The EARN IT Act Is the New FOSTA

The new bill takes aim at internet freedom and privacy under the pretense of saving kids.

A new bill with high-powered bipartisan backing takes aim at free speech and privacy online under the pretense of saving sexually abused children. Sound familiar?

Like the 2018 "sex trafficking" law FOSTA, the new Eliminating Abusive and Rampant Neglect of Interactive Technologies (EARN IT) Act could strip crucial legal protections from a huge array of apps, blogs, social media, messaging services, crowdsourced content platforms, and much more, upending the internet as we know it in the process.

Theoretically, EARN IT would simply set up a federal commission to determine best practices for preventing the online spread of "child sex abuse material." (That's Congress' catch-all term used for sexual imagery featuring minors, from the truly sick and reprehensible to semi-clothed selfies 17-year-olds take of their own volition.) Effectively, it would give the Trump administration carte blanche over the rules of engagement on the internet.

"Best practices" as determined by the commission could mean all encrypted communication services being built with a "backdoor" for government access. It could mean making users of social media, online marketplaces, and apps from Yelp to Grindr submit proof of real identities before they can join or post. It could mean turning over more user data to authorities or disallowing any accounts that post sexual material at all.

We just don't know. And neither do legislators—the bill would give a commission selected by the attorney general the regulatory equivalent of a blank check.

anti-Section 230 Politics Drives both EARN IT and FOSTA

Failure to follow the commission's practices—to "earn it"—could mean internet companies lose the protections of a federal communications statute known as Section 230.

Passed in 1996, Section 230 says providers and users of interactive computer services aren't automatically liable for each other's content or conduct. At the time, web entrepreneurs worried that any system for reporting, flagging, and making corporate judgment calls on user-posted content would open them up to legal liability for things like defamation and obscenity (an interpretation based on how First Amendment law is applied to physical bookstores, newsstands, etc.). Section 230 was passed, in part, to explicitly permit then-dominant tech companies like AOL and MSN to monitor and moderate users' posts without risking endless time in court.

It's now the legal framework undergirding the internet as we know it, protecting both open speech and community-specific censorship on platforms no one dreamed of back in '96.

But Section 230 has long been hated by state attorneys general and civil suit lawyers, because it means they can only hold the people who actually say or do illegal things criminally (and financially) accountable for those things; they can't win against web companies that merely host actionable content before being made aware of its existence, that it was criminal, or that it would contribute to a criminal act.

Lately, industries that failed to adapt well to tech-forward competitors (such as newspapers) or industries that simply resent new competitors for cutting into profits (like hotel chains losing money to Airbnb or besot-from-all-sides Match.com) have also joined the fight against Section 230. Their opposition lends credence to claims that the law's destruction would also doom social media, amateur journalism, "peer-to-peer" business models, and more.

Meanwhile, activists and politicians have cited every major social ill and safety issue as a reason to amend or abolish Section 230.

With FOSTA, lawmakers succeeded in carving out an exception by conjuring the specter of an epidemic of U.S. "child sex trafficking." Not only were their numbers nonsense, but the law goes far beyond sex trafficking, making it a federal crime to host any content that could facilitate any prostitution.

The result has been the suppression of all sorts of speech and content related to sex work, as well as major sites like Craigslist shutting down all personals ads. And with this (and the government's unrelated seizure of Backpage), a huge amount of hardship for sex workers of all sorts, particularly those most vulnerable to violence and abuse already.

FOSTA has yet to be used by any government entity in the nearly two years since it was signed into law, though it is being invoked in private civil lawsuits against Craigslist and email marketing company Mailchimp. Held up by supporters as an absolutely urgent and crucial tool for stopping horrible abuse, the only attempts to use FOSTA's power in court so far seek payouts from companies far removed from that abuse.

But perhaps the point of FOSTA—a law that may be hard-pressed to pass constitutional muster in court—was never meant to be used directly. The chilling effect on internet speech, and on economic liberty, has already worked without a single charge being filed.

Now, lawmakers are looking to recreate this magic with the EARN IT Act.

EARN IT isn't about saving kids

Anything related to child pornography—producing it, receiving it, accessing it, viewing it, possessing it, distributing it, selling it, and so on—is a federal crime, and these statutes are vigorously enforced. (Unless you're with the FBI, that is.) For tech companies, it's also a federal crime to fail to report such images if discovered on their servers.

And nothing in Section 230 stops the Justice Department from using federal criminal laws against tech companies.

This means that nothing prevents authorities from holding child porn perps liable in criminal court. "Put simply, Section 230 does not keep federal prosecutors from holding providers accountable for [child sex abuse material] on their services," writes Riana Pfefferkorn, associate director of surveillance and cybersecurity at Stanford Law School's Center for Internet and Society, in a detailed post about the EARN IT Act.

This should cast suspicion on claims that we need EARN IT to protect children or to punish those who exploit them. The real power of the EARN IT Act is conditioning legal liability protection on to-be-determined rules that can be changed based on the whims of an unelected team of bureaucrats, corporate cronies, and well-connected activists.

The commission's rules would not be legally binding, but failure to follow them would mean losing Section 230 protection for civil lawsuits and state charges related to sexual content involving the underage. In that case, tech companies can expect an onslaught of civil suits from lawyers willing to further exploit child sex abuse victims and charges from state attorneys general looking to make names for themselves. (Remember, all it takes is for high schoolers to have used a platform's private messaging tools to exchange explicit photos with one another and a site is liable.) Some would go out of business, while independent startups may never be able to get off the ground in the first place.

The great paradox is that whichever way companies could react to mitigate this risk is bad news for users and bad for stopping the spread of exploitative and illegal material. Their options are to clamp down on users and content across the board, hoping to somehow filter out anything bad, or to relax reporting and moderation policies—opening up platforms for even wider distribution of criminal and abusive content—in order to try and avoid liability that turns on staff having received notice of that content.

The 15-member commission would be chosen by the U.S. attorney general, who also has the option of entirely rewriting the commission's rules.

That means Bill Barr "could single-handedly rewrite the 'best practices' to state that any provider that offers end-to-end encryption is categorically excluded from taking advantage of this safe-harbor option," points out Pfefferkorn. "Or he could simply refuse to certify a set of best practices that aren't sufficiently condemnatory of encryption. If the AG doesn't finalize a set of best practices, then this entire safe harbor option just vanishes."

The bill does say that companies can "earn" Section 230 protection by taking "reasonable measures" other than the feds' best practices. But it's language that makes compliance more inscrutable overall, leaving it up to federal judges to decide on a case-by-case basis what measures are reasonable.

Will lawmakers and MEDIA learn?

If tech companies comply with the best practices Barr's commission could dream up, we might all lose more online privacy and safety. In the case of encryption, for instance, a backdoor accessible to U.S. authorities in all our communications would also be accessible by foreign and domestic hackers and scammers. Meanwhile, child porn distributors and other criminals could simply switch to encrypted communication services located outside the U.S.

No matter what rules are ultimately drafted, the EARN IT Act would give Washington enormous leverage over tech companies and platforms of all sorts.

Sex workers—criminalized or not—would stand to lose even more access to advertising spaces, social media, payment processors, and other digital realms. If FOSTA is any guide, LGBTQ organizers and others fighting for sexual dignity, privacy, and rights will face increased scrutiny online, too.

In the lead-up to FOSTA's passage, few media outlets reported on its downsides; now, the internet is awash with articles about how FOSTA harms vulnerable classes of people, makes sex work more dangerous, and spurs senseless suppression of speech online. All but two senators and a handful of U.S. representatives voted for FOSTA; now, a bill aimed at repealing FOSTA is being backed by the likes of Sens. Elizabeth Warren (D–Mass.) and Bernie Sanders (I–Vt.).

Perhaps with the EARN IT Act, more media and legislators could skip the period of credulously buying the for-the-children rhetoric and start seeing this legislation for the dangerous, cynical, civil liberties-grabbing ploy that it is.