WASHINGTON—A provision similar to the controversial EARN IT Act that made multiple passes through the U.S. Senate is currently being floated as a possible "policy rider" to the National Defense Authorization Act (NDAA) for the fiscal year of 2024, according to a Thursday report by The Washington Post.
Despite the bill being typically meant to fund the Department of Defense and other national security programs, NDAA negotiations are popular forums for lawmakers across the political spectrum to tack on other measures. Sen. Richard Durbin, D-IL, has put forth the concept of attaching his controversial STOP CSAM Act as a rider to implement new regulations focused on targeting child sexual abuse material and other non-consensual intimate imagery on the web. The chair of the Senate Judiciary Committee and the majority whip, Sen. Durbin is regarded as the second most powerful Democrat in the Senate after majority leader Chuck Schumer, D-NY. Durbin introduced the STOP CSAM Act as a competitor to EARN IT, which was largely decried by many in both adult and the internet community at large as posing a tremendous threat to free speech while doing little to eradicate the supposedly targeted harms.
If passed into law, the STOP CSAM Act inherently weakens end-to-end encryption services and would lead digital companies to censor otherwise lawful, First Amendment-protected user content online. While the intention of the bill is certainly admirable, it would go to the extremes of sacrificing the privacy and free speech rights of law-abiding U.S. residents in order to counter CSAM and other unlawful content found on online service providers. Furthermore, laws requiring online services to report and counter CSAM and other non-consensual intimate imagery already exist. Federal statute 18 U.S.C. 2258A requires all U.S. companies to report these to the National Center for Missing and Exploited Children (NCMEC), a private foundation that receives funding from Congress and the Department of Justice. Data sent to NCMEC is collected for the CyberTipline program, which investigates and forwards cases of potential CSAM cases to local and national law enforcement agencies, like the Federal Bureau of Investigation or international organizations like Interpol. Serving as a “global clearinghouse” due to the borderless nature of websites and social platforms, most of the CSAM cases reported to the CyberTipline are from other countries.
Durbin’s bill would go further but at the expense of free speech and privacy rights. An analysis from the Electronic Frontier Foundation (EFF) finds the STOP CSAM Act would go extremely far in completely negating the process requirement of due process and a judicial determination, regardless of the material being legal or illegal. “Congress should avoid passing a law that will undermine security and free speech online,” argues the EFF. The act aggressively guts Section 230 of the Communications Decency Act of 1996, which grants civil liability immunity to the owners of web platforms if third-party users happen to abuse the platform’s terms and conditions for a variety of illegal purposes, such as the dissemination and sharing of sexual abuse imagery.
Rather, the requirements in the STOP CSAM Act would lead to legal content that is protected under the First Amendment being censored due to concerns for greater legal burdens placed on platforms. The design of Durbin’s bill is similar to the EARN IT Act, which has been proposed by Sens. Lindsey Graham, R-SC, and Richard Blumenthal, D-CT. The EARN IT Act has been blocked several times before due to the law enforcement structure this bill would implement.
A statute like this would conflict with case law, such as Ashcroft v. Free Speech Coalition. In the case of Ashcroft, the Supreme Court ruled that portions of the Child Pornography Act of 1996 violated the First Amendment because the original bill prohibited the production of pornographic films with performers who appear to be minors but are actually of legal age and are consenting to appear in adult films. The high court protected such content because the justices found it was “neither obscene nor actual child pornography” as defined by the previous case law. Other riders that lawmakers are trying to attach to the NDAA include efforts by Sens. Marco Rubio, R-FL, and Josh Hawley, R-MO, to ban the social media platform TikTok, which is a popular safe-for-work marketing funnel for adult entertainment performers and sex workers.
A variation of the 2024 National Defense Authorization Act, which was transmitted from the GOP-controlled House of Representatives, stirred a lot of controversy among members of the Senate. For example, social policy riders attached to the NDAA featured bans on reproductive health care for members of the military and restrictions on diversity training among soldiers.
Schumer called these amendments from the House extremely “toxic,” warning Republicans on the Senate floor July 18, “I certainly hope we do not see the kind of controversy that severely hindered the NDAA process over in the House. Both sides should defeat potentially toxic amendments and refrain from delaying the NDAA’s passage.”
“Extreme MAGA Republicans have chosen to hijack the historically bipartisan National Defense Authorization Act to continue attacking reproductive freedom and jamming their right-wing ideology down the throats of the American people,” argue House Minority Leader Hakeem Jeffries, D-NY, Democratic Whip Katherine Clark, D-MA, and Rep. Pete Aguilar, D-CA—the Democratic caucus chair—in a joint statement, on the occasion of the Republican majority adopting the NDAA a week ago. “House Republicans have turned what should be a meaningful investment in our men and women in uniform into an extreme and reckless legislative joyride.”
House Speaker Kevin McCarthy, R-CA, said that the passage of the House’s version of the NDAA is the GOP’s “commitment to America that we would fight for a nation that is safe.”
AVN reached out to Fight for the Future, a digital civil rights organization campaigning against bills like the STOP CSAM Act and the EARN IT Act, for comment on the NDAA controversy, but received no response by publication time.
Other groups involved in the campaign against bills like the STOP CSAM Act include the Electronic Frontier Foundation, Fight for the Future, the American Civil Liberties Union and the Woodhull Freedom Foundation.
