Opponents Debate SESTA Legacy as Senate Preps Earn It Act
Opponents are debating the legacy of a 2018 anti-sex trafficking law as the Senate prepares to take up a similar Section 230-related measure in the Eliminating Abusive and Rampant Neglect of Interactive Technologies Act (see 2202100071). Courts, meanwhile, continue to iron out case law on Communications Decency Act liability protections.
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The Senate Judiciary Committee passed the Earn It Act (S-3538) by voice vote earlier this month. Much of the debate concerns the potential for the bill to undermine end-to-end encryption and how platforms would be required to take a more active role in detecting and removing child sexual abuse material (CSAM).
Industry groups aligned with advocates like the Internet Society, the Center for Democracy & Technology, Public Knowledge, Access Now and the American Civil Liberties Union (see 2202090050), given the potential impact on encryption and censorship. The National Center for Missing and Exploited Children (NCMEC), National Center on Sexual Exploitation (NCOSE) and other victim advocates say the Earn It Act would be another incremental improvement, extending legal protections just like the 2018 Stop Enabling Sex Traffickers-Allow States and Victims to Fight Online Sex Trafficking (SESTA-FOSTA) package.
The Earn It Act is a well-intended bill that will do more harm than good, said PEN America Washington Director Nadine Farid Johnson. SESTA-FOSTA was meant to stop human trafficking, but it ultimately puts victims at greater risk, because activity has moved further into the dark web, she said. PEN America signed the Earn It Act opposition letter with CDT, PK and others.
Illegal websites might have operated more in the dark after enactment, but many are coming back into the open, said NCOSE Senior Legal Counsel Dani Pinter. Takedown requests, even for child pornography on platforms like Reddit, are largely ignored, she said. The impact of SESTA-FOSTA remains unclear while courts continue to define the knowledge standard in these cases, she said. There’s a mixed bag of Section 230 decisions post-SESTA-FOSTA, she said.
The U.S. District Court in Santa Ana, California, decided a case in 2021 in which the plaintiffs argued Reddit failed to remove child porn on the website. The court said Reddit had Section 230 immunity, despite FOSTA-SESTA, in docket 8:21-cv-00768, Doe v. Reddit (in Pacer). A more positive case for survivors was Doe v. Twitter (docket 3:21-cv-00485), where the U.S. District Court in San Francisco said survivors had an avenue of relief under SESTA-FOSTA. Two minors in that case tried to have videos of them having sex removed from Twitter. The court allowed the plaintiffs to move forward with trafficking claims but rejected claims based on distribution of child pornography.
SESTA-FOSTA gives victims an avenue to pursue civil claims against tech platforms failing to remove material, said NCMEC General Counsel Yiota Souras. The full legal impact hasn’t been realized, given COVID-19 delays, she said.
The Earn It Act encryption issue is a “red herring,” said Souras. The bill text includes a section saying a platform won’t be held liable simply because it’s using full end-to-end encryption, she noted. The key is that misuse of encryption would lead to liability for illegal material, said Sen. Richard Blumenthal, D-Conn., the lead Democratic sponsor, during markup.
It’s unclear whether the legislation would require platforms to “scan” everything on their services for CSAM or risk losing liability protections, said Internet Society Senior Director-Online Trust Jeff Wilbur. If platforms must dig into encrypted material, “you’re effectively removing that encryption,” he said: “That’s the real concern.” Another question is whether ISPs would be responsible for detecting encrypted CSAM when web hosting, he said: Opponents don't want a “chain of unintended consequences.”
NCMEC and NCOSE said their organizations will continue to push the bill forward. The office for Senate Majority Leader Chuck Schumer, D-N.Y., didn’t comment about potential floor time.