The EARN IT Act – Is Speech Really Free When It’s Filtered?

0 Comment

The EARN IT Act, which stands for Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2020, was introduced as a bill (the “Bill”) in the U.S. Senate on March 11, 2020.  The Act has been coined “FOSTA 2.0,” and for good reason.  Just as FOSTA has jeopardized an open and free Internet, the EARN IT Act, if passed, could cause even further censorship of legal sexual content.

As its acronym implies, the EARN IT Act would require online service providers to earn something – That something is the immunity they have already been entitled to under Section 230 of the Communications Decency Act (“CDA”). 

CDA Section 230 gives immunity to a website service provider for the illegal actions of third-party users on the website.  This enables the platforms to allow people to have the free speech they are guaranteed by the First Amendment since the providers do not have to worry that they will held be liable for the actions of users.

Under Section 230, if a user of, for example, a social media site, posts or transmits information that is furthering an illegal activity, including conspiracy, defamation, and yes – child pornography – the site provider is not liable for that.  Of course, the user who posted it is liable, and can be charged.  This architecture makes sense, in my opinion.  Holding a website service provider liable for the actions of users seems equivalent to holding the phone company liable for the actions of people speaking on the phone.  It wouldn’t be reasonable to hold the phone company liable for such, and same logic applies to online platforms.

Those who drafted the EARN IT Act don’t see it my way though.  The Bill, if passed, would “establish[] a National Commission on Online Child Sexual Exploitation Prevention” purportedly to:

… develop recommended best practices that providers of interactive computer services may choose to implement to prevent, reduce, and respond to the online sexual exploitation of children, including the enticement, grooming, sex trafficking, and sexual abuse of children and the proliferation of online child sexual abuse material.

So, the Act would establish a commission to develop best practices for website service providers to follow to supposedly curtail online sexual exploitation of children.  According to the Bill, each year, an officer of a provider of an interactive computer service may submit a written certification to the Attorney General stating that the provider—

(1) has conducted a thorough review of the implementation and operation of the best practices; and

(2) has a reasonable basis to conclude that review does not reveal any material non-compliance with the requirements of the best practices.

The Attorney General will publish on the Department of Justice website a public list of each provider that submitted a certification.

The Act, via Section 6(A), would amend CDA Section 230 to exclude immunity for underlying claims relating to abuse, trafficking, or pornography involving minors.  It takes the immunity of Section 230 away from the website service provider when a claim, whether criminal or civil, relates to such.

Section 6(B) then explains a “safe harbor,” where Section 6(A) doesn’t apply, and immunity is supplied, when one of the two prongs are met:

(i) an officer of the provider has elected to certify to the Attorney General … that the provider has implemented, and is in compliance with, the child sexual exploitation prevention best practices; or

(ii) the provider has implemented reasonable measures relating to the matters preventing child sexual exploitation to prevent the use of the interactive computer service for the exploitation of minors.

Together, these sections of the Act would change the existing law so that a website service provider does not have Section 230 immunity, unless it earns it by complying with the “best practices” or some similar measures.

We don’t know exactly what the “best practices” will look like.  Section 9 of the Bill though says that “nothing in this Act or the amendments made by this Act shall be construed to require a provider of an interactive computer service to search, screen, or scan for instances of online child sexual exploitation.”  Practically speaking, however, how else is a platform supposed to “prevent” (language used in the purpose of the Bill) the sharing of abusive material?  An interactive computer service would have to police the actions of users, inevitably resulting in censorship of communications that don’t relate to child exploitation. 

We know this because we’ve seen the same censorship as a result of the “Allow States and Victims to Fight Online Sex Trafficking Act” (FOSTA), which I’ve written about previously.  FOSTA, passed in 2018, weakens Section 230 by making websites liable for prostitution or sex trafficking that occurs via their sites.  Websites are trying to minimize their risk by using filters and monitoring content and communication.  Legal content and discussion relating to sex and sexuality, as well as legally-generated pornography, is getting filtered out in the mix –  This is government-created censorship.

Thankfully, FOSTA is currently being challenged in the court system.  Passage of the EARN IT Act would not only weaken Section 230, but explicitly amend out protections, making things much worse for free speech than even under FOSTA.  It’s highly likely that the bill, if passed, will also threaten privacy.  There are whispers that the government will write into the best practices blows to end-to-end encryption since the government has complained for years that such technology makes it difficult to collect evidence about crimes. 

The First Amendment guarantees U.S. citizens a right to freedom of speech.  With regard to the EARN IT Act, the ends do not justify the means. Although protecting children from exploitation is a noble cause, the government should find a way to do it other than by limiting legal and legitimate speech.  Maybe the Bill will die, and in so doing, let us live in the way our country’s founders envisioned – Because filtered speech is not free.

Share This:

0 Comments

Leave a Comment