What is the EARN IT Act of 2022 (S. 3538)?
The EARN IT Act of 2022 is a bill that is short on details but long on consequences. The EARN IT Act erodes online privacy and makes online platforms less accessible to already marginalized communities.
What does the EARN IT Act Do?
(1) EARN IT creates a nineteen person commission, headed by the Attorney General and dominated by law enforcement, that would be to create recommendations for websites, apps & listservs. The Committee’s mandate is overly broad and involves no accountability or interest in the efficacy of their recommendations.
(2) EARN IT creates a broad carve-out of the Communication and Decency Act’s 230 section, which says that platforms are not legally liable for what users post on their platforms. It would create the exception specific to federal and state laws which refer to sexual content involving a minor, which isn’t as narrow or clear as it sounds. Just like SESTA, this means that private platforms are determining their own liability to civil law suits and must cater to the most conservative states’ laws.
EARN IT incentivizes private companies to surveil users in ways that would be constitutionally prohibited if done by state actors.
Websites, apps, listservs and an interactive computer service will have to cater to constantly changing state laws and the anti-porn advocates who sue companies over them or face ruinous civil liability.
How will EARN IT affect sex workers?
EARN IT expands legal liability for websites around things a huge range of things which have to do with child sexual abuse material, trafficking (any minor engaged in commercial sex), and other sexual content. While this might sound narrow, the scope is actually very broad – civil liability is extended to not just things that meet federal criminal law, but to ever changing state law in regards to CSAM.
Companies are usually more careful, rather than less, when it comes to limiting their liability. This means it is easier to remove that content and the people who share it in order to avoid a potential lawsuit down the line. EARN IT incentivizes websites to remove content related to sex off their platforms – and we already know that has impacted sex workers, as well as access to LGBTQ content and reproductive health information.
How will young people, LGBTQ folks, and other activists be impacted by this?
EARN IT deputizes companies to surveil users to a level which would be illegal if it were being done by the US government. LGBTQ youth who lack access to comprehensive, affirming sex education seek out information about gender, sexuality, and relationships on their own. Young people seeking health information from masturbation to abortion care need access to content about sexuality. All of these groups often head to the internet to address these information gaps, and all of this information is frequently blocked by parental controls or websites being overly broad about adult content.
When private companies have more responsibility to surveil communication, they also get to decide what to do with that content and who has access to it. Young people deserve access to information for safety and health in order to develop better understandings of health, consent and what is right for their lives. Private, profit-driven companies should not be making those decisions for young people.
The EARN IT Act is not new! We saw it with FOSTA-SESTA, too.
When online platforms faced similar liability under FOSTA, they cracked down all kinds of sexual content, including legal content, written by sex workers. Remember when Craigslist closed their personals section? The liability around what would constitute a knowing facilitation of trafficking was so broad that it made more legal sense to shut down that section than face potential law suits and Congressional investigations like Backpage was going through.
Sex workers and erotic laborers lost access to community, organizing and safety tools. Life for sex workers got more dangerous, just like sex workers warned.
“Harm to sex workers is not just about criminalization, it’s also about being kicked off of platforms. It’s about losing your account, it’s the way that we marginalize and surveil and control and chill behaviors. Criminalization begins long before anyone gets handcuffs put on them and extends long after anyone gets a charge.”Anonymous sex worker
In Hacking//Hustling’s research on the impact of FOSTA-SESTA, they found that 72.45% of online sex workers interviewed faced increased economic insecurity after FOSTA-SESTA. 33.8% of online sex workers interviewed reported an increase of violence from clients after FOSTA-SESTA. 23.71% reported that their housing situation changed after FOSTA-SESTA. 80.61% are now facing difficulties advertising their services, and of the chronically ill sex worker respondents. 26% reported an exacerbation of their symptoms after FOSTA-SESTA.
The overview and description in layman’s terms.
EARN IT Act S. 3538 (“Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2022”) is a bi-partisan Senate bill. EARN IT attacks Internet freedom, and digital and human rights—for everyone—under the guise of “preventing child sexual abuse material (CSAM)”. The bill incorrectly assumes that sex workers and survivors are separate communities when our lived experiences are much more complicated. EARN IT would provide legal recourse for very few survivors of CSAM and would do nothing to actually prevent CSAM. Worse, it would harm many sex workers, survivors, and sex-working survivors while providing no resources to stop child sexual abuse.
Watch the Videos about the EARN IT Act of 2020
What would EARN IT Do? (The Commission)— Mistress Blunt (@MistressBlunt) August 15, 2020
The Earn IT Act of 2020 is a bill that is short on details but long on consequences.
Follow @hackinghustling and visit https://t.co/tVDl7DNk0S for more. pic.twitter.com/w0VDkEz2Jq
Part 2!— Mistress Blunt (@MistressBlunt) August 15, 2020
In addition to the commission, the #EARNITAct creates a broad carve out of the Communication and Decency Act’s #section230, which says that platforms are not legally liable for the content posted on their websites. @hackinghustling https://t.co/mumsnD2qyk pic.twitter.com/crfBqcksPa
A copy of the full bill and a breakdown of each individual section.
Click here to read the full bill and break down of the EARN IT Act.