The EARN IT Act is Anti-Evidence Policy

Below is my latest for Exponents.

One thing that differentiates neoliberals from the right or left is a preference for evidence-based policy. What do you call a bill which all the evidence indicates is completely unnecessary for its stated purpose, will fail to achieve its stated purpose, and will create a lot of pain and suffering in the meantime? You call it the EARN IT Act.

Sens. Lindsey Graham (R-SC) and Richard Blumenthal (D-CT) introduced the EARN IT Act in March supposedly to help fight online child sexual abuse material (CSAM). The EARN IT Act does this by making platforms liable for their users’ activity if that activity involves sex and minors. But this is totally unnecessary. Platforms are already liable for child sexual exploitation under federal law. Plus, tech companies sent more than 45 million instances of CSAM to the DOJ in 2019 alone, most of which they declined to investigate. The Earn It Act includes zero resources for proven investigation or prevention programs.

What it does do is threaten online speech and privacy. It does so by carving out another exception to Section 230 of the Communications Decency Act (CDA 230), which the ACLU describes as “foundational to modern online communications.”

The Earn IT Act also creates an unelected commission, led by Attorney General William Barr, to create “best practices” to combat online child sexual exploitation. While these recommendations are nominally voluntary, platforms that refuse to comply will be liable for criminal prosecutions and lawsuits should the government decide any of their users is engaging in online child sexual exploitation.

On Tuesday, the Center for Democracy & Technology (CDT) along with a coalition of 26 civil society organizations urged the United States Senate to reject the EARN IT Act. Groups on the left and right, including the ACLU, Fight for the Future, EFF, and Hacking // Hustling oppose because it threatens free expression online and will threaten marginalized people’s safety while being totally unnecessary and failing to ameliorate the problem it claims to address.

The EARN IT Act Threatens Encryption

While there’s almost no evidence the EARN IT Act will do anything to protect kids online, there’s ample evidence it will threaten strong encryption. First there’s the fact that Barr has already attempted to ban end-to-end encryption. Then there’s the fact that the EARN IT Act empowers states to give law enforcement access to users’ private conversations and force companies to create encryption backdoors for law enforcement.

Not only is this totally unnecessary since platforms are already handing over child sexual abuse material to the federal government, but it’s actually likely to make prosecuting child molesters more difficult since evidence collected this way likely violates the Fourth Amendment and would be inadmissible in court. “Accused CSAM offenders could get off scot-free,” Senator Ron Wyden wrote. “This is not a risk that I am willing to take. The EARN IT Act will not protect children. It will not stop the spread of child sexual abuse material, nor target the monsters who produce and share it, and it will not help the victims of these evil crimes. What it will do is threaten the free speech, privacy, and security of every single American.”

The EARN IT Act Threatens Free Speech

The EARN IT Act will also lead to online censorship. Platforms will be incentivized to scan their users’ communications and censor all sex-related content, including sex education, transgender or non-binary education and support systems, and sex worker communication according to the ACLU. The commission will not include LGBTQ, sex worker, or other marginalized community representation.

Learning from SESTA/FOSTA

We can more accurately predict what the EARN IT Act is likely to do because it’s modeled after

2018’s SESTA/FOSTA, which purported to stop sex trafficking but actually just chilled online speech and made sex work more dangerous. It also did absolutely nothing to stop sex trafficking.

Before SESTA/FOSTA, sex workers used websites like Craigslist and Backpage to avoid police violence, share lists of dangerous clients, positively identify clients, and negotiate rates and boundaries at a safe distance and without the need for pimps. In many cities where Craigslist Erotic Services debuted, all female homicide dropped by as much as 17% within a few years.

SESTA/FOSTA led to Online Censorship

The government can’t ban sex workers from sharing safety information or advertising directly without running afoul of the First Amendment. SESTA/FOSTA is a workaround, bullying online speech platforms into censoring their users to avoid liability.

SESTA/FOSTA makes online platforms like reddit and Craigslist criminally liable for their users’ “sex trafficking” activity. But since the US government conflates adult, voluntary sex work with trafficking, platforms started deleted vast swaths of sex-related content before the law had even been signed.

Fearing bankrupting lawsuits and possible criminal charges, Google and other cloud storage sites even started scanning users’ private files for sex-related content and deleting it without warning or permission.

SESTA/FOSTA Made Sex Work More Dangerous

Suddenly sex workers no longer had access to social networks, bad date lists, verification platforms, and advertising platforms. As sex workers were forced back into street work and using pimps, thirteen sex workers were reported missing, and two took their lives in the first month FOSTA was enacted.

Sex worker advocacy groups have reported a spike in the number of missing and dead sex workers across the country. With fewer advertising venues, 80.61% of sex workers reported having trouble advertising, 72.45% are more economically unstable, and 33.8% have experienced more client violence since FOSTA. Literally 99% of sex workers who used the internet for sex work said FOSTA does not make them feel safer.

“The devastation after SESTA/FOSTA passed was swift and widespread,” said Kate D’Adamo, a sex worker advocate with Hacking // Hustling. “Two years later, many sex workers are still trying to economically recover. We saw increases in client violence, predatory behavior, and no one can say that anti-trafficking efforts improved. Passing EARN IT without even fully understanding the failures of SESTA/FOSTA is negligent at best and knowingly exacerbating violence at worst.”

No one has ever been charged under SESTA/FOSTA. The government claims the laws have decreased sex trafficking ads by 90%. But a Washington Post analysis found that just four months after FOSTA-SESTA’s passage, that number had rebounded to 75% of the original figure. Decreasing ads for prostitution actually makes finding sex trafficking victims more difficult, since ads were one of the primary ways law enforcement found traffickers.

The only thing we’ve gotten from FOSTA is dead sex workers and bullshit lawsuits. A challenge to FOSTA’s constitutionality on First Amendment grounds is winding its way through the courts. Senators Elizabeth Warren and Bernie Sanders have introduced bipartisan bills to investigate the negative impacts, a first step toward possible repeal.

EARN IT: Child of FOSTA

“The internet has made sex work safer,” said Maxine Holloway, a Bay Area sex worker and advocate. “The Earn It Act threatens sex workers and survivors by taking away our online platforms. We use the internet to get support and protect ourselves. This bill does nothing to prevent trafficking, while taking away our biggest safety tool.”

The Bottom Line

We know what keeps kids safe online. We have evidence-based programs that desperately need funding and support. The EARN IT Act doesn’t include a single dollar of funding for these programs. In May, Senator Ron Wyden introduced the Invest in Child Safety Act which provides more than $5 billion in mandatory funding, assigns more prosecutors and agents to find and charge child predators, and tasks a single person with responsibility for these efforts.

The EARN IT Act is not a well-intentioned bill with the unfortunate unintended consequence of censoring speech online and banning end-to-end encryption. It’s a cynical ploy that uses the spectre of online child abuse to erode Section 230 protections, bully platforms into censoring sex-related speech, and ban end-to-end encryption at the state level.