As U.S. lawmakers renew efforts to pass a bipartisan bill intended to combat sexual exploitation of children online, 11 dozen advocacy groups argued Tuesday that the federal legislation would actually not only fall short in its mission but also endanger digital privacy and free expression.
U.S. Sens. Lindsey Graham (R-S.C.), Marsha Blackburn (R-Tenn.), and Richard Blumenthal (D-Conn.) along with Reps. Ann Wagner (R-Mo.) and Sylvia Garcia (D-Texas) last week reintroduced the Eliminating Abusive and Rampant Neglect of Interactive Technologies (EARN IT) Act.
The EARN IT Act (S. 1207/H.R. 2732) takes aim at Section 230 of the Communications Decency Act, which states that "no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."
The controversial bill would remove that blanket liability protection for civil or criminal law violations related to online child sexual abuse material (CSAM) and establish a national commission—filled with members of federal agencies, law enforcement, and survivor groups as well as legal and technical experts—to craft voluntary "best practices" for providers.
"EARN IT will jeopardize access to encrypted services, undermining a critical foundation of security, confidentiality, and safety on the internet."
In their Tuesday letter to the Senate Judiciary Committee, 133 groups led by the Center for Democracy & Technology wrote: "We support curbing the scourge of child exploitation online. However, EARN IT will instead make it harder for law enforcement to protect children. It will also result in online censorship that will disproportionately impact marginalized communities."
"In addition, EARN IT will jeopardize access to encrypted services, undermining a critical foundation of security, confidentiality, and safety on the internet," they continued. "Dozens of organizations and experts have repeatedly warned this committee of these risks when this bill has been previously considered, and those same risks remain. We urge you to oppose this bill."
The letter—also signed by Access Now, ACLU, Amnesty International USA, Demand Progress, Electronic Frontier Foundation (EFF), Fight for the Future, Free Press Action, GLAAD, Human Rights Campaign, PEN America, Public Knowledge, Transgender Law Center, Tor Project, Wikimedia Foundation, and more—lays out the groups' critiques in detail.
"Section 230's liability shield applies to smaller and start-up companies that are interactive computer service providers, not just a handful of large companies like Google and Meta," the letter stresses. "By opening providers up to significantly expanded liability, the bill would make it far riskier for platforms to host user-generated content," which could cause providers to stop hosting such content altogether or engage in "overbroad censorship" that removes constitutionally protected material.
"These wide-ranging removals of online speech will negatively impact diverse communities in particular, including LGBTQ people, whose posts are disproportionately labeled erroneously as sexually explicit," the rights organizations warned, pointing to lessons learned from the anti-trafficking law widely known as SESTA/FOSTA.
SESTA/FOSTA "has forced sex workers—whether voluntarily engaging in sex work or forced into sex trafficking against their will—offline and into harm's way," the groups noted, citing federal research. The law has also "chilled their online expression," and all of "these burdens have fallen most heavily on smaller platforms that either served as allies and created spaces for the LGBTQ and sex worker communities or simply could not withstand the legal risks and compliance costs."
In addition to putting online free expression at risk, the EARN IT Act would disincentivize end-to-end encryption, which "ensures the privacy and security of sensitive communications by making certain that only the sender and receiver can view them," the groups highlighted. "Billions of people worldwide rely on encryption to secure their daily activities online, from web browsing to online banking to communicating with friends and family."
"Everyone who communicates with others on the internet should be able to do so privately. However, this security is especially relied upon by journalists, Congress, the military, domestic violence survivors, union organizers, immigrants, and anyone who seeks to keep their communications secure from malicious hackers," the letter says, emphasizing that abortion patients also rely on the technology, especially since last year's U.S. Supreme Court decision and subsequent state laws restricting reproductive rights.
Though the EARN IT Act is backed by various groups that work to prevent the exploitation of children, the letter makes the case that the bill "risks undermining child abuse prosecutions by transforming providers into agents of the government for purposes of the Fourth Amendment," explaining:
If a state law has the effect of compelling providers to monitor or filter their users' content so it can be turned over to the government for criminal prosecution, the provider becomes an agent of the government, and any CSAM it finds could become the fruit of an unconstitutional warrantless search. In that case, the CSAM would properly be suppressed as evidence in a prosecution and the purveyor of it could go free. At least two state laws—those of Illinois and South Carolina—would have that effect.
Rather than passing Graham and Wagner's bill, the letter asserts, "Congress should instead consider more tailored approaches to deal with the real harms of CSAM online, and it should commit to conducting a full, independent internet impact assessment to identify potential harm likely to result from any internet-related legislation, such as harms to users' freedom of expression and privacy, before the legislation is voted upon."
The rights groups' alarm over the EARN IT Act comes amid debates over other thematically related proposals such as the Kids Online Safety Act (KOSA), which is supported by some advocates for children's rights, health, and privacy but opposed by some signatories to Tuesday's letter, including the ACLU, EFF, and Fight for the Future.
Advocacy groups critical of KOSA, the EARN IT Act, and the STOP CSAM Act—who say that "unfortunately, all three bills have many of the same problems"—plan to hold a press conference about the legislation on Wednesday afternoon with Sen. Ron Wyden (D-Ore.).
This post has been updated to reflect there are 133 coalition members including the Center for Democracy & Technology.