Current Status and Next Steps for the EARN IT Act of 2022:
Current Status:
Senate: (Feb 11, 2022) The EARN IT Act of 2022 was introduced into the Senate on Feb 1, 2022 and was voted out of the Judiciary Committee on February 10, 2022 without Amendments. (S. 3538) The next step would be to move the bill to the full Senate for a vote, but it is up to Senate Majority leader Chuck Schumer to determine if that will happen.
House of Representatives: (Feb 11, 2022) The EARN IT Act has been introduced into the House of Representatives and has been assigned to the Energy and Commerce Committee. (H. 6544)
Our Next Steps: Advocates from Survive EARN IT will be hosting a WTF is EARN IT community-focused call to explain the bill, and discuss what we can do on February 22 at 6pm EST/3pm PST. Register here.
What has happened since EARN IT was last in Congress?
Since the 2018 passage of FOSTA/SESTA and the loss of many platforms and tightening of accounts, sex workers have been struggling to find consistent platforms to find clients and work. Sex workers were still adapting to a post-FOSTA web when The EARN IT Act of 2020 was originally introduced at the start of the pandemic.
The COVID-19 pandemic exacerbated many of these challenges, as in-person work became more difficult and higher risk of exposure to the virus. Many sex workers went online as a harm reduction and safety tool, including many people who had never been in the sex industry before. This flooded already stretched markets and structural barriers to making a living online (needing privacy, a stable internet connection, finding new clients, etc) made it even more difficult for sex workers moving online to make up lost income. Because the sex trade is mostly criminalized and a cash economy, workers had significant challenges accessing the expanded unemployment insurance and stimulus payments.
During the pandemic, we have seen attacks from financial services with PornHub, IWantClips and OnlyFans, threatening sex workers survival during a pandemic. Now, two years into the pandemic, EARN IT Act of 2022 has been reintroduced, despite rising evidence of the failure of FOSTA-SESTA and the increased necessity for online avenues for work.
What has happened with FOSTA/SESTA since 2020?
Courts have been busy with FOSTA-SESTA since the 2020 introduction of the EARN IT Act, and recent cases highlight a conclusion we already knew: FOSTA-SESTA is hurting sex workers, survivors, and those who hold both identities and restricting access to sex education and health materials without providing any real benefits to victims of sex trafficking.
- An ongoing case out of California, Doe v. Mindgeek, is a good example. The court held that Mindgeek, the company behind Pornhub, RedTube, and YouPorn, could be a participant in sex trafficking because it “should have known” that a user was engaged in sex trafficking after receiving requests to take down videos and seeing video descriptions using terms like “teen” and “underage.” The court hasn’t gotten a chance to rule on whether Mindgeek actually was participating in sex trafficking yet. However, the court’s approach may be unrealistic, as takedown requests don’t always relate to sex trafficking and terms like “teen” can be marketing for content that doesn’t involve minors. The court’s view on what makes Mindgeek liable would push platforms to monitor and restrict what sex workers do on their sites (especially independent sex workers) or refuse to work with sex workers altogether.
- FOSTA-SESTA has caused problems on social media platforms too. In the California case, Doe v. Twitter, and the Texas Supreme Court case, In re Facebook, judges allowed parties to sue Twitter and Facebook using FOSTA-SESTA. The Texas case is particularly outlandish, since the Texas judge completely ignored the actual language of FOSTA-SESTA, choosing instead to eliminate immunity for a huge number of criminal and civil claims against platforms. This is a huge issue for sex workers: if judges are going to let people sue platforms under FOSTA-SESTA regardless of what the law actually says, platforms have an even stronger incentive to de-platform sex workers—or anyone posting sexually explicit materials.
How has internet censorship impacted other groups?
Sex workers have not been the only community who have experienced erasure and isolation in the last several years. As restrictions have evolved, other groups face the same removal from platforms, and are struggling to navigate these changes. Especially as the last few years have also seen more attacks on the queer community, abortion access and democracy activists, internet censorship has been and increasingly broad issue.
- One study found that 92% of parental control apps wrongly blocked LGBTQ+ resources and sexual health information. This included resources like the Trevor Project, a crisis hotline supporting LGBTQ, especially trans, youth.
- When Texas’s abortion ban created increased liability around abortion access and information, Instagram briefly removed an account for Plan C, which offers information on self-managed abortion care. Reproductive justice groups have been increasingly vocal about how social media is censoring and blocking posts on abortion care, and Facebook has been notorious about blocking information about women’s sexual health because they consider it “adult”.
