#15 EARN IT Act Threatens Online Freedom of Expression Under Guise of Policing Child Pornography

by Project Censored
Published: Updated:

Last introduced in 2020, the EARN IT Act (Eliminating Abusive and Rampant Neglect of Interactive Technologies Act) is back—and more threatening to online freedom of expression than before, according to recent independent news reports.

The EARN IT Act of 2022 aims to hold tech companies responsible for the online spread of child pornography. As Mathew Ingram reported for the Columbia Journalism Review (CJR), the Act would establish a national commission to develop “best practices for the elimination of child sex-abuse material (CSAM).” Under the act, “online platforms hosting such material would lose the protection of Section 230 of the Communications Decency Act, which gives electronic service providers immunity from prosecution for most of the content that is posted by their users,” the CJR reported.

The EARN IT Act could significantly impact freedom of expression on the internet far beyond its stated aim of policing child pornography. The CJR report quoted Riana Pfefferkorn, a research fellow at the Stanford Internet Observatory, who wrote that the act will result in companies “overzealously censoring lots of perfectly legal user speech just in case anything that could potentially be deemed CSAM might be lurking in there.” The human rights organization Article 19 warned that the EARN IT Act would encourage platforms to engage in “overbroad censorship of online speech,” targeting especially content created by “diverse communities, including LGBTQ individuals, whose posts are disproportionately labeled as sexually explicit.”

The proposed Act would actually “undermine the fight against child predation online,” Kir Nuthi reported for Slate in February 2022. Noting the “delicate constitutional balance that allows online platforms to voluntarily search for illicit and illegal material and report it to authorities without violating the Fourth Amendment,” Nuthi wrote that the EARN IT Act could “end up giving criminals a way to challenge their convictions for child sexual abuse material.” Nuthi added that, of course, it is “already a criminal offense to produce or distribute child sexual abuse content.”

Because encryption is a potential red flag for CSAM content, the CJR reported, the EARN IT Act will likely pressure platforms to stop offering end-to-end encryption. In 2020, Stanford’s Center for Internet and Society had characterized the then-current version of the EARN IT Act as a means to “ban end-to-end encryption without actually banning it.” The revised version of the legislation has “doubled-down” on anti-encryption, according to Stanford’s Riana Pfefferkorn. But strong encryption is vital to many online users, especially members of marginalized communities. According to a 2020 analysis by the ACLU’s Kate Ruane, “Strong encryption can be vital to many in the LGBTQ community who rely on the internet to access a support network, seek resources to combat discrimination and abuse, and find doctors and treatment to assist with transition, HIV prevention, and other health concerns.” Ruane noted that encryption also provides crucial safeguards for domestic violence victims, protest organizers, and journalists protecting confidential sources.

Since early 2022, the EARN IT Act has received limited coverage from major corporate newspapers such as the Washington Post and the Wall Street Journal. A February 2022 editorial in the Washington Post reported on the bill’s “dangerous tradeoffs,” noting that concerns raised by privacy and speech advocates—including threats to end-to-end encryption and legitimate free expression—“have some merit.” A February 2022 report in the Wall Street Journal noted opposition to the EARN IT Act by “a coalition comprising more than 60 privacy and human-rights groups” but emphasized a positive consensus between Republican and Democratic lawmakers, including Leslie Graham (R-SC) and Dianne Feinstein (D-CA).

Mathew Ingram, “A Resurrected Bill Troubles Digital Rights Advocates and Journalists,” Columbia Journalism Review, February 17, 2022.

Kir Nuthi, “The EARN IT Act Would Give Criminal Defendants a Get-out-of-Jail-Free Card,” Slate, February 11, 2022.

Student Researcher: Lily Callow (Saint Michael’s College)

Faculty Evaluator: Rob Williams (Saint Michael’s College)