EARN IT US Internet Censorship Law

Adult industry, sex worker and digital rights advocates unanimously have sounded the alarm about the implications for state censorship and privacy issues of the revived EARN IT Act, which was re-introduced to the US Senate by Richard Blumenthal.

The bill is a broad overhaul of Section 230 protections to strip platforms of immunity for third-party uploaded content. The expected industry response is for social media and internet services to totally ban swathes of content that contain controversial content rather than attempt to recognise just those posts that contravene the law.

As XBIZ has reported, EARN IT will also open the way for politicians to define the legal categories of pornography and pornographic website as they which is a cherished goal of morality campaigners that seek to reintroduce obscenity prosecutions for content now protected by Free Speech jurisprudence.

EARN IT has been championed by top religiously-motivated anti-porn crusading groups such as NCOSE (formerly Morality in Media).

The Electronic Frontier Foundation, the 30-year-old advocacy group that has been a pioneer in defending digital civil liberties, sent a letter this week to the United States Senate, opposing the controversial EARN IT Act -- which the EFF says will result in online censorship that will disproportionately impact marginalized communities, will jeopardize access to encrypted services, and will place at risk the prosecutions of the very abusers the law is meant to catch.

The Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2020, or EARN IT, is designed to roll back protections for online platforms under Section 230 of the 1996 Communications Decency Act. Section 230 is widely considered the First Amendment of the Internet. As AVN reported last month, the law is not only the backbone of open online communications, but for adult content online as well.

Efforts to roll back Section 230 protection will have a significant adverse impact on the adult entertainment industry if passed, First Amendment attorney Lawrence Walters told AVN in August. Any change to Section 230 could result in restrictive content moderation rules or elimination of the platforms themselves.

Platforms would be required to earn the protections currently afforded by Section 230 by following a set of vaguely defined best practices to prevent illegal activities, specifically sex trafficking and Child Sex Abuse Material (CSAM), if EARN IT passes.

Under EARN IT, states will be free to impose any liability standard they please on platforms, including holding platforms liable for CSAM they did not actually know was present on their services, EFF warned in its letter to the Senate. Nothing in the bill would prevent a state from passing a law in the future holding a provider criminally responsible under a 'reckless' or 'negligence' standard.

In other words, under EARN IT, state governments could punish online platforms for almost anything that could be broadly interpreted as CSAM or Sex trafficking, even bringing criminal charges against site operators. The dangers for the adult industry are clear if states are allowed to define a wide range of sexual content as promoting sex trafficking.

But sex worker advocacy groups have also warned that the EARN IT law could lead to increased surveillance of workers in the sex industry. EFF also addresses the surveillance threat in its letter to the Senate.

End-to-end encryption ensures the privacy and security of sensitive communications such that only the sender and receiver can view them, the group wrote. But the EARN IT Act threatens to undermine and disincentivize providers from providing strong encryption.

The EFF compares EARN IT to a previous sex trafficking law, FOSTA/SESTA, which is the only law so far passed that actually curtails Section 230 protections, in cases when sites are deemed to promote online sex trafficking. But that law had the opposite effect from its stated intention.

Instead, it has forced sex workers, whether voluntarily engaging in sex work or forced into sex trafficking against their wills, offline and into harm's way, EFF wrote. It has also chilled their online expression generally, including the sharing of health and safety information, and speech wholly unrelated to sex work.

In the letter, EFF urges the Senate not to fast track the EARN IT bill -- and to vote it down if or when it finally comes before the entire Senate. The bill passed through the Judiciary Commitee in July.

The day before a committee debate and vote on the EARN IT Act, the bill's sponsors replaced their bill with an amended version . Here's their new idea: instead of giving a 19-person federal commission, dominated by law enforcement, the power to regulate the Internet, the bill now effectively gives that power to state legislatures

And instead of requiring that Internet websites and platforms comply with the commission's best practices in order to keep their vital legal protections under Section 230 for hosting user content, it simply blows a hole in those protections. State lawmakers will be able to create new laws allowing private lawsuits and criminal prosecutions against Internet platforms, as long as they say their purpose is to stop crimes against children.

The whole idea behind Section 230 is to make sure that you are responsible for your own speech online--not someone else's. Currently, if a state prosecutor wants to bring a criminal case related to something said or done online, or a private lawyer wants to sue, in nearly all cases, the prosecutor has to seek out the actual speaker. They can't just haul a website owner into court because of the user's actions. But that will change if EARN IT passes. That's why we sent a letter [PDF] yesterday to the Senate Judiciary Committee opposing the amended EARN IT bill.

Section 230 protections enabled the Internet as we know it. Despite the politicized attacks on Section 230 from both left and right, the law actually works fine . It's not a shield for Big Tech--it's a shield for everyone who hosts online conversations. It protects small messaging and email services, and every blog's comments section.

Once websites lose Section 230 protections, they'll take drastic measures to mitigate their exposure. That will limit free speech across the Internet. They'll shut down forums and comment sections, and cave to bogus claims that particular users are violating the rules, without doing a proper investigation. We've seen false accusations succeed in silencing users time and again in the copyright space, and even used to harass innocent users. If EARN IT passes, the range of possibilities for false accusations and censorship will expand.

EARN IT Still Threatens Encryption

When we say the original EARN IT was a threat to encryption, we're not guessing. We know that a commission controlled by Attorney General William Barr will try to ban encryption, because Barr has said many times that he thinks encrypted services should be compelled to create backdoors for police. The Manager's Amendment, approved by the Committee today, doesn't eliminate this problem. It just empowers over 50 jurisdictions to follow Barr's lead in banning encryption.

An amendment by Sen. Patrick Leahy (D-VT), also voted into the bill, purports to protect encryption from being the states' focus. It's certainly an improvement, but we're still concerned that the amended bill could be used to attack encryption. Sen. Leahy's amendment prohibits holding companies liable because they use end-to-end encryption, device encryption, or other encryption services. But the bill still encourages state lawmakers to look for loopholes to undermine end-to-end encryption , such as demanding that messages be scanned on a local device, before they get encrypted and sent along to their recipient. We think that would violate the spirit of Senator Leahy's amendment, but the bill opens the door for that question to be litigated over and over, in courts across the country.

And again, this isn't a theoretical problem. The idea of using client-side scanning to allow certain messages to be selected and sent to the government, circumventing the protections of end-to-end encryption, is one we've heard a lot of talk about in the past year. Despite the testimonials of certain experts who have sided with law enforcement, the fact is, client-side scanning breaks the protections of encryption. The EARN IT Act doesn't stop client-side scanning, which is the most likely strategy for state lawmakers who want to use this bill to expand police powers in order to read our messages.

And it will only take one state to inspire a wave of prosecutions and lawsuits against online platforms. And just as some federal law enforcement agencies have declared they're opposed to encryption, so have some state and local police.

The previous version of the bill suggested that if online platforms want to keep their Section 230 immunity, they would need to earn it, by following the dictates of an unelected government commission. But the new text doesn't even give them a chance. The bill's sponsors simply dropped the earn from EARN IT. Website owners--especially those that enable encryption--just can't earn their immunity from liability for user content under the new bill. They'll just have to defend themselves in court, as soon as a single state prosecutor, or even just a lawyer in private practice, decides that offering end-to-end encryption was a sign of indifference towards crimes against children.

Offering users real privacy, in the form of end-to-end encrypted messaging, and robust platforms for free speech shouldn't produce lawsuits and prosecutions. The new EARN IT bill will do just that, and should be opposed.