Pros and Cons of the EARN IT Act of 2023-2024

This piece was originally posted by the Alliance for Citizen Engagement. It was written by Max Mallett.

What is the EARN IT Act?

The Eliminating Abusive and Rampant Neglect of Interactive Technologies Act, or the EARN IT Act, seeks to combat the online exploitation of children. The bill replaces various statutory references to “child pornography” with “child sexual abuse material,” also known as CSAM. Activists and advocates argue that child sexual abuse material is a more fitting term than child pornography, as the inability of children to consent makes any explicit imagery containing them evidence of sexual abuse, which should be described as such.

Combatting CSAM is an issue of particular importance. Reports of CSAM are currently on the rise, with the National Center for Missing and Exploited Children’s CyberTipline experiencing a 329% increase in reports of child sexual abuse material over the last 5 years. While this problem is not unique to America, our government is uniquely well-positioned to combat it, as United States-based URLs now host more CSAM than any other individual country, or 30% of the world’s CSAM. While it is often assumed victims of sexual abuse are older children and teenagers, over 60% of CSAM involves prepubescent children, including toddlers and infants. Moreover, a large percentage of those arrested for possession of CSAM are dual offenders who concurrently sexually abused children. Unfortunately but unsurprisingly, victims of CSAM experience many long-term negative health impacts, from brain damage to physical health problems to increased mental disorders.

The bill seeks to combat CSAM in a myriad of ways. First, the EARN IT Act establishes a National Commission on Online Child Sexual Exploitation Prevention, composed of various stakeholders. The Attorney General would serve as chairperson, with the Secretary of Homeland Security and the Chairman of the FTC also serving on the commission. Otherwise the Senate majority leader, the Senate minority leader, the Speaker of the House, and the House minority leader all appoint one person in each of the four categories (for a total of another 16 commission members): firstly, someone with experience criminally investigating CSAM; secondly, a survivor of CSAM or a person with experience providing victim services to survivors; thirdly, someone with experience with consumer protection, privacy, data security, or cryptography; fourthly, one with experience working for interactive computer services companies and addressing child safety and exploitation. 

The EARN IT Act would also change the reporting requirements for instances of CSAM reported to the National Center for Missing and Exploited Children, increasing the amount of information that must be collected and extending the amount of time that providers must retain the contents of the report from 90 days to one year.

Finally, the EARN IT Act would hold the providers of interactive computer services liable for child sexual abuse materials distributed through their sites. Historically, Section 230(e) of the Communications Act of 1934––which provides limited federal immunity to providers and users of interactive computer services––has been interpreted by courts as protecting social media providers from being held legally liable for failure to take down user-generated content. The EARN IT Act, if passed, would remove these Section 230 protections and enable interactive computer service providers to be civilly and criminally liable “regarding the intentional, knowing, or reckless advertisement, promotion, presentation, distribution, or solicitation of child sexual abuse material.”

Arguments for the EARN IT Act

Proponents of the EARN IT Act argue it will help combat the distribution and availability of CSAM, and in doing so protect minors online. By removing the liability protections of Section 230, supporters of the EARN IT Act believe that technology companies will be forced to proactively seek out and remove CSAM on their sites, lest they face legal repercussions. Indeed, proponents of the bill observe that technology companies have unique resources at their disposal that even law enforcement agencies themselves do not have, and they should be required to make use of those resources to combat CSAM. By requiring online platforms to retain content reported for up to a year, supporters argue that law enforcement will have the time they need to more thoroughly investigate cases of CSAM. 

Furthermore, the commission would establish best practices in an effort to prevent, reduce, and respond to the online sexual exploitation of children. Proponents of the EARN IT Act argue that the establishment of the commission is an effective first step between governments, industry, advocates, and victims. However, the commission is not in the house version of the bill, and the best practices are merely recommendations not requirements. Nevertheless, supporters believe all conversation over how to best protect against CSAM is potentially positive, whether it results in required actions or merely suggestions.

Arguments against the EARN IT Act

Opponents of the EARN IT Act argue that the removal of liability protections will force online platforms to remove end-to-end encryption and actively police formerly private correspondences. In end-to-end encryption, data is encrypted on the device of the sender and decrypted on the device of the receiver; in transit the data can not be read by intermediate entities, even the service providers themselves. By holding service providers liable for the CSAM distributed on their website, many opponents of the bill believe that organizations will be forced to get rid of end-to-end encryption or suffer the legal consequences. For this reason organizations like the ACLU and the Electronic Freedom Foundation oppose the EARN IT Act and its undermining of current privacy protections.

While proponents of the EARN IT Act argue that removing end-to-end encryption is worth it if it helps catch nefarious actors, opponents argue that nefarious actors will always encrypt their messages, and as such the EARN IT Act will remove privacy protections for law-abiding citizens while having little effect on criminals. Moreover, some argue that the EARN IT Act could counterintuitively make prosecuting criminals more difficult, and that similar bills which removed limited liability protections were used in only a handful of prosecutions after their passing.

Conclusion

The EARN IT Act replaces statutory references to “child pornography” with “child sexual abuse materials” (CSAM), establishes a commision of various relevant stakeholders, extends the time period information relevant to CSAM reports must be retained from 90 days to one year, and specifies that Section 230 protections do not protect online service providers from legal recourse regarding the “intentional, knowing, or reckless advertisement, promotion, presentation, distribution, or solicitation of child sexual abuse material.” Proponents of the EARN IT Act argue it will help decrease CSAM and prosecute perpetrators of CSAM. Opponents argue the EARN IT Act will undermine end-to-end encryption and existing privacy protections for little benefit.