I’m not much of an expert on most political matters but I do have a question about this EARN IT act. From what little I’ve read of it, it seems like a very bad law that would do a lot to undermine this nice Internet thing we’ve got. For my purposes as a layperson, all I really personally need to know is that the EFF and the ACLU both oppose it. But AFP also opposes it, which seems like strange allies, but I suspect is mostly an accurate understanding that it would harm online commerce. (But on the upside, Amazon would lose out?)
Anyway, from what little I’ve read it seems to me it also has a problem that isn’t being talked about at the moment. I’m not entirely sure this concern is one of this proposed laws’ many problems, but I wanted to throw it out there to see if the wider community thought so too. And either way, it gives me a pretext to talk about it. I’ll offer some speculations as to why it’s not addressed directly in the articles after I have talked about my main point, but for the purposes of my concern, that’s a side-issue. On to the main point.
I won’t spend long talking about the law, as others have written far more eloquently about it than I ever could in a short period of time, but I’ll try to provide a brief (and slightly inaccurate) description for my purposes. The law intends to catch/remove child sex abuse material and the people who produce/distribute it on the Internet. It does this by holding a company criminally responsible for hosting/transmitting offensive material with no regard for whether they have awareness of the material. It would endanger companies of criminal prosecution unless they monitored users’ behavior and reported violations.
The potential issue I noticed? The main enforcement mechanism also relies on- and encourages- states to write their own definitions for what constitutes a violation. I am not terribly confident in certain states’ attorney generals and politicians to properly understand and identify just what constitutes material that is harmful to children. A passing familiarity with historic LGBTQ issues ought to be more than enough to warrant that concern. Many people still promote the belief that merely exposing children to representative media is harmful. It is not.
It seems like it would only take one state to pass a law declaring that LGBTQ-adjacent (or sex-ed) material being shown to a child is a criminal offense for serious consequences to result. Companies are risk averse, so they could easily be coerced to censor such material broadly if it avoids consequences. I don’t know if such a law would pass judicial review, but considering that it’s apparently okay to circumvent judicial review with state law and an army of bigots, I’m not entirely sure we could rely on the courts to stop ridiculously unconstitutional laws from passing.
Also, this is unrelated but I feel that we ought to be generally more skeptical of laws that expand “states’ rights” or shift enforcement responsibilities for federal laws (especially about the Internet) to the states. Just a hunch of a shifting political strategy in the wake of the recent Texas abortion ban.
Now for my (possibly) baseless speculation as to why this angle isn’t being mentioned in the sources I read: The law is bad enough that both parties (or anyone learned on it) should vehemently reject it. As I stated before, it involves issues with censorship, privacy and commerce and seems like it could effectively destroy a lot of the functionality of the Internet. The people mostly talking about this right now might just be adopting the most ideologically-neutral sounding approach as their basis to criticize it. In the hopes that people across both parties as well as ideological middle-grounders will all read their objections and speak against it. And as we all should know by now, there are only two identities when it comes to gender and sexuality. Cisgender-heterosexual and ‘political’. (This is not to be taken as a condemnation of any of these pieces.)
Again, I can’t parse the legalese. I’d like to know if this concern is valid and this particular excerpt I’ve read makes me suspect it’s valid:
Making internet companies potentially criminally liable based on a patchwork of 50+ state laws opens them up to all sorts of incredible mischief, especially when you're dealing with state AGs whose incentives are, well, suspect.
CDT has detailed examples of conflicting state laws and how they would make it nearly impossible to comply:
For instance, in Arkansas it is illegal for an “owner, operator or employee” of online services to “knowingly fail” to report instances of child pornography on their network to “a law enforcement official.” Because this law has apparently never been enforced (it was passed in 2001, five years after Section 230, which preempts it) it is not clear what “knowingly” means. Does the offender have to know that a specific subscriber transmitted a specific piece of CSAM? Or is it a much broader concept of “knowledge,” for example that some CSAM is present somewhere on their network? To whom, exactly, do these providers report CSAM? How would this law apply to service providers located outside of Arkansas, but which may have users in Arkansas?
Maryland enables law enforcement to request online services take down alleged CSAM, and if the service provider doesn’t comply, law enforcement can obtain a court order to have it taken down without the court confirming the content is actually CSAM. Some states simply have incredibly broad statutes criminalizing the transmission of CSAM, such as Florida: “any person in this state who knew or reasonably should have known that he or she was transmitting child pornography . . . to another person in this state or in another jurisdiction commits a felony of the third degree.”
Finally, some states have laws that prohibit the distribution of “obscene” materials to minors without requiring knowledge of the character of the material or to whom the material is transmitted. For example, Georgia makes it illegal “to make available [obscene material] by allowing access to information stored in a computer” if the defendant has a “good reason to know the character of the material” and “should have known” the user is a minor. State prosecutors could argue that these laws are “regarding” the “solicitation” of CSAM on the theory that many abusers send obscene material to their child victims as part of their abuse.
So if this law passes, and comes to the harms its detractors at the EFF and ACLU are worried about? I’ll remember the bipartisans who supported it and I hope you will too.