LOS ANGELES—The Electronic Frontier Foundation, the 30-year-old advocacy group that has been a pioneer in defending digital civil liberties, sent a letter this week to the United States Senate, opposing the controversial EARN IT Act — which the EFF says will “result in online censorship that will disproportionately impact marginalized communities, will jeopardize access to encrypted services, and will place at risk the prosecutions of the very abusers the law is meant to catch.”
The “Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2020,” or EARN IT, is designed to roll back protections for online platforms under Section 230 of the 1996 Communications Decency Act. Section 230 is widely considered the “First Amendment of the Internet.” As AVN reported last month, the law is not only the backbone of open online communications, but for adult content online as well.
“Efforts to roll back Section 230 protection will have a significant adverse impact on the adult entertainment industry if passed,” First Amendment attorney Lawrence Walters told AVN in August. “Any change to Section 230 could result in restrictive content moderation rules or elimination of the platforms themselves.”
Platforms would be required to “earn” the protections currently afforded by Section 230 by following a set of vaguely defined “best practices” to prevent illegal activities, specifically sex trafficking and Child Sex Abuse Material (CSAM), if EARN IT passes.
Under EARN IT, “states will be free to impose any liability standard they please on platforms, including holding platforms liable for CSAM they did not actually know was present on their services,” EFF warned in its letter to the Senate. “Nothing in the bill would prevent a state from passing a law in the future holding a provider criminally responsible under a ‘reckless’ or ‘negligence’ standard.”
In other words, under EARN IT, state governments could punish online platforms for almost anything that could be broadly interpreted as “CSAM” or “Sex trafficking,” even bringing criminal charges against site operators. The dangers for the adult industry are clear if states are allowed to define a wide range of sexual content as promoting “sex trafficking.”
But sex worker advocacy groups have also warned that the EARN IT law could lead to increased surveillance of workers in the sex industry. EFF also addresses the surveillance threat in its letter to the Senate.
“End-to-end encryption ensures the privacy and security of sensitive communications such that only the sender and receiver can view them,” the group wrote. “But the EARN IT Act threatens to undermine and disincentivize providers from providing strong encryption.”
The EFF compares EARN IT to a previous “sex trafficking” law, FOSTA/SESTA, which is the only law so far passed that actually curtails Section 230 protections, in cases when sites are deemed to promote online sex trafficking. But that law had the opposite effect from its stated intention.
“Instead, it has forced sex workers, whether voluntarily engaging in sex work or forced into sex trafficking against their wills, offline and into harm’s way,” EFF wrote. “It has also chilled their online expression generally, including the sharing of health and safety information, and speech wholly unrelated to sex work.”
In the letter, EFF urges the Senate not to “fast track” the EARN IT bill — and to vote it down if or when it finally comes before the entire Senate. The bill passed through the Judiciary Commitee in July.
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