What is the EARN IT Act (S. 3398)?

The EARN IT Act of 2020 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 Attorney General William Barr, that would be to create online speech rules for websites, apps & listservs. The Committee’s mandate is overly broad and may lead to private companies reviewing and controlling all communication on their platform.

(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. 

EARN IT incentivizes private companies to surveil the public in ways that would be constitutionally prohibited if done by state actors.

Websites, apps, listservs and an interactive computer service will have to follow new rules or face ruinous civil liability.

How will EARN IT affect sex workers?

Both of the pieces above will expand 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 mandate is actually very broad – it includes things like rating the age-level of content (think about movie ratings), who is sharing that content to whom, and what communication around sex looks like.

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. Scanning for people engaged in commercial sex because you’re looking for minors means you’re surveilling everyone who might be engaged in commercial sex. Sex workers’ presence on a platform also increases other areas of liability, such as facilitation of prostitution – the charge that took down C*tyXG*ide. Companies are not going to take on that additional liability. EARN IT incentivizes websites to kick sex workers off their platforms.

How will EARN IT affect survivors?

Sharing our stories is one of the most powerful tools that survivors have to counter a culture that promotes and enables harassment, abuse, rape, and exploitation. Often, survivors use social media platforms, like Facebook and Twitter, to call for accountability from organizations that facilitate and enable abuse. There are also websites specifically dedicated to hosting the stories of survivors, allowing survivors to share information and strategies with each other.

Websites are able to host survivors’ stories, even when an individual or entity is implicated, because Section 230 protects websites from liability as long as those websites are not curating the content. Section 230 ensures a platform for survivors’ voices.

Threats to online free speech will further silence survivors. Survivors deserve to have access to platforms to share their stories. Survivors deserve better than EARN IT.

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.

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. 3398 (“Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2020”) 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

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.

It was written to remind whores that our lives are dispensable, we are not protected, our work is un-seen and irrelevant, to destabilize our ability to live with any degree of agency, to flaunt the murders and negligent deaths of our loved ones as a daily re-minder that the world does not mind at all watching us die and forgetting our names.

Anonymous sex worker on FOSTA-SESTA