Frequently Asked Questions
- What is the EARN IT Act?
- What is the Communications Decency Act?
- What is Section 230?
- What is FOSTA-SESTA?
- What has the impact of FOSTA-SESTA been on the Internet as a whole?
- How has FOSTA-SESTA impacted sex workers and other marginalized communities?
- Who supports the EARN IT Act?
- What organizations support the EARN IT Act?
- How have those politicians interacted with Section 230 in the past?
- What is Child Sexual Abuse Material (CSAM)?
- Why do some people support the EARN IT Act?
- Why do some people oppose the EARN IT Act?
- Which companies and organizations oppose the EARN IT Act?
- How will the EARN IT Act kill encryption and free speech?
- What impact will the EARN IT Act have on Internet privacy?
- How will the EARN IT Act impact marginalized communities (sex workers, LGBTQ, etc.)?
- How will the EARN IT Act impact our favorite social media platforms?
- Why is the EARN IT Act the wrong approach?
- But isn’t the EARN IT Act good for survivors?
- Doesn’t the EARN IT Act help survivors bring lawsuits?
- Doesn’t the mere threat of lawsuits incentivize tech companies to better monitor their sites for CSAM?
- Could the EARN IT Act have international impacts?
What is the EARN IT Act?
The EARN IT Act makes two major changes to existing law, as well as four smaller, but not necessarily less impactful, changes.
First, the Act creates a 19-member commission tasked with creating best practices for tech companies in addressing all elements of child exploitation, child sexual abuse material (CSAM), and child sex trafficking. This commission is to have members drawn from law enforcement, victims’ services, and tech companies, and is to be led by the Attorney General. Each member is appointed to a five year term without compensation.
The commission will have a broad mandate to cover all aspects of “preventing, identifying, disrupting, and reporting online child sexual exploitation,” while considering certain impacts on tech companies, data security, and the current state of technology. The appointed commissioners are told to specifically consider age rating and gating systems, parental controls, coordination with privately-developed initiatives, support of content moderators, compliance, and other factors. The commission must submit these best practices to the Attorney General within 18 months of when a majority of commission members have been appointed.
It is unclear how these best practices will be used. EARN IT as amended makes explicit that the best practices are to be recommendations only, and the commission must also submit alternatives that take into consideration the nature of the tech companies to which those alternatives are recommended (e.g. whether a tech company provides services to the public or hosts third party information). However, it is possible that some or all of these recommendations could become incorporated by courts into the enforcement of child exploitation laws.
Second, the EARN IT Act creates a carveout to 47 U.S.C. § 230 as it pertains to child exploitation laws. This carveout is similar to the carveout of § 230 created by FOSTA-SESTA in 2018, but is more broad. Section 230 has never provided immunity to tech platforms that host content that violates federal criminal law. In addition to that liability which companies already face, EARN IT specifies that tech platforms will have no § 230 immunity for hosting content posted by third parties where that content is a violation of:
(1) federal civil child exploitation law 18 U.S.C. § 2255 (civil claims related to 14 federal criminal laws relating to child exploitation);
(2) any state criminal law relating to CSAM that uses the definition of CSAM found in 18 U.S.C. 2256(8); or
(3) any state level civil claim related to CSAM that uses the definition of CSAM found in 18 U.S.C. 2256(8).
These changes create new civil and criminal liability for tech platforms that is both broader and likely easier to apply than the first carveout of § 230 created by FOSTA. FOSTA made no carveout for state level civil claims, though these are the primary trafficking-related claims being brought against tech companies.
Whereas FOSTA created state level criminal liability for platforms where the conduct underlying a state law violation also would have violated federal anti-trafficking laws, EARN IT creates state level criminal liability under laws prohibiting any conduct related to CSAM. Under EARN IT only the definition of CSAM in state law must match the federal definition in order for the state law to pierce the 230 shield. Thus, under EARN IT, states will have leeway to create and enforce a wide variety of laws against tech companies that may use different standards. The likely impact of EARN IT’s § 230 carveout, if passed into law, is that tech companies will adhere to the standards created by the most conservative states.
In addition to these two major changes, EARN IT (1) amends twenty federal laws by replacing the term “child pornography” with the term “child sexual abuse material” (the Act states that the two terms are legally identical in meaning); (2) expands the amount of information requested from tech companies in reports of CSAM and other forms of child exploitation to the National Center for Missing and Exploited Children (NCMEC) to include, at tech companies’ discretion, identifying information regarding the “involved minor” if that information is “available;” (3) amends NCMEC reporting requirements further to allow tech companies to keep their reports, including actual CSAM, indefinitely to prevent CSAM proliferation; and (4) mandates that the Administrator of the Office of Juvenile Justice and Delinquency receive a budget of at least one million dollars to work with federal agencies to develop new tech tools to provide “actionable information” to law enforcement. Each of these changes is discussed in the section-by-section breakdown.
What is the Communications Decency Act?
The Communications Decency Act (CDA) was one part of a 1996 bill which Congress used to attempt to regulate the Internet for the first time. The CDA was Congress’ response to the idea that online pornography needed regulating. Many of the Act’s original provisions were struck down on First Amendment grounds. However, the most impactful and resilient part of the CDA, Section 230, still stands.
What is Section 230?
Section 230 of the Communications and Decency Act (CDA) is the most important and referenced provision, which states that: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
This provision means that Internet platforms are not liable for the content users produce and post to their platforms. For example, Yelp is not liable for defamation if a Yelp user posts a negative restaurant review, even if the post is malicious.
Section 230 also contains a “safe harbor” clause, which states that providers and platforms don’t lose their 230 protections if they moderate their websites (e.g. remove offensive or harmful content).
It has become commonplace for politicians to claim that Section 230 discourages Internet providers and platforms from taking accountability for content their users post. But Section 230’s combination of a broad liability shield with a “safe harbor” for content moderation was actually originally intended to incentivize moderation (e.g. the removal of offensive or harmful user-generated content).
Section 230 was written in response to seemingly perverse legal outcomes in a series of cases decided in the 1990s. In a 1991 case, a court ruled that a website that hosts user-generated content is more analogous to a bookstore than to a traditional publisher.
Thus, like a bookstore owner, the website was not legally liable for hosting the content others had written.
This was the legal standard that websites were held to until a 1995 case, where another court ruled that a website owner who advertised their site as “family-friendly” and engaged in content moderation could be held liable for that content because they were actively trying to find and remove harmful content from their site.
Congress assessed that these legal outcomes actually disincentivized website owners from monitoring their users’ posts. They wrote Section 230 to ensure that the act of content moderation would not make website owners liable for content they missed.
Many have said Section 230 is responsible for the creation of a free and open Internet. Without it, the Internet might have looked much more like traditional publishing or other forms of media, in which content is made only by a small group of people.
What is FOSTA-SESTA?
Public Law 115-164, better known as FOSTA-SESTA (“Fight Online Sex Trafficking Act” and “Stop Enabling Sex Traffickers Act”), became law on April 11th, 2018, with bi-partisan support.
This package of bills was sponsored by Senator Rob Portman (Democrat, Ohio) in the Senate and by Representative Ann Wagner (Republican, Missouri) in the House of Representatives, with support from various other parties, including: Coalition Against Trafficking in Women, Shared Hope International, Rights4Girls, Amy Schumer, and Seth Myers.
After years of pushing back, FOSTA-SESTA was eventually supported by powerful tech corporations, including: Facebook, and the Internet Association. Some tech groups, such as R Street, supported the expansion of criminal provisions, which would directly target the criminalization of the sex trade while opposing the civil liability for websites.
Other tech groups, such as the Center of Democracy and Technology and the Electronic Frontier Foundation, continued to oppose the bill for its impacts on marginalized communities, including sex workers.
FOSTA-SESTA was the first substantive amendment to Section 230, creating a broad carveout for civil lawsuits against Internet providers and platforms.
It also expanded criminal liability for any Internet platform, including apps and listservs—which facilitate prostitution, essentially creating a federal third-party law with a maximum penalty of up to 25 years in prison.
The stated goal of this law was to reduce human trafficking by amending Section 230 of the Communications Decency Act.
The law has actually put increased pressure on Internet platforms to censor their users and push vulnerable communities into increased financial insecurity, housing instability, and exposure to violence.
While it was introduced as an anti-trafficking bill that would give victims of crime the ability to sue people who profited off of their victimization, it has not been used in civil litigation against any platforms. But victims of trafficking have filed several lawsuits against websites, hotels and tech intermediaries by victims of trafficking using previously-existing laws.
In July 2020, we saw the first use of the new criminal provisions created by FOSTA-SESTA when CityXGuide was seized and its owner arrested.
What has the impact of FOSTA-SESTA been on the Internet as a whole?
Because FOSTA-SESTA was a poorly written law combining a criminal provision with an unrelated rollback of Section 230 protections, it’s unclear how online platforms can minimize risk. This uncertainty led to the removal of all kinds of sexual content, including material unrelated to sex trafficking or sex work.
In the aftermath of FOSTA, as described by Survivors Against SESTA, many online platforms, including Craigslist and Reddit, removed entire sections of their sites that might contain sexual content.
FOSTA-SESTA’s constitutionality is still being litigated. Studies on its effects have suggested that it has resulted in increased violence against sex workers while resulting in no reduction in sex trafficking.
As of 2020, only one lawsuit has been brought using the criminal provision and the new civil provisions have rarely been used. However, that hasn’t stopped Congress from declaring FOSTA-SESTA a success and even suggesting a similar approach with the EARN IT Act.
How has FOSTA-SESTA impacted sex workers and other marginalized communities?
Before SESTA passed, sex workers expertly predicted its impact. Sex workers knew that this law would lead to the deaths of our community members. After the bill’s passage, our predictions were proved correct with horrifying immediacy.
Since then, sex workers have been the only ones documenting its impact and calling for a holistic approach to addressing violence. Our knowledge of online harm reduction and the impact of Section 230 legislation is immense, yet still ignored. At this stage, our exclusion is active erasure.
Who supports the EARN IT Act?
The EARN IT Act is sponsored by:
- Senate Judiciary Committee chairman, Lindsey Graham (Republican, South Carolina)
- Sen. Richard Blumenthal (Democrat, Connecticut)
- Sen. Josh Hawley (Republican, Missouri)
- Sen. Dianne Feinstein (Democrat, California)
- Sen. Kevin Cramer (Republican, North Dakota)
- Sen. Doug Jones (Democrat, Alabama)
- Sen. Joni Ernst (Republican, Iowa)
- Sen. Bob Casey (Democrat, Pennsylvania)
- Sen. Sheldon Whitehouse (Democrat, Rhode Island)
- Sen. Dick Durbin (Democrat, Illinois)
What organizations support the EARN IT Act?
- National Center for Missing & Exploited Children
- National Center on Sexual Exploitation
- Shared Hope International
How have those politicians interacted with Section 230 in the past?
Many of these politicians also supported FOSTA-SESTA, which increased legal risk for platforms hosting sexual content, resulting in increased violence towards those in the sex trades. The EARN IT Act’s supporters are disconnected from the reality of what Section 230 does.
It’s not clear that Section 230 has prevented litigation for child sexual abuse material. Our legal researchers found only two cases, both from more than ten years ago, where Section 230 was raised as a defense.
What is Child Sexual Abuse Material (CSAM)?
Child sexual abuse material (CSAM) is a new term for child pornography or any sexually explicit material where the person depicted is under the age of 18.
Why do some people support the EARN IT Act?
There are a range of supporters of the EARN IT Act. Some of its supporters believe that websites that host explicit content should be liable to civil lawsuits when they don’t remove sexually explicit content of minors.
These supporters feel that as the law currently stands, it is too hard to file lawsuits against those companies, so they would like to create more explicit standards around what platforms have to do to proactively remove explicit content from their sites.
Other supporters of EARN IT would like to stop all companies that host sexually explicit content of both minors and adults. They are using the EARN IT Act to, much like SESTA/FOSTA, make the potential for criminal and civil charges so great that no one would ever host that content.
Other supporters of EARN IT are looking to expand the ability of law enforcement to gain access to information in digital spaces.
Why do some people oppose the EARN IT Act?
Many people and organizations oppose the EARN IT Act because it is a poorly written bill that asks private companies to increase surveillance, monitoring, and moderation under the threat of increased liability—just like FOSTA/SESTA—instead of taking the necessary steps to actually address or prevent child abuse.
This tactic had detrimental effects, increasing experiences of violence and economic instability among sex workers. Sex workers, survivors, sex working survivors, drug-users, police and prison abolitionists, the harm reduction community, and big tech oppose the EARN IT Act.
Which companies and organizations oppose the EARN IT Act?
- The American Civil Liberties Union (ACLU)
- Center for Democracy & Technology
- Human Rights Watch
- Action Network
- Americans for Prosperity
- Access Now
- Mozilla Foundation
- Fight for the Future
- Wikimedia Foundation
- Surveillance Technology Oversight Project
- Consumer Technology Association
- Internet Association
- Computer & Communications Industry Association
How will the EARN IT Act kill encryption and free speech?
From the beginning, there has been lengthy conversation on how this will challenge encrypted platforms like Signal. While Sen. Leahy introduced an Amendment that said the commission could not explicitly ban encryption, the “best practices” created by this commission will be so stringent as to make encryption nearly impossible.
For example, they may not ban encryption directly, but they can require that platforms have access to all the communications that happen (with a warrant).
As the ACLU describes:
“The amended EARN IT Act doesn’t solve the encryption problem—it just shifts it to a different place. Under the amended EARN IT Act, platforms would face state criminal and civil liability for negligent or reckless publishing of child sexual abuse material (CSAM).
These legal standards could force platforms to undermine or weaken their own encryption and privacy practices in order to avoid legal liability. Plaintiffs could argue that end-to-end encryption, itself, is reckless or negligent conduct.
Claimants could argue that platforms deploying strong encryption recklessly or negligently protected against accessing contents of communications although the platform was reasonably aware that its systems were used to distribute illegal child sexual abuse material (CSAM).
In addition, claimants could argue that the providers have liability for failing to take actions—like content filtering or adoption of the UK’s ‘ghost proposal’ that would allow law enforcement to eavesdrop on private communications—which functionally undermine the ability to offer strong cybersecurity.”
What impact will the EARN IT Act have on Internet privacy?
The Internet that we use today is in large part because the protections afforded by Section 230 fostered innovation and growth for early Internet companies. FOSTA-SESTA was the first substantive amendment to Section 230.
The EARN IT Act similarly seeks to dismantle the protections afforded by Section 230. It is impossible to say what impact the EARN IT Act will have on Internet privacy because of its expansive mandate and lack of specificity, but the history of these attempts tells us a lot.
The EARN IT Act proposes a commission of 19 representatives (law enforcement, victim service providers for child sexual abuse, and tech companies) who will create a set of best practices on how an Internet service provider (ISP) should operate.
While they cannot explicitly ban encryption, they can create best practices which are so stringent that encryption would be nearly impossible. Experts believe that this is a thinly veiled attempt to attack encryption and increase policing and surveillance of already marginalized communities.
The best practices will also inform law enforcement on the expectations for websites, meaning operating outside of these practices will still carry de facto liability. Similar to FOSTA-SESTA, we believe that the EARN IT Act will chill speech, put pressure on ISPs to shutter services due to fears of financially crippling litigation, and censor users and speech.
How will the EARN IT Act impact marginalized communities (sex workers, LGBTQ, etc.)?
Because of the overly broad mandate of the EARN IT Act, communities that are already being heavily policed and surveilled will be the ones to feel the impact of the EARN IT Act first.
The EARN IT Act will encourage private companies to increase red flag indicators and monitor their users’ speech. Rather than increasing their legal liability, platforms will err on the side of overly aggressive moderation of users’ communication (like with FOSTA-SESTA).
Hosting information related to the sex trade—including neutral platforms that sex workers use to communicate with clients and each other—has numerous areas of liability, including FOSTA’s huge criminal expansion. Knowingly having sex workers on your platform exposes companies to a range of civil and criminal liability.
EARN IT heightens platforms’ existing incentives to remove, isolate and erase workers with no mechanism for accountability, transparency, or interest in the impact on health and safety.
The EARN IT Act focuses on youth, which means increased scrutiny for young people trying to access information.
- The EARN IT Act might hinder your ability for young people trying to access information about abortion care.
- Young LGBTQ people trying to find information about relationships, dysphoria, or gender identity might have this type of communication flagged.
- For many young queers, intergenerational educational friendships have been life-saving.
While the EARN IT Act is broad and vague, we know the patterns of silencing and erasure that have been happening for the last several years online. We know who will be disproportionately impacted by the EARN IT Act.
How will the EARN IT Act impact our favorite social media platforms?
EARN IT will likely result in platforms with access to user content (e.g. Twitter, Instagram, Facebook, etc.) doing more detailed screening to see if child sexual abuse material (CSAM) is being shared. Given the scale at which these platforms operate, this is likely to result in more automated removals and algorithmic manipulations of all sexual content.
Why is the EARN IT Act the wrong approach?
The EARN IT Act is the wrong approach. We need something new. We need solutions developed by impacted communities, instead of prioritizing prosecutors and policing.
Survivors—CSAM survivors, sex working survivors, queer survivors, incarcerated survivors, struggling survivors, angry survivors, survivors at peace, and people fighting to survive—should be leading this conversation. Instead, Sen. Blumenthal and Sen. Graham have purposefully created conditions to make more people unsafe.
The backers of the EARN IT champion FOSTA-SESTA as a win. They celebrate the removal of life-saving resources as a win. We are not collateral damage. These consequences are not unintended.
Congress continues to demonstrate their lack of regard for people in the sex trades. EARN IT neglects and obfuscates violence prevention in favor of expanding the criminalization and isolation that make marginalized people more vulnerable to violence in the first place.
But isn’t the EARN IT Act good for survivors?
The EARN IT Act is the result of a public discourse that imagines survivors to fit one kind of mold. Laws like EARN IT treat survivors of exploitation as a discrete group of people from sex workers. These laws assume that the needs of sex workers and that the needs of survivors are different. This makes it easy to think that a law that causes harm to sex workers is okay if it promises a benefit to survivors. But sex workers are survivors. We cannot be separated into categories, and our needs are not in opposition. Any policy that harms sex workers also harms survivors.
Doesn’t the EARN IT Act help survivors bring lawsuits?
EARN IT’s 230 carve out potentially decreases a barrier to bringing a law suit against a private company. But Section 230 has rarely obstructed lawsuits of this nature. Civil lawsuits require access to a lawyer, may take many years for an outcome, often retraumatizes the plaintiff. Law suits also do not guarantee an outcome. All too often only plaintiffs who juries and judges consider “sympathetic” receive any remedy in court. Because of this, sex working survivors, or survivors with marginalized identities, struggle to find lawyers who will take their case. Even when they can, these survivors may be considered unworthy of relief by court systems.
Punishment is not prevention. Increased civil liability does nothing to address the root causes of child exploitation. Rather, civil liability puts the onus on survivors to enforce child exploitation laws. Civil liability is cheap for Congress to put in place because survivors take on all of the cost.
Doesn’t the mere threat of lawsuits incentivize tech companies to better monitor their sites for CSAM?
It is already illegal for tech companies to host CSAM. Tech companies’ increased liability imposed by FOSTA did not cause those companies to better monitor their sites for trafficking. Instead, it caused companies to over-correct by kicking sex workers off of their sites categorically and without regard to trafficking. Perversely, reduced access to online spaces made sex working people more vulnerable to trafficking and reduced trafficking investigations.
EARN IT’s increased liability will likely have a similar impact: reducing vulnerable communities’ digital access for vulnerable communities and increasing vulnerability.
Could the EARN IT Act have international impacts?
Yes. The EARN IT Act, just like any U.S. Internet policy could have international impacts. After FOSTA-SESTA became law, reports of harm came in from all over the world. Websites used by non-US based sex workers which were hosted in the U.S. disappeared after FOSTA-SESTA.