Don’t EARN IT

Bad policy made with good intentions still delivers poor results. That is the case with the Eliminating Abusive and Rampant Neglect of Interactive Technologies Act (EARN IT) Act, sponsored by Sen. Richard Blumenthal (D-CT). The bill’s noble goal is to curb online sexual exploitation of children, but it makes the same mistakes of past liability-limiting legislation. And it goes on to make more mistakes by sweeping up a patchwork of 50 state laws and creating harmful privacy-killing incentives for tech companies.

The EARN IT Act seeks to curtail the legal liability enjoyed by hosts of third-party content online, a protection known as Section 230. That means that platforms like Facebook or YouTube, would be legally responsible for child sexual abuse material they—unknowingly—host from third parties. Yet, to date, there haven’t been any examples of websites using Section 230 to defend hosting that type of content, and in 2019 alone, tech platforms reported 70 million images to authorities. It would appear that major platforms are not hiding behind the current liability shield and, to the contrary, are very active in fighting this reprehensible content.

The EARN IT Act’s approach was already tried in 2018’s Fight Online Sex Trafficking Act (FOSTA), which aimed to rid the Internet of sex trafficking. Sadly, FOSTA is thought by many to have done more harm than good. 

FOSTA’s reduced liability protections made hosting borderline or questionable content too risky for many websites. That pushed online interactions between sex workers and clients offline and back onto the streets, where they are often more dangerous. FOSTA shows how curtailing liability in this way will have unintended consequences, no matter how noble the goals of the legislation. That should be a red flag for those considering adopting the same approach with the EARN IT Act.

EARN IT also extends the removal of platform liability protections to state laws. Fifty distinct, ever-changing and sometimes conflicting legal regimes will be bewildering to comply with for even the biggest tech firms and may prove lethal for small, niche, or nascent digital services. (Note here the antitrust implications of government regulation favoring Big Tech.)

The lack of clarity and a desire to avoid costly litigation will likely prompt a better-safe-than-sorry approach by these companies’ legal teams. Much more content will be taken down that this legislation intends. Some of that content may include speech from marginalized members of society. Groups representing LGBTQ+ interests have voiced concern over potential content purges that might rob members of the support they currently find online.

Every American that goes online should worry about the EARN IT Act’s disincentives for companies to offer end-to-end encryption and protects user’s privacy. The bill makes offering encryption an added trigger for liability for digital platforms. This means they might be better off not making users’ communication and information secure and unreadable to prying eyes. To make matters worse, the promotional material being circulated by its sponsor suggests that tech companies should scan all content to avoid liability. That is very nearly the dead opposite of the privacy and security that users want.   

Nobody in their right mind would oppose eliminating the sexual exploitation of children, but the EARN IT Act’s approach will fail and will cost Americans a lot in the process.