EARN IT Still Ignores Privacy, Censorship Concerns

by Project Censored
Published: Last Updated on

By Shealeigh Voitl and avram anderson

Dangerous pieces of legislation have been introduced at the federal and state levels under the guise of protecting children online from exploitation and other online harms. Despite their claimed intent, these bills will make children, and everyone who uses the internet, less safe. The Eliminating Abusive and Rampant Neglect of Interactive Technologies (EARN IT) Act has been reintroduced in Congress for the third time despite the concerns of numerous cybersecurity and technology experts, LGBTQ+ and civil rights advocates, and other groups. Opponents of EARN IT argue that increased surveillance and censorship and the dismantling of end-to-end encryption make the online world more dangerous and limit the right to free speech and privacy for everyone.

The EARN IT Act would create an unelected commission of representatives from law enforcement, victims’ services, and technology companies, tasked with developing best practices of “preventing, identifying, disrupting, and reporting online child sexual exploitation.”  Unfortunately, the commission will not include anyone from civil liberties groups who have voiced concerns about the legislation’s impact.

As with previous iterations, the 2023 version of the EARN IT Act undermines Section 230 of the Communications Decency Act, a cornerstone of online freedom of expression. Removing Section 230’s broad protections means “interactive computer services” can be held liable for illegal user-generated content. The bill’s authors, Sen. Lindsey Graham (R-SC) and Sen. Richard Blumenthal (D-CT), supposedly intend to provide “recourse for survivors and tools for enforcement,” yet they have repeatedly ignored media scholars who maintain EARN IT will do the opposite.

For providers’ searches of users’ online accounts to be constitutional, they must be noncompulsory. Academics say if service providers act as “agent(s) of the government,” conducting “warrantless search(es),” then any child sexual abuse material (CSAM) collected as evidence by law enforcement could be rendered inadmissible in court. To be sure, producing or distributing CSAM is already a criminal offense. EARN IT could make it easier for offenders to challenge their convictions and potentially walk free.

In response to liability concerns, internet privacy and free speech advocates say that the EARN IT Act could force platforms to weaken or drop encryption and over-moderate legally protected content, as we saw with FOSTA/SESTA, the first major amendment to weaken Section 230. However, FOSTA/SESTA backfired in its stated aims of protecting victims of sex trafficking and instead “social media platforms like Tumblr removed all forms of graphic sexual content, which impacts the most stigmatized sexual minorities such as LGBT, transgender, and intersex communities.”

Once again, tech companies risk overcorrecting to avoid even the possibility of litigation, resulting in the censorship of constitutionally-protected user speech all over the web. On top of encryption concerns, this aggressive suppression of online speech is particularly harmful to queer and trans youth, who rely on digital spaces to explore their identities, build support systems, and access reliable healthcare information and sex education.

Another piece of problematic legislation, KOSA (Kids Online Safety Act), which has received massive bipartisan support, would impose on content platforms a broad “duty of care” to design their algorithmic recommendation systems in the best interest of children while also allowing states’ attorneys general to determine what content young people should be allowed to access. Giving this broad power to attorneys general in states where reproductive rights and gender-affirming care are criminalized could potentially lead to widespread censorship of content related to race, gender, sexuality, and other important but controversial topics. Regulating legal speech that is perceived as harmful also raises concerns about freedom of speech and increases the risk of abuse of power.

Additionally, legislators have capitalized on the moral panic surrounding the impact of social media to propose problematic legislation. Forty-three states have introduced over 140 pieces of legislation in 2023 to deal with children’s online rights and privacy. Privacy groups and mental health advocates have suggested that “the parental monitoring provision raises concerns for kids who could be at risk in abusive households, and have chilling effects on teen conversations with their friends,” in online discussions about sexuality, reproductive rights, or simply everyday conversations. These bills vary in their approach with some aiming to protect privacy while others risk eroding it and further fragmenting the regulatory landscape in the United States.

The establishment press has done little to examine the implications of the EARN IT Act, outside of a recent Washington Post analysis, and even less to explore legislative alternatives to EARN IT that are backed by tech experts. A team of congress members, led by Sen. Ron Wyden (D-OR), introduced the Invest in Child Safety Act in 2020, which they believe will keep children safe online without censoring legal user speech. The bill plans to “provide $5 billion in funds to combat online child sexual exploitation (CSE), create a new office in the White House to coordinate federal agency efforts, and double the amount of time providers must preserve evidence of CSE material.” The Invest in Child Safety Act came shortly after an explosive September 2019 New York Times report about staffing shortages and limited resources within law enforcement agencies and the National Center for Missing and Exploited Children (NCMEC).

EARN IT won’t protect children; instead, it will put them in even greater danger online. This ill-conceived bill compromises everyone’s user data security, especially that of vulnerable groups such as the LGBTQ community, journalists, people seeking abortions, immigrants, and others. Furthermore, EARN IT sets a dangerous precedent for freedom of expression online. However, in addition to legislation like Invest in Child Safety, requiring more rigorous data privacy standards for adolescents, supporting research on the mental health impacts of social media, and developing comprehensive media literacy curricula are just some of the many ways forward. On their surface, EARN IT and KOSA aim to make the internet a safer place, but users don’t have to be tech or policy experts to know that isn’t what will happen if they pass. The real-world consequences of these bills will forever impact everyone’s online access, privacy, and experience.

Shealeigh Voitl is associate editor at Project Censored. A regular contributor to the Project’s yearbook series, her writing has been featured in State of the Free Press 2023, Truthout, The Progressive, and Ms. Magazine.

avram anderson is the Collection Management Librarian at California State University, Northridge and a member and advocate of the LGBTQI+ community researching LGBTQ bias and censorship. avram is also co-author of The Media and Me: A Guide to Critical Media Literacy for Young People (2022) and “Censorship by Proxy and Moral Panics in the Digital Era,” in Censorship, Digital Media, and the Global Crackdown on Freedom of Expression (forthcoming). They also contribute to the Index on Censorship, In These Times, and Truthout.