In this episode of Cubs Out Loud, remember SESTA-FOSTA from 2018? Well, learn more about their newest family member EARN IT in this informative talkback. Listen in as the cubs share their opinions on the next “problem solving” legislation to combat the exploitation of those special victims. Is it really helpful or is it more harmful?
Show Topic
Remember FOSTA-SESTA? Meet their newborn cousin, EARN IT Act 2022
THE 2020 PREVIOUS VERSION:
- EARN IT Act of 2020 – Senate Version – Congress.gov – EARN IT Act of 2020_S.3398.pdf
- EARN IT Act of 2020 – House Version – Congress.gov – EARN IT Act of 2020_H.R.8454.pdf
- ACLU opposes new amendments – July 2020 – Endgadget Article
- ACLU July 1 2020 letter to US Senators
The Amended EARN IT Act Is a Tool for Censorship.
The Supreme Court has long recognized that the Constitution forbids laws having the collateral effect of disproportionately censoring legal speech.3 By allowing states to lower the standards for liability even further than SESTA/FOSTA, the amended EARN IT Act would create just such an impermissible collateral effect and presents even graver risks to online expression than SESTA/FOSTA, especially for the LGBTQ and sex worker communities.
As we said in our previous letter, the aftermath of the passage of SESTA/FOSTA,4 which eliminated Section 230’s liability shield for content related to sex trafficking, makes the overbroad implications for online speech clear.5 Even if the speech covered by the law could be restricted without raising constitutional concern, the content moderation practices the companies will deploy to avoid liability risk will sweep far more broadly than the illegal content.6 SESTA/FOSTA was intended to protect people engaged in sex work from being trafficked against their will. It has, instead, sent them back out into the streets and made them less safe.7 Moreover, the platforms’ content moderation practices have disproportionately silenced the LGBTQ community, making it more difficult for them to come together and create community online.8 Under the amended EARN IT Act, Section 230’s shield for all state criminal and civil aws “regarding the advertising, promotion, presentation, distribution, or solicitation” of CSAM, as that term is defined by federal law, would be eliminated, permitting states to assign liability for negligence or recklessness. In other words, states would be able to go even further than SESTA/FOSTA in lowering the standards for liability for platforms.
THE 2022 CURRENT VERSION:
- EARN IT Act of 2022 – Senate version – Congress.gov – EARN IT Act of 2022_S.3538.pdf
- EARN IT Act of 2022 – House version – Congress.gov – EARN IT Act of 2022_H.R.6544.pdf
Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2022 or the EARN IT Act of 2022
This bill revises the federal framework governing the prevention of online sexual exploitation of children.
The bill establishes the National Commission on Online Child Sexual Exploitation Prevention. The commission must develop best practices for interactive computer services providers (e.g., Facebook and Twitter) to prevent, reduce, and respond to the online sexual exploitation of children.
Additionally, the bill limits the liability protections of interactive computer service providers with respect to claims alleging violations of child sexual exploitation laws.
The bill replaces various statutory references to child pornography and material that contains child pornography with child sexual abuse material.
Finally, the bill makes changes to the reporting requirements for electronic communication service providers and remote computing service providers (providers) who report apparent instances of crimes involving the sexual exploitation of children to the National Center for Missing and Exploited Children. Among the changes, the bill requires providers to report facts and circumstances sufficient to identify and locate each minor and each involved individual. The bill also increases the amount of time that providers must preserve the contents of a report.
- EARN IT Act is back and not much has change – Engadget Article – February 3, 2022
- ACLU, AFP Comment on EARN IT Act Reintroduction – February 3, 2022
- ACLU JOINT COALITION LETTER OPPOSING EARN IT ACT 2022 – February 9, 2022
The EARN IT Act Threatens Free Expression
Looking to the past as prelude to the future, the only time that Congress has limited Section 230 protections was in the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (SESTA/FOSTA). That law purported to protect victims of sex trafficking by eliminating providers’ section 230 liability shield for “facilitating” sex trafficking by users. According to a 2021 study by the US Government Accountability Office, however, the law has been rarely used to combat sex trafficking. 9 Instead, it has forced sex workers, whether voluntarily engaging in sex work or forced into sex trafficking against their will, offline and into harm’s way.10 It has also chilled their online expression generally, including the sharing of health and safety information, and speech wholly unrelated to sex work.11 Moreover, these burdens fell 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 of SESTA/FOSTA.12 Congress risks repeating this mistake by rushing to pass this misguided legislation, which also limits Section 230 protections.
9 Government Accountability Office. (2021). Sex Trafficking: Online Platforms and Federal prosecutions. (GAO Publication No. 21-385), (reporting that the Department of Justice had brought just one case under FOSTA, which at the time of the Report remained in court with no restitution sought, and that only one individual had pursued civil damages, in a case that was dismissed).
10 See Online Platforms and Sex Worker Discrimination, Hacking//Hustling (last visited Feb. 3, 2022), (continuously updated document listing companies, institutions, and products “that in some way discriminate or ban sex work or adult products OR have been shut down completely following increased anti-sex work legislation”); LaLa B Holston-Zannell, PayPal and Venmo are Shutting Out Sex Workers, Putting Lives and Livelihoods at Risk, ACLU (06/23/2021),
11 See, e.g., Amanda Waltz, Sex workers in Pittsburgh discuss local impact of damaging anti-trafficking law FOSTA-SESTA, Pittsburgh City Paper (08/07/2021), (quoting a researcher at the University of Pittsburgh describing how SESTA/FOSTA has led platforms to suppress the political speech of sex workers, including online organizing efforts); Jessica Stoya, What We Can Really Learn From the OnlyFans Debacle, Slate (08/25/2021), (describing how SESTA/FOSTA led platforms to “decimate” online sex worker spaces—“from bad-date lists that providers use to warn one another about dangerous clients to Instagram hashtags where we’d organized to fight the very law causing these problems”).
12 See Danielle Blunt and Ariel Wolf, Erased The Impact of FOSTA-SESTA, Hacking//Hustling (2020),; Makena Kelly, Democrats want data on how sex workers were hurt by online crackdown, The Verge (12/17/2019)
The EARN IT Act Jeopardizes the Security of Our Communications
The EARN IT Act Risks Undermining Child Abuse Prosecutions
The EARN IT Act would have devastating consequences for everyone’s ability to share and access information online, and to do so in a secure manner. We urge you to oppose this bill. Congress should instead consider more tailored approaches to deal with the real harms of CSAM online.
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