EARN IT Act Reintroduced in Senate

In a tweet thread, Senator Richard Blumenthal (D-CT) signaled the reintroduction of the Eliminating Abusive and Rampant Neglect of Interactive Technologies Act (EARN IT Act), which he first put forward with Senators Lindsey Graham (R-SC), Josh Hawley (R-MO) and Dianne Feinstein (D-CA) in 2020.

"The #EarnItAct is very simply about whether tech companies should be held responsible for their complicity in the sexual abuse & exploitation of children when they refuse to report or remove images of these crimes hosted on their platforms," tweeted Blumenthal.

But while the draft of the EARN IT Act may be new, the battle lines over it have not budged since it was first introduced two years ago. Digital, civil and human rights groups appear to be gearing up to again oppose the victims advocacy and law enforcement interest groups that support the legislation.

Broadly, the purpose of the bill is to:

• Establish a "National Commission on Online Child Sexual Exploitation Prevention" that would be made up of a variety of federal officials, including representatives from the Department of Justice and Department of Homeland Security. The Commission would be tasked with coming up with "best practices" for tech firms to "prevent, reduce, and respond to the online sexual exploitation of children, including the enticement, grooming, sex trafficking and sexual abuse of children and the proliferation of online child sexual abuse material."
• Amend Section 230 of the Communications Decency Act to limit the liability protection it affords platforms for claims related to CSAM, and make platforms that offer encrypted communications potentially liable for CSAM content. This section would open the platforms to potential new legal action in state and federal courts, and potentially provide law enforcement with a back door to encrypted communications.

This time around, Senators Blumenthal, Graham, Hawley and Feinstein are joined by cosponsors Chuck Grassley (R-IA), Dick Durbin (D-IL), Josh Hawley (R-MO), Dianne Feinstein (D-CA), Joni Ernst (R-IA), Bob Casey (D-PA), Sheldon Whitehouse (D-RI), John Kennedy (R-LA), Mazie Hirono (D-HI), Lisa Murkowski (R-AK), John Cornyn (R-TX), Catherine Cortez Masto (D-NV), Marsha Blackburn (R-TN), Susan Collins (R-ME), Maggie Hassan (D-NH), Cindy Hyde-Smith (R-MS), and Mark Warner (D-VA). Representatives Ann Wagner (R-MO2) and Sylvia Garcia (D-TX29) put forward companion legislation in the House of Representatives.

The new version of the bill does not give the "best practices" identified by the Commission the force of law.

A press release from Sen. Portman's office notes that the EARN IT Act has the support of "more than 240 groups, survivors and stakeholders, including the National Center for Missing & Exploited Children (NCMEC), Rights4Girls, the National Center on Sexual Exploitation, National District Attorneys Association, National Association of Police Organizations, Rape, Abuse & Incest National Network, International Justice Mission, and Major Cities Chiefs Association."

John Clark, the President of the NCMEC, said in a statement that his organization believes "legislative initiatives are needed now more than ever to address the increasing distribution of child sexual abuse material online and the harm this distribution inflicts on child victims and their families."

But digital, civil and human rights advocates were quick to raise alarms about the bill, which they regard dangerous to human rights and security.

The advocacy group Fight for the Future-- which previously launched a website, NoEarnItAct.org, to drive opposition to the legislation-- issued a statement saying "bill will make children less safe, not more safe. And in the process, it will trample human rights and online free expression, particularly for trans and queer folks."

The EARN IT Act is truly one of the worst pieces of Internet legislation I have seen in my entire career, and ... that's saying a lot.

Please, we need REAL solutions to the harms of Big Tech, not poorly written laws that will get people killed and do more harm than good /endrant

— Evan Greer (@evan_greer) February 1, 2022

The Center for Democracy & Technology's President, Alexandra Reeve Givens, said in a statement that "The EARN IT Act paints a target on the backs of providers who offer end-to-end encrypted services."

In 2020, a broad coalition of "civil rights, civil liberties, LGBTQ, sex education, reproductive rights, and sex worker advocacy organizations" joined together to oppose the EARN IT Act. The ACLU called it "a tool for censorship," and noted that it "may also be unconstitutional."

The new draft will head to markup in the Senate Judiciary Committee on Thursday.