSTA-SESTA has chilled constitutionally-protected forms of speech on the internet, including speech dealing with consensual online sex work and adult entertainment. In Greer’s press statement, the EARN IT Act was placed in comparison to FOSTA-SESTA, pointing out that these studies covering the gutting of Section 230 protections include the impacts of Trump’s anti-trafficking folly. In a study published by Columbia Human Rights Law Review, researchers pointed out that “though the exact legal applicability of FOSTA is speculative, it has already had a wide-reaching practical impact; it is clear that even the threat of an expansive reading of these amendments has had a chilling effect on free speech, has created dangerous working conditions for sex workers, and has made it more difficult for police to find trafficked individuals.” The U.S. Government Accountability Office also highlighted that FOSTA-SESTA is rarely used by prosecutors and is considered quite ineffective when it comes to countering legitimate cases of human trafficking.

Sen. Ron Wyden (D-OR) has highlighted the risks of gutting Section 230, including the experience with FOSTA-SESTA. Wyden explained last February why he opposed the EARN IT Act. One of the co-authors of Section 230, Wyden said that the EARN IT Act is a “sadly misguided bill will not protect children.”

“Instead, the EARN IT Act threatens the privacy and security of law-abiding Americans by targeting any form of private, secure devices and communication,” Wyden said. “As a result, the bill will make it easier for predators to track and spy on children and also harm the free speech and free expression of vulnerable groups.” Wyden further explained that the bills “were condemned by a broad array of civil liberties, human rights, and internet freedom groups as an assault on fee express and private communications.” These groups include the American Civil Liberties Union, Center for Democracy and Technology, Human Rights Watch, LGBTQ Tech, and several other groups.

Americans for Prosperity, a conservative-leaning civil society group, has also expressed opposition to the EARN IT Act. A petition website has been established, supported by Signal, Tech Freedom, Demand Progress, Tech Workers Coalition, Restore the Fourth, and Tumblr. Woodhull Freedom Foundation is also opposed to the EARN IT Act, further adding to their efforts to litigate against FOSTA-SESTA.