THE EARN IT ACT – The Debate Over S.3398
Before considering the content and lawfulness of S. 3398, Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2020” or the “EARN IT Act,” please see this disclaimer: I am a mother of three small children and therefore, find it extremely difficult to emotionally detach from the declared intent of the EARN IT Act (not that anyone needs to be a parent to share this struggle).
A bi-partisan bill that was first proposed by Senators Lindsey Graham (R-SC) and Richard Blumenthal (D-CT) in March, the EARN IT Act is another item of legislation desiring to stop the proliferation of the child pornography and sexual abuse on the internet. Aimed at social media platforms, the EARN IT Act intends to require platforms such as Facebook, YouTube, and Twitter to adopt certain “Best Practices” to identify the disgusting and immoral content created and traded by pedophiles and child abusers. Similar to the 2018 Fight Online Sex Trafficking Act (FOSTA), the EARN IT Act walks a fine line between violating the U.S. Constitution’s 4th Amendment and the protection of children.
Already a polarizing item of legislation, critics on both sides of the debate are creating a false duality: Protect citizens from unlawful privacy violations under the 4th Amendment OR stop child sexual abuse. An easy trap to fall into, the arguments for and against the EARN IT Act are generally shaped as follows.
ARGUMENTS FOR THE EARN IT ACT:
The acronym “EARN IT” is not just literal, it is also figurative. In 1996, Section 230 of the Communications Decency Act granted social media platforms certain immunity for the content posted by their users. While users are legally responsible for their content (whether child pornography or hate crimes), the platform is not legally responsible.
The EARN IT Act strongly encourages these same platforms to help stop child predators from abusing social media's Section 230 immunity in furtherance of crimes against children. In short, apply and institute EARN IT Act best practices or kiss the Section 230 immunity good-bye. Supporters of the EARN IT Act want technology giants to voluntarily prioritize the safety of children through reasonable regulations aimed at identifying criminals.
ARGUMENTS AGAINST THE EARN IT ACT:
According to Human Rights Watch: “The EARN IT Act … force[s] companies to choose between managing users’ expression based on broadly interpretable standards or face increased liability. To avoid criminal prosecution, companies would have a strong incentive to adopt practices for restricting content that would sweep more broadly than the illegal content.”
Drafters of the EARN IT Act carefully call the adoption of the EARN IT Act best practices “voluntary” to avoid alleged 4th Amendment violations. As any Law & Order lover knows, the 4th Amendment protects Americans against unreasonable searches and seizures by the government – ensuring every citizen’s right to privacy from government intrusion. For the government to question any citizen’s property, communications, and choices, it must have probable cause to suspect a crime and obtain a search warrant.
However, private entities like Facebook and Twitter are not government agencies (conspiracy theorists: just follow the logic here please) and therefore, do not require a warrant to read its user communications. Now, if the government tasks or hires these private entities to read user communications, then the private entities become “state actors” and subject to 4th Amendment procedures just like any other law enforcement entity. And, if the government, a law enforcement agency, or a private entity in “state actor” status violates the 4th Amendment and obtains private information absent probable cause, such information is excluded from evidence in a court of law and is called “tainted.”
So, to avoid “state actor” status, the EARN IT Act makes its desired regulations optional. Facebook can "opt" not to implement the desired best practices, but it loses its Section 230 immunity. Alternatively, Facebook can "opt" to institute the EARN IT Act best practices, keep its immunity, and continue its warrant-free data mining of user communications. Critics of the EARN IT Act believe the choices it poses permit the government to spy on social media platform users without probable cause.
Decent attorneys can advocate the flip sides of any issue. However, there is another, albeit abnormal, approach to this matter: pull a 2008, Hank Paulson-style round-up.
On Friday, September 12, 2008, former Secretary of Treasury, Henry “Hank” Paulson, unofficially ordered the CEOs and leaders of nine major investment banks into a conference room at the Federal Reserve in New York City and asked them to save the U.S.A. from almost certain financial collapse. For the next 72 hours, these individuals worked to prevent the bankruptcy of a competitor, Lehman Brothers. An interesting account can be found in this Fortune Article. While Sec. Paulson’s round-up ultimately failed and the U.S.A. suffered a devastating economic depression, the approach itself is noteworthy. Thinking that perhaps government leaders alone could not resolve the problem facing the country, Sec. Paulson searched for an alternate approach from private, subject-matter experts.
The problem presented by the EARN IT Act should be solved by those it seeks to regulate. While the EARN IT Act proposes the establishment of a “commission” to supervise the best practices, the commission is primarily populated by government employees. Without casting any dispersions on those in public service, the proposed commission seems to lack input from those who guidance is most needed.
Consider this third option: scratch S.3398 and force the social media platforms to solve the problem. As the architects of communication platforms, they are in the best position to decipher which decryption methods can accommodate the current technological tools used to combat the spread of child pornography without granting the government any additional surveillance tools.
Any opinions stated herein are my own and do not represent those of any other individual or entity.