Why the EARN IT Act Matters

By Aron Solomon

One of the most polarizing bills in recent memory, the Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2022 (known as the EARN IT Act) was voted on by the Senate Judiciary Committee (SJC) today.

The result was a win for the EARN IT Act, which today made it through what is known as a “markup hearing” today and now proceeds to a vote on the Senate floor. 

Aimed at protecting children from online abuse, particularly the prevention of child sex abuse material, the EARN IT Act has broad public support. But a lot of this support comes from people who have never read the Act, which would have wide-ranging effects on free speech.

A group of activists, writers, and security experts sent a letter the day before the vote to the SJC, arguing that the bill actually makes it significantly harder to protect children from online abuse while threatening free speech and encryption. 

The specific concerns, as outlined last week by the Electronic Frontier Foundation (EFF), stem from the power the EARN IT Act will accord to every state or U.S. territory to regulate the Internet. The states will be able to get around 47 U.S.C. § 230, a Provision of the Communication Decency Act, the most important law in the nation protecting free speech on the Internet. Through the vehicle of the EARN IT ACT, the states can essentially pass any kind of law they want to hold private companies liable as long as they can link these new laws to online child abuse. 

Lauren Scardella, a New Jersey lawyer, reminds us that, over the years, “Section 230 is what has allowed us all to post content on sites – our videos on YouTube, our Google reviews, our public posts on Facebook. So if we move away from Section 230 and stop protecting sites such as these from what we post there, we simply have a different Internet.”

As the EFF points out, the goal here is simple – to punish companies that encrypt or enable encryption:

This includes messaging services like WhatsApp, Signal, and iMessage, as well as web hosts like Amazon Web Services. We know that EARN IT aims to spread the use of tools to scan against law enforcement databases because the bill’s sponsors have said so. In a “Myths and Facts” document distributed by the bill’s proponents, it even names the government-approved software that they could mandate (PhotoDNA, a Microsoft program with an API that reports directly to law enforcement databases).

While the EARN IT Act’s green light on scanning all online messages will affect not only our online freedoms but many online industries, none will be more devastaed than a group whose livelihood has been dramatically impacted since the onset of the pandemic in early 2022 – those who create content involving sex and sex workers themselves. What the EARN IT Act wil mean in practice for this group is not only a widespread removal and banning (“deplatforming”) of sex workers and whose who earn a living from sex-related cotent even from mainstream social media sites. 

There will be increased surveillance of private messaging (even from apps such as Telegram and Signal) and significantly fewer options for those who create content in what is known as the adult fan and clip space. Overall adult content will also surely be delisted from Google

Perhaps the most significant irony and problem in all of this is that the wording of the EARN IT Act won’t actually stop the distribution of child sex abuse material but would instead empower prosecution of sites whose mission is working to fight it. From a practical perspective, given that the EARN IT Act encourages litigation as a means of censorship, any group that works for freedom of expression in sex work or legal pornigraphy would be in the corsshairs of innumerable potential plaintiffs thanks to this new law.

The Google deplatforming issue is a remarkably important one for those concerned with Internet freedoms, yet one that has not received enough time and attention in discussions leading up to Thursday’s Senate Judiciary Committee vote. Deplatforming should terrify people because in practice, it’s going to become a legal content blocker. While it has always been your responsibility as the end user to determine, through your use of settings, what does and doesn’t appear in your searches, the EARN IT Act has the potential to create a far different online reality for us, completely changing our search results. 

Today’s result is seen as a loss for privacy and human rights groups, yet new life for a bill that was close to dead a year ago. First introduced in 2020, it was weakened in committee that year and almost perished in the full Senate. But, as we remember so well from our lost youth, bills can often be resilient and even those as deeply divisive as the EARN IT Act often do become the law of the land.

About Aron Solomon

Aron Solomon, JD, is the Chief Legal Analyst for Esquire Digital and the Editor of Today’s Esquire. He has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world. Aron has been featured in CBS NewsCNBCUSA TodayESPN,  TechCrunchThe HillBuzzFeed, FortuneVenture BeatThe IndependentFortune ChinaYahoo!, ABA Journal, Law.com, The Boston GlobeNewsBreak, and many other leading publications.