Earn It Act Opponents Draw Parallels to SESTA-FOSTA Flaws

The wide spectrum of groups against the Earn It Act shows it’s an ill-conceived bill that will repeat the same mistakes as anti-sex trafficking legislation passed in 2018, said representatives from progressive, conservative, industry and academic groups, in interviews. A child advocate noted the wide-ranging support from victims’ rights organizations.

Introducing the bill, Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., and Sen. Richard Blumenthal, D-Conn., highlighted the support from some 70 groups, survivors and stakeholders. Asked for a complete list of supporters Tuesday, Graham's and Blumenthal's offices didn’t comment. If Senate Majority Leader Mitch McConnell, R-Ky., sends the bill to the floor, sponsors could expect opposition lawmakers to place a hold, said NetChoice Vice President Carl Szabo.

Szabo and officials from Free Press, Americans for Prosperity, Silicon Flatirons and R Street Institute said the legislation might not address the issue of child exploitation, and it could make the internet less secure by weakening encryption. They compared it to the Stop Enabling Sex Traffickers-Allow States and Victims to Fight Online Sex Trafficking package, calling it problematic legislation meant to address a noble cause but that lacked broad support (see 1803210064). SESTA-FOSTA when passed stirred controversy, too.

Rights4Girls Staff Attorney Cherice Hopkins noted her organization’s Earn It Act support. It's also backed by the National Center for Missing and Exploited Children, the National Children's Alliance -- an umbrella organization for 800-plus child advocacy centers -- The Rape, Abuse & Incest National Network and Shared Hope International. An NCMEC representative recently told us regulation is the only way the tech industry will hold itself accountable on Child Sexual Abuse Material (CSAM). University of California, Berkeley professor Hany Farid, who specializes in analyzing digital images, also supported the bill. The legislation will incentivize the tech industry to stop prioritizing profits over safety, he wrote for Wired. Industry “has been largely obstructionist and full of naysayers" on deploying "new technologies to protect us," he argued.

An encryption amendment from Sen. Patrick Leahy, D-Vt., was an improvement, but the Earn It Act allows states to threaten encryption, instead of DOJ, said Free Press Senior Policy Counsel Gaurav Laroia. CSAM is illegal under federal law, regardless of protections from Section 230 of the Communications Decency Act, he noted. Better to give law enforcement more resources to investigate and prosecute, he said.

SESTA-FOSTA doesn’t seem to be solving problems of sex trafficking, instead creating other problems, said Silicon Flatirons Executive Director Amie Stepanovich. Section 230 liability protections are vital for allowing the free flow of speech online, she said. Smaller companies and startups are going to feel the regulatory burden if those protections are further threatened, she said.

SESTA-FOSTA was more narrowly tailored, with a clear objective in mind, said Szabo. The Earn It Act risks validity of prosecution against child abusers because it would give rise to Fourth Amendment arguments in defense, Szabo added. He said it’s notable that groups like Human Rights Watch, Americans for Prosperity, Cato Institute, Fight for the Future, the Competitive Enterprise Institute and Internet Association are united in opposition. The Electronic Frontier Foundation cited what it called flaws with the Leahy amendment, he said. The amendment opens the door for state enforcers to use loopholes to undermine encryption, EFF Policy Analyst Joe Mullin argued. One example is requiring messages to be scanned on a local device before encryption, effectively circumventing the Leahy amendment, Mullin wrote.

SESTA-FOSTA resulted in websites not hosting legitimate speech, said Americans for Prosperity Senior Policy Analyst Billy Easley. Exposing sites to civil liability with vague and undefined legislation forces companies to take a cautious approach, he said. There's an explosion of CSAM, but the Earn It Act isn’t a serious attempt to address the problem, he said. Instead, fully fund law enforcement investigation and develop a centralized strategy among the White House, agencies and industry, he argued.

It’s not clear sponsors thought the legislation all the way through, said R Street Institute Resident Fellow-Technology and Innovation Jeffrey Westling. Stakeholders worked on the bill for two or three months, and then a manager’s amendment was dropped a few days before markup, significantly altering the legislation, he noted. The “earn it” component was removed entirely, as the government-backed commission is now tasked with establishing voluntary standards, he said. He noted law enforcement is also in favor of the legislation. But allowing a patchwork of state laws to dictate operability of the internet will have drastic effects, he said.