The EARN IT Act (S. 3398) a proposed bill which aims to address child sexual abuse online by forcing tech companies to engage in a level of surveillance that would be unconstitutional if it were law enforcement under the threat of expanded liability – the exact same logic behind FOSTA/SESTA. It would do this by creating a commission of 19 members of law enforcement, tech, and service providers specific to child abuse to set government control of online speech. There will be no one representing the needs of sex workers, marginalized communities, or harm reduction. Tech experts believe it is a thinly veiled attempt to mandate encryption backdoors.
Below are some resources on the EARN IT Act, and why we’re saying NO to SESTA 2.0.
On March 25, 2020 Hacking//Hustling did a Community Call to discuss the act and its potential impact. You can Watch the Recording here or read the transcript below.
Download the two-pager developed by Hacking//Hustling which should be quick and easy to print.
This is a “section-by-section” of the bill, which goes through the text and summarizes each part, hopefully making it more accessible to see what’s in there.
Transcript: EARN IT Bill Community Call, March 25, 2020
What is the EARN IT Act?
KATE: Sure. So the EARN IT Act is a bill that was just introduced only a couple weeks ago in the Senate. And what it does overall is kind of build on a lot of the conversations that have been being had around what oversight of online platforms look like. And because so much of this conversation has really been focused not on the myriad types of abuse that is happening, it is really narrowly focused on things like child pornography, trafficking in the sex trade exclusively of minors. This bill is really geared towards expanding liability as a way to attack what are much more widespread, complicated and nuanced issues.
Much like FOSTA/SESTA. We’re — as a culture not really able to tackle a lot of the root causes, a lot of the issues, a lot of the reasons why these things happen. And instead, what this bill does, and it was drafted by some of the same people that brought you FOSTA/SESTA is to build on that idea that if you just expand liability for platforms, if you just ask private actors to become police and judge and jury, that’s the way to tackle these problems.
We know that it’s ineffective, we know that it captures a lot more people than the people we’re after, and we know that it actually doesn’t prevent it.
And so we are going to break down a little bit of how it does it because it’s a little more nuanced and complicated than FOSTA/SESTA was, but that’s really what this bill is trying to do. It’s trying to look at what a really serious and complicated issue that has a lot of pieces to it, but has not been tackled effectively in 20 years since the passage of the Trafficking Victims Protection Act, and instead simply expands liability, expands the number of police actors to say, well, we’re just capture everyone and try to root out the people that we’re really going for and really not caring about the collateral damage that we leave in its wake.
So Kendra. Do you want to break it down a little more?
KENDRA: So one of our initial conversations about this bills was actually that it’s often quite difficult to explain it. And that’s actually sort of a feature of the bill and not an about — because a lot of what it’s actually trying to do is a little bit unclear and it’s left up to an elected commission of 19 people.
So the first thing to know is that the Attorney General Barr, William Barr, who has expressed a public interest in getting rid of and end encryption would be the head of a 19-person committee or commission, predominantly law enforcement, tech, members of the FTC, FCC, the Federal Trade Commission, federal communications commission, that sort of those sorts of groups and that 19-person commission is sort of given this super broad mandate of what all the things that they’re expected to consider when coming up with best practices for eliminating child exploitation material.
And those best practices are supposed to cover, I don’t know, it honestly kind of amounts to basically everything, but prevention, identification, reporting of and retention metadata and content, training of websites E-trading and sort of parental controls.
And a lot of this stuff is, you know, those — the list of topics is geared at sexual material about minors or child porn. However, it’s not specific to it and it doesn’t restrict the commission’s oversight to only those things.
So when you hear people talking about EARN IT and potential threats to encryption, even though the word encryption is not actually in the bill text, the reason people are worried about the potential effects of EARN IT upon encryption is because the best — the mandate of the commission to create these best practices includes a lot of things that — where folks may think that undermining encryption will serve those purposes.
Those best practices in the most — in the newest draft of the bill are then turned into law. So that’s done through this fast-tracking procedure. So this is not, you know, if you remember your school house rock, this is not that. The — it’s not just the bill. It actually, I think, if I recall correctly follows the path that’s usually restricted for, like ratifications of treaties. So it’s a fast-track procedure with no oversight and no debate. So the goal here, under this bill basically takes these best practices from the commission headed by the attorney general, and then move it is along so congress passes them really quickly.
And then how do you — okay, you have these best practices for theoretically ending the availability of child exploitation material online how do you get online platforms to follow them?
Well, that’s where the EARN IT Act invokes Section 230, which is the same section — the same law that was amended by FOSTA, and it requires that ICSs, which is interactive computer services, which basically covers pretty much, think almost everything on the Internet. If it’s not a static HTML page, like flashback to, you know, 1985, it’s probably an interactive computer service. Can you interact with anyone on it? Then it counts. So we’re talking about stuff like chat rooms, Facebook, GIRA (phonetic), web tickets and pretty much everything that you do online.
And the — those platforms are put in a position where they get a choice. They can either follow the best practices that the commission sets up and retain their Section 230 protections for all kinds of materials including child exploitation material, or not follow those and sort of take their chances at much more significant civil liability for all kinds of online sexual materials.
So in effect, what the bill does is by creating these best practices it can have a very, very broad mandate. It makes it difficult for — it puts online service providers in a position where they’re going to either have to significantly overpolice or comply with the best practices, which may include removing end-to-end encryption.
KATE: So essentially, just so folks know we’re going to have a slide after this for question, so if we don’t hit your question totally feel free to ask again, we promise we’re not ignoring it.
And Blunt it writing down all the questions. Thank you for that. So essentially what we’re talking about is this 19-person commission, and it is basically — thank you.
KENDRA: Sorry. I got rid of the weird yellow line.
KATE: So this 19-person commission which is headed by the attorney general, who is not — is someone who has expressly said they’re interested in ending encryption for not just this, but for a variety of different things just in general does not want end-to-end encryption.
They’re going to head this 19-person commission, and this 19-person commission is going to come up with a list of best practices that are going to be the standard for websites. Websites — websites, apps, list serves etc., anybody that they define as this being applied to is going to have to certify themselves against this or else they’re going to vastly open themselves to liability for civil suits. And we know how this is going to go.
And we know how this is going to go because just like FOSTA/SESTA we’ve seen this tactic before, anti trafficking is not that creative, and so we already know you know what this is going to look like. This is going to look like red flag indicators, this is going to look like requirements for the information that they have to retain, where they put that information and who gets to see that information. And the thing about it is the reason why we keep going back to end-to-end encryption, is not just because Attorney General Barr has said he wants to end encryption, but also because a lot of the things that they’re already talking about are not possible to retain or to access or to view or to scan if there is an encrypted service. So even if it says — even if it doesn’t expressly say you have to end — you have to remove end-to end encryption, platforms are going to have to do that in order to meet these standards and be able to do this.
And a lot of this came out of the conversations about, you know, there is an organization that says, you know, we’re getting — we want tips and we want red flags. And we are concerned that platforms like Facebook have this end-to-end encryption so we’re going to lose a lot of the tips. So what we want you to do is scan things and then send red flags over and we’re going to tell you how much information is there. So that’s kind of the background of where this bill came from.
And where have we seen this before? In a couple of places. So in 2014 there was a group that came together that is called FINCEN is the short acronym and what they did was in 2014 they released guidelines which were about red flag indicators looking for cyber crimes in finance and in banking. And a lot of those red flag indicators, a number of them are very difficult, but a number of them are really specific to commercial sects. Indicators include things like how much you’re depositing in cash but also just fact that you’re advertising on a site that’s known for adult advertisements.
And what have we known to happen since then is that sex workers are constantly kicked off cash payment apps, kicked off losing their bank accounts, even just straight up independent debit accounts. We know that cam sites and porn sites frequently lose access to those platforms, sometimes making it impossible for them to even pay their employees. So we already know that these kind of indicators don’t do well for folks in the sex trade because it’s this idea of if you capture everyone, then we will adjust dive in, but the thing about the sex trade and the thing about a lot of these is once you have these private actors making decisions about their liability, not just for traffics, but also for things like money laundering, liability as far as, you know, whatever else they might deem people who operate in the adult industry to be participating in, they just might say, we don’t want the liability in general and kick them off.
Can you hit, Kendra. Thank you.
Also we see the exact same thing we’re talking about transportation and hotels. Everyone has been seeing that Marriott is training its front line staff to look for trafficking. And what are those red flag indicators that are — where, you know, groups that say they are staunchly anti trafficking came up with, it’s privacy signs on the door, it’s having two cell phones, it’s asking for extra towels. And so they were using this saying we are screening for trafficking, and we’re using these indicators that you have determined to decide what we want to do with people so allowing private actors to again really control and damage the lives of people in the sex trade.
Next slide, or next thing.
Then of course SESTA/FOSTA, and just like SESTA/FOSTA, this is about expanding liability and saying now you’re responsible, you get to decide what to do. And so because we’re going to be talking about red flag indicators, yes they say it’s about youth and child sexual abuse material and trafficking, but think about a private company monitoring all of those, what do you think those red flag indicators are going to be.? They’re going to be focused on youth and that means that young people trying to access sexual health information are going to be more at risk to be — to get red flags. Think about what it means to be underage and trying to access information about abortion, think about what it means to be young and LGBTQ trying to talk about what gender identity means with someone who is older when you’re clearly not going to get that kind of information in a lot of different places and maybe you want to did it anonymously.
So when we’re talking about this, we’ve to think through what have these folks already done? What are the patterns that they have already perpetuated and who has that harmed and who else do we think it’s going to harm? And so what you’re talking about is Internet platforms but also list serves, websites, apps. It even covers intranet, but I don’t know who uses intranet.
Reviewing all images, reviewing communication, looking for what can easily be automated because this is so much information you’re not going to have individuals going through. And so when we’re talking about all of this it’s going to be bots red flagging things, pulling them out, do you really want private companies to be able to make the decision on what to do with that information? About who gets access to that information, about how they understand their liability for that information, if you’re someone like PayPal, if you just want to be an asshole about that information? That’s what we have to think about when we’re talking about this.
And it’s not that we don’t — you know, we have — while the bill is really broad, while we might not necessarily know some of the details, we know the patterns that have been happening for the last several years, and we also know who is disproportionately impacted by all of these.
BLUNT: So Daly are you here, the next slide.
DALY: Hi everyone, sorry I came in a little late. I’m Daly. I work for the Electronic Frontier Foundation. I’m the a staff technologist there. (Inaudible) I am here on my own volition though, not on EFF’s authority.
So the EFF is, in case you don’t know it’s the Electronic Frontier Foundation. It’s a nonprofit law firm that focuses in digital civil liberties. We spearheaded many different cases that are related to CDA 230, an unofficial tag line goes whenever we take on any of these campaigns is that when you go online we make sure your rights go with you. So as you can imagine CDA 230 is very important to us and any bill that weaken it is, we will fight both on activism and on legislation.
Could you go back? Thank you.
KENDRA: Technology lawyer means I can’t operate this.
DALY: Sorry. I can barely zoom either. Whatever this is, Google slides.
So as Kate put it out earlier we’ve seen similar legislation come through to weaken 230 and that was SESTA/FOSTA EFF has fought against that, we’ve sued against it to try to delegitimize it in the phase of the law as a First Amendment issue still we’re working there through that. We are doing the same thing with this particular one.
And so through filing, like our own litigations and amicus briefs on behalf of others, we are continuously highlights encryption as a necessary utility for digital citizens to a free and open Internet it’s a phrase we often use.
But specifically how encryption is intrinsically tied to First Amendment issues for everyone online.
Next slide, please.
So recently a few of the attorneys that I work with and I helped proofread a little bit, at least the tech side of it, we filed a letter to the Senate judiciary describing how and why the EARN IT Act is violating the First Amendment, and I think Kendra mentioned this earlier, although the EARN IT Act never actually uses the word encryption, when Blumenthal — Senator Blumenthal is very hard on that, reiterating why are you bringing up encryption, it’s not about encryption, I haven’t said encryption, we we’ve used the opportunity to describe exactly how this legislation undermines encryption because it’s demanding, like clear text authority or clear text view of every sort of transmission that wants to be read by the committees that get chosen.
There are some links there, I recommend you look into, specifically to the — the letter to the Senate judiciary committee and then another letter describing — or another article on our blog describing specifically how this is an encryption and First Amendment issue and why it is just another attack on 230 in general.
KENDRA: So you get me again, now that I’m unmuted. I’m going to talk sort of more about why this is a problem for speech online generally. With a particular eye towards how it will affect sex workers but we’ll talk specifically more about how it affects some sex workers on the next slide.
So, you know, one backgrounds thing to note as we sort of talk about the EARN IT Act is that online platform can say already be prosecuted under federal criminal law for for child sexual abuse materials. So, you know, Attorney General Barr, if he wanted to could bring prosecutions against any of the platforms that he thinks aren’t handling child sexual abuse material appropriately. He hasn’t.
What the bill actually — this bill actually changes has been making these platforms potentially liable under state, criminal, law and state civil law as well as state federal law. — or as well as federal civil law. State federal law is a little bit of a contradiction.
So what it means to be liable under civil law is that individuals can bring lawsuits, which sounds great until you realize that often the individuals who are bringing the lawsuits against these companies are not necessarily thinking about sort of a holistic picture of enforcement and prevention but maybe sort of thinking about sort of trying to get a settlement in order to finance — finance a lawyer’s practice.
So what that means is that in effect platforms have no choice they have to comply with the best practices, which is disabling encryption or backdooring it or face significant liability including those potentially frivolous lawsuits. We don’t know what the best practices are going to be yet. As Daly said, we have some guess just based on the content of the — the way this bill has been suggested, the things that the best practice commission — creation commission is supposed to consider, but we can’t say for sure exactly what they’re going to contain.
They could and probably are likely to restrict constitutionally protected speech or sort of disallow or discourage end to ends end encryption, and we don’t quite know yet. That’s why we’re not saying the word encryption is kind of a red herring.
Even if platforms don’t comply with the best practices and if they choose not it disable end-to-end encryption or make restrictions for constitutionally protected speech they’re likely going to remove content in order to reduce their potential liability. This is exactly what we saw with FOSTA/SESTA, which is that platforms, large Internet platforms or even smaller — smaller online platforms will make drastic changes to their own internal moderation policies in order to reduce their risk of litigation or to not be seen as not doing something.
So, you know, what’s happened in the government at that context is widespread removal of all sexual content, including stuff that’s not sexual content, not adult content written by sex worker or people who are profiled as sex workers, even if it has nothing it do with sex whatsoever.
And we also suspect that what we’ll see is major online platforms increasing scanning for sexual content, as well as Kate mentioned, you know, the red — red flags, trying to detect particular partners that may be associated with sex workers or child sex trafficking in order to — in order to crackdown on them, and then profiling or excluding sex workers how they use it.
What is CDA 230?
KENDRA: So it’s CDA230 or Section 230 is a law that means that online platforms can’t be held liable for the speech of their users. And what that means in practice just as an example, right, if you — if someone posted a defamatory review about a local restaurant on Yelp saying they got food poisoning, it was terrible, they saw rats where wherever everywhere, and they didn’t in fact see those things you can sue the person who wrote that review but the can’t sue Yelp because we don’t think Yelp has any particular way of knowing whether that review is accurate.
The same thing applies to generally speech online. And it’s a sort of cornerstone of, first, free speech on the Internet because it keeps platforms being held liable for things they have no reason to know about or speech that they have no reason to know if it’s true, accurate, or if it could get them in trouble.
So what FOSTA did and what the earn it act does was amend Section 230 to remove some of that immunity, which results in platforms often overcompensating by removing all kinds of speech that might possibly trigger liability, which is much, much more broad than what the Constitution — what the government might be able to remove constitutionally.
BLUNT: So now we’re going to talk a little bit about why this is a problem for sex workers. So what this act would do is create a new threat to anyone who would be a target of the Department of Justice under the guise of protecting children. So FOSTA/SESTA was signed into law under the guise of stopping human trafficking and we saw a very similar tactic happening here with the EARN IT bill saying that it’s to protect children without actually doing to provide meaningful support to children who might be at risk of exploitation.
But these rules could easily be used to limit speech about abortion, queer people, harm reduction methods, criticism of law enforcement, trading sex and so on. There’s so many ways that this could be applied overly broadly.
Why is Encryption Important for Sex Workers?
SX: Great. So without encryption with clients and community, we are at higher risk of law enforcement, we can just kind of going over that but pretty much, like, we’re — sex workers need end-to-end encryption, we need to be able to have privacy and be able to communicate privately, whether it just be our own personal thoughts or logistical planning, things like that, so to not have ends to end encryption, will not only jeopardize sex workers but something that I always bring up is I work on the intersection of sex work and sex tech this would be detriment to the sex technology as a whole.
Simply being without being able to talk about our sexuality and these specific topics about encryption is all honestly a violation of our human rights when it comes to digital space, right? So yeah, Blunt, do you want to go to the next one?
BLUNT: Sure. So these communications will be more closely monitored by private companies. And I was seeing in the — in the chat someone was saying that Facebook is already moderating the chats and you can’t send minivids links. So the way that we will be monitored and policed will be detrimental to our access to these online spaces, our ability to make money, our ability to stay on these platforms that everyone else uses.
And we can talk a little bit more about the way that this would impact the sex worker community when we open it up to questions because I know that there’s a lot of community members on the call as well.
BLUNT: I’m going to read Hamid’s question, Hamid from LAPD Stop Spying says, “Besides the attack on sex workers and encryption, there is clearly another assault and criminalization of youth under the guise of youth and community safety. Historically youth have been criminalized through the creation of gang databases and gang injunctions and increasingly the language of extremism and radicalization is being normalized behavioral surveillance is central to this level of criminalization. And to add see something, say something into the mix, there may be so many do-gooders who will be snitching.”
KENDRA: Just to add briefly to that, the, you know, one of the sort of problems that always happens in this space is the sort of if you build it they will come idea is that a lot of these surveillance apparatus as I know folks like LAPD Stop Spying have written about are developed for one purpose and then sort of used more broadly to sort of, as other, you know, and more expansively against other marginalized community what is might first be deployed for child exploitation material gets deployed more generally against sex workers if that isn’t already happening and then sort of gets deployed more broadly after that.
So there is a question about its impacts on community organizing.
KATE: I think it’s also important it remember that under FOSTA/SESTA, there was an expansion of criminal law for all owners and managers of interactive computer services. So all of these platforms for facilitation of prostitution. So even if this this doesn’t explicitly talk about prostitution, what it is built upon is the fact that if they are aware that they are facilitating prostitution, it could get owners and managers of those list search websites apps up to 25 years in prison. So it not only has the liability around 230, it also has the liability that was expanded two years ago on FOSTA/SESTA. So you’re asking these platforms to scan this information, to scan for information that would be related to commercial sects, because trafficking is defined as both engagement in the — in commercial sex, but also engagement of commercial sex of anyone under 18, so they’re going to be monitoring commercial sex more broadly. So even if it is an adult you’re asking them to scan for —
BLUNT: Kate, if you still hear us, you froze I think we’re going to move on it another question because Kate has frozen.
So someone in the comments mentioned that this would also affect journalists, I don’t know if someone on the call wants to talk briefly about that. We have questions about how it affects sex tech explicitly and how it would affect journalists communicating with sources.
How would EARN IT Impact Journalists?
ERIN: Obviously it’s a huge — I mean I personally feel like it going to be an issue if you are a journalist who for example uses Proton mail or Signal or things to communicate with sources, which I know a lot of people who even if they aren’t covered, for example, marginalized communities or various types do that just as a point of having that safety there and that’s going to probably be gone, you can’t actually guarantee that. And that would be a huge issue, I mean, I feel like personally I would prefer to be able to know that I could speak completely confidentially with my sources, especially if you’re covering communities who for example are sex workers or who are, you know, like going in and out of carcel systems or just in general, and it’s — yeah, it’s pretty, I don’t know it’s pretty concerning and I feel like anybody who cares about privacy on any level, whether they be journalists, sex workers, civilians, people who organize, like they should be concerned about what this could have on their efforts to do that in a way that that isn’t going surveilled to the umpteenth degree even more so than we already are.
I hope that explains a little bit.
SX: Yeah, thank you. So as far as the impact it can have with sex and technology, there is two things, right. So first of all, privacy is not a privilege, it is a right, so fundamentally understand that all technology is created and for example Facebook is — they actively encourage us to share personal information. That is not the way that all tech has to be created or is created, right, so when we have things like the EARN IT Act to kind of have law enforcement come in on the back end of our conversations, that is a privacy violation that does not have to happen.
And on the other end, we have to talk about the hindrance of innovation, so when you’re telling someone if I have a private conversation around my sexuality or sex period, that law enforcement could come in and see, that — that’s a really big problem. You know, I — I’ve been working with different organizations and also just kind of creating my own products. And a major thing we use is end-to-end encryption. So if you have laws in America that hinder end-to-end encryption, people are not going to create products in America, they are not going to want to come here and do any kind of things around technology, and also when we talk about the implication for sex workers, it’s just actually dangerous, you know, because if you go in and you’re looking for a 16 years old sex trafficking victim, you think they’re not going to check to see all the other conversations you’re having? So this is what happened after FOSTA/SESTA when we moved to Proton mail, right, and people were still using Google accounts and things like that Google can still look at your conversations and look at your information, but now with EARN IT, they will have active reason to, and they will have active reason to kick you off, look at your stuff, comb though the information that you’re sharing on their platform. So two things, one privacy is not a privilege, it is a right, and two, the innovation around sex tech will be extremely impacted it already has been by FOSTA/SESTA and EARN IT Act will just decimate the industry here in the U.S.
BLUNT: Thank you very much for that SX. Kate, did you want to finish the thought while you were frozen.
Has FOSTA-SESTA Been Used in a Court Case?
KATE: I just want everyone to remember that FOSTA/SESTA expanded facilitation of prostitution federally and none of the websites that have come down have been charged with trafficking, or none of the individuals associated with those have been charged with trafficking. It’s all been promotion of prostitution through the travel act, which promotion of prostitution is a state law but the travel act says because you’re using the Internet it crosses state lines and it becomes federal. So this is also built on an incredible expansion of criminalization of the sex trade and it has never used or utilized trafficking laws.
How Would EARN IT Impact Specific Technologies?
KENDRA: So I saw a bunch of questions from folks about how would this affect this particular technology, like, you know, VPN or Signal or proton mail, and I think there’s two answers p.m. one is sort of what Daly flagged, which is that everything that we know about the evidence about what the — what the attorney general wants to do and the commission wants to do suggests that they’re going to be pushing for tech access to encrypted communications but the other answer and I realize this is unsatisfying is that we really don’t know is the way that the bill is structured is meant to move these conversation out of the democratic law making process and instead put them in a commission that isn’t accountable to people.
So I think, you know, with regards to particular technologies, like we can make our best guess, but, you know, I can’t tell you and no one can really tell you firmly exactly what would happen under EARN IT. So I think it’s important that we be talking about how that removes the — like people’s ability to participate in a democratic decision-making process.
The other thing I’ll flag is that, you know, I know there’s a lot of non sex workers on this call and I want to just make sure that we’re highlighting the concerns of sex workers. And if you’re like well, I use a VPN or I use Signal as something — I use it as a day-to-day thing because it’s important to me but not to keep myself safe, let’s make sure that we’re highlighting and centering the folks that need these technologies to keep safe or are going to be primarily the ones who are harmed by overly restrictive crackdowns.
BLUNT: Totally. Thank you so much Kendra and I also want to say after our question segment, we’re going to sort of talk about where the bill is at as well as what our next steps are. So all of that will sort of we will brainstorm collaboratively together after that.
But I have three questions that I think sort of go together that I pulled from the chat. One — four actually, how will this affect sex workers outside of the U.S.?
If it passes how will we be able to communicate with clients, will we be able to communicate with clients? What is the interact for interpersonal violence and cyberstalking? And I think all of those can sort of be answered with a similar answer if anyone wants to hop on that.
Does EARN IT and FOSTA-SESTA have an International Impact?
SX: I’ll just do the sex worker one real quick. How can it impact international? For one we know that anything that passes in America, for example, FOSTA/SESTA, has a huge international reach, because we have a lot of people — we have a lot of sex — people that are based in America, right.
Two, how does that impact communication with clients. We as sex workers are always survivors so we will find a way, so think about FOSTA/SESTA, how much that put a ridge into communications that happened with providers and clients. Think about that time on steroids, right? Think about all the complications that came from you having to switch to Signal, you having to switch outside of Google to go to Proton, think about that times a million.
ERIN: And in general sex workers know that when interacting with clients, we already have to use, you know, different names for certain things, we know we’re illegal and have to walk around and things such as that, but basically this takes a whole other level of protection interacting with clients we currently still have even after FOSTA/SESTA and whatever happens in the United States will inevitably impact everyone globally, especially sex workers so it’s kind of like inevitably that this will have a huge — (inaudible) interacting with clients directly. And even more so it will probably have a similar reaction to how sex worker community spaces were impacted after FOSTA/SESTA online where a lot of were pushed off because of tech platforms reacting and going the next level and it will just be another level of that.
So in general, whether it be interacting with clients on client-facing accounts, for example, or even just directly trying to talk to them T will impact your ability to do that.
SX: Just to make one small little point, not to divert here, but please understand, for example, think about our political climate right now with COVID happening, everyone and their fucking mom is being pushed to go on to these online sex working, adult sharing websites, right. So when we have any kind of attack on sex technology, these things have impact, because they give these technology companies more control over our livelihood, over how we make money and how we have access to upward mobility. So just think about that for a second as far as how this bill can start impacting sex workers in digital and physical space.
BLUNT: Thank you, SX.
How Would EARN IT Impact Survivors of Domestic Violence?
RED: Hey there, Blunt, I just wanted to hop on for a second if that’s okay. Since we did have a couple of questions around domestic violence related issues and impact there, and also just gender-based violence and interpersonal violence I saw a question around deviant IPPVE. Like Blunt had mentioned. We’re going to have some community-based informational specifically trying to galvanized our organized communities. So if you are an a part of an organization, if you’re part of support networks are doing advocacy work and this is a passion point for you, it absolutely is going to be impacting the folks that you’re working with and amongst and I just want to say, I can’t state this any more clearly than that but imagine not being able to safely disclose to advocates, right to, or to care providers who are using alternative methods of communication that aren’t necessarily under HIPAA, right?
We already talked about journalists needing to talk to folks who are perhaps survivors themselves who may be survived acts of violence by law enforcement, right, so I think this has a lot of implications around interpersonal violence but also if you’ve experienced abuse from police and police terror in your communities and you’re trying to disclose and that, you’re trying to get word out around that, and so if you’re surviving hands at someone who has this kind of status of access, right, you know, a lot of us I think who are impassioned by this see the state as an abuser itself and so putting that into this context and thinking about who’s accessing this information when you are disclosing what your survivor status is not to be lost in this conversation.
KATE: And I think the other thing that I want to throw on top of that is especially with everyone including, you know, caseworkers, social workers, lawyers, right now everyone is using these platforms that right now they’re encrypted, but think about what it means for your lawyer to have to get in contact with you and to have to dispose that information. Right now there is a lawyer –s a lot of lawyers that talk to their clients through Signal because it’s encrypted. Let’s say that moves to an unencrypted space where that is red flagged and goes to somewhere else. That means that your communication with a lawyer is now owned by a private company like Facebook and possibly being sent somewhere else. So your ability to talk to someone like a lawyer or a counselor who, using that platform, all of a sudden you lose a lot of the ability to communicate back-and-forth in a safe way with someone where you have to disclose that information or else it’s really going to compromise the ability for you to communicate.
BLUNT: I have this question, that is, if encryption is gone, who can see nude photos that people may send? And I think that this sort of applies for all these forms of communication that we’re talking about, if what we think is going to happen with this bill is to create a backdoor for law enforcement to read encrypted messages.
And what that means is if a backdoor is created, any bad actor can then access that door. So your information is left safe, it doesn’t mean that anyone would be able to see it is what it means is that it’s more vulnerable.
Does anyone else want to add on to that?
Are there any other questions? I think I’ve read most on the list. If I’ve missed your question, feel free enter it again.
How will this impact the battle against revenge porn?
I actually, I think that it also makes non sex working folks, personal intimate content more easy to hack and more easy to gain access to. So I actually think — I believe some of the revenge porn activists were for FOSTA/SESTA but I think we’re going to say a lot more opposition to EARN IT because of the broadness and the vagueness of this bill and the way that it impacts the way that we communicate like using WhatsApp and Facebook and state phone.
SX: So to answer that question, I was, I got to ask a Norma Buster is the client relations magazine for the Carrie Goldberg law firm and they specialize in stalking pervs and kind of revenge porn what they to say is Section 230 doesn’t protect immunity from federal crimes. Revenge porn is a federal crime already. So I think like — like Blunt said, we will see more support from these revenge porn organizations for being against EARN IT because it’s a bit different from previous things that have been presented, but yeah it doesn’t — it’s kind of confusing what it has to do with revenge porn, but it’s already very illegal. So I guess that from with —
KENDRA: SX, just one quick tag on it that, I don’t think there is a federal revenge porn statute, but you’re 100 percent right that there have been cases where federal prosecutors have successfully used federal criminal law in order to prosecute people using revenge porn websites. Totally stands, I’m just a lawyer and I can’t resist the urge to nitpick so for maybe this one.
KATE: And a lot of the and there’s also an edition of different civil laws, but all of them really relate to sexually explicit material that involves minors, so not necessarily revenge porn, so it wouldn’t expand civil liability to be able to go into revenge porn specifically.
BLUNT: And I’m seeing a question here about how this act could possibly be used by law enforcement in not just sting operation but used to criminalized more citizens that otherwise wouldn’t be considered criminals.
Yeah, and I think just everything would be — have the potential to be monitored, the government wants to see what all of us are talking about, and like who opposes the government and what activists are doing. So I think it — even if — and like also a lot of forms of sex work aren’t criminalized but would still be policed and surveilled with this legislation.
KATE: Yeah, I think one thing that’s really important is when we talk about criminalization, we also have to talk about kind of the — the number or the expanse around criminalization. So it’s not just about you send a text and you’re going to jail, it’s also about being kicked of platforms. It’s also about losing your account, it’s also about the way that is we marginalize and surveil and control behaviors and chill the behaviors of a lot of different folks. It is one thing to say, all right, well you’re still going to be allowed to share information that is sexual health related. It’s a very different thing to say, but it’s going to be owned by a private company who is going to have decision-making power over that, who is going to be able to control a lot of the information, like metadata and geolocation information, and record everyone that sends that and possibly send that to a third agency.
You know, when we — yes, we can talk about these things in terms of like very specific criminalization, but is everyone who works in the sex trades around sex workers no, criminalization begins long before anyone gets handcuffs put on them and extends long after anyone gets a charge.
BLUNT: Thank you, Kate.
I’m reading a question that says, I’m a former sex work that did work privately once. I got into my career. Should I be worried about online accounts that I utilized for talking to clients works that be accessed and what steps should be taken to protect ourselves. So I think this question is about past content online.
KENDRA: Sorry, I was dodging that one in chat because it’s a really good question and I don’t know the answer. Which is to say that it’s somewhat difficult to predict exactly what you should worry about under this bill. I think that, like, so I don’t feel like I have’ great answer for you. Other than I think generally affects efforts to pass bills like this do increase the chances that you may have to worry about past messaging.
I see a question, Blunt, do you mind if I take the one about libraries and fast-tracking?
So I see a question about libraries and fast-tracking or sort of circumvent legal challenges. I think that that is likely, but they, like the fast-tracking procedure is part of this in order to circumvent legal challenges or sort of appeals from people who are being — who might be able to put the brakes on things. I also think, you know, so the fast-tracking procedure is actually a new edition to the bill. As Riana Pfefferkorn, sorry I think I just totally butchered your name from Stanford has written about — the previous draft of the bill didn’t actually include the fast-tracking provisions, but they were added when civil society pushed back and said, hey, you’re not even passing these best practices into law, so I think that, you know, it is both an effort to limit debate, but also to make it — it’s actually an effort to make the bill slightly more constitutional. Which I think I appreciate at the same time that I’d rather it get passed.
BLUNT: I’m just taking a second to look at questions. We’re going to be talking about how to get people mobilized outside of just the sex worker community as well and the way that we can sort of extend our organizing tactics in a little bit, so we’ll get to those questions in a minute. I’m just going to look for other questions.
Someone asks, are there anything in the bill that will make the concept of decentralization a platform null and void with the methods being used for censorship?
KENDRA: So, you’re rapidly going to become tired of my I don’t think we know answer, so I do have a slightly better answer for that one, which is that, you know, the newer suggestions for what to consider as part of the best practices are development of reasonable measures, take into account the type of platform. So if it was, you know, decentralized platforms may be under slightly different obligations with regards to content than more centralized platforms.
On the other hand, it may be possible that the best practices that are promulgated won’t actually be possible for decentralized platforms to comply with just because they don’t actually necessarily have the ability to block content in the same way. So the — you know, it’s difficult to predict exactly what the consequences would be, although, you know, it is heartening in some ways that the more recent draft of the bill does sort of think spare a second to think that platforms are different and the same thing won’t work for everybody.
BLUNT: Great. So another question, what about sites like OnlyFans, Patreon Chaturbate, will how EARN IT change or affect that or similar sites?
So I think what we’ve seen in the last few months are a bunch of leaks from websites like this that are happening now without the EARN IT Act. And so when sex workers are unable to use the traditional, like payment processors or website hosts that other folk in other industries are able to use, would it mean that we’re pushed sort of the to the margins to use these servers, these platforms that don’t have as good security practices, and so that’s what I think is behind a lot of the leaps that we’ve seen. And I think that the EARN IT bill would only make this significantly worse, especially since sex workers and activists are some of the primary targets to attacks and doxing.
DALY: Can I comment on that if possible, just from a security point of view on that like, yeah we’ve seen I can think of off the top of my head, breaches and leaks and hacks from different sex platforms over the last couple of months as we’ve said throughout this we don’t know yet like how, we keep saying backdoor, or unencrypted versions we don’t know yet what that will look like, just that it needs to be provided to these special committees. And opening that up in some way is just going to provide a huge vector of like a security concern. So for platforms like Chaturbate or, you know, etc., like put on your hacker hat for a second and try to imagine, the almost limitless possibilities of attack factors there are in this situation where we don’t know yet how the information has to be presented. So if you are an a performer on there or maybe just a registered user of any kind perhaps it can be like registry information is suddenly readily available and in clear text to everyone, all the way down to like banking information, all the way down to actual communications between you and other users on those platforms.
BLUNT: Thank you, Daly. Sorry SX, go ahead.
SX: I don’t — I’ll go ahead. I just wanted to just take a moment and talk about kind of the ethical, kind of philosophical impact this could have on the sex technology forums and the way sex tech is created. So as we know these Chaturbate many individuals, all these platforms are use owned by cis tech white dudes, these big powerhouses in the technology realm and they hold a lot of resource.
So when you pass bills like EARN IT, all it does is encourage them to comply and work with law enforcement. And what that can also do is have them not actually respect the performers of what the work that they’re doing and actually give them rights.
So when we think about how interfaces and websites and navigation of these sites are built, we have to talk about the overall sex tech industry and financial technology industry. So when you have bills like EARN IT, it does not encourage these platform founders to actually treat the people correctly the way they should be ethically and also the money exchange and the power dynamics that happens. So this is like a privacy and kind of political issue, but this is also a psychology-philosophy issue as well, with how we ethically create technology.
BLUNT: Thank you, SX.
We had one clarification question. Daly, would you minds talking very briefly what a decentralized platform is, just to we can make sure we’re defining it because we’re talking about it.
DALY: Sure. So I guess let me first touch on what a nondecentralized platform is or a centralized one, so like Instagram, for instance is just like an application or it’s a software that everyone engages with and uses, but it’s all contained and owned by private company, one of the big ones. And then so like a decentralized platform, they’re often like open source pieces of code or at least like an open sort of protocol that gets used, meaning you can take an instance of it or where you get to use like a clone of the application or software and you get to host it yourself and use it in any way you like for whoever you like, wherever you like, however you like, etc. — I mean however within boundaries, right?
So think of like, there are I think someone in the chat earlier mentioned like Mastodon, imagine Mastodon, it’s like a version of like an Instagram, like Instagram is this huge monolith you have to use and there is mass to done, which can be like a clone that anyone owns and uses. And often depending on the type of protocol or whatever it’s using, maybe those different, like clones or nodes of instances can communicate with each other or they’re completely closed and it’s just a closed community. Yeah. I hope that makes sense.
BLUNT: I think that made sense.
So I think we’re going to move on to the next slide so we can stay on schedule. Could someone actually first summarize the EARN IT Act in like one to three sentences, which I think is a great idea before we move into how the EARN IT Act will affect you.
KATE: Sure so right now we’re going to ask some folks in the chat sex we’re going to give you some prompt questions one by one and we’re going to save this chat, it’s not going to be viewable on the video but we’re going to save it, and especially as we start talking about and thinking through next steps, really pull from people’s experience about what your fears are when it comes to the EARN IT Act.
So the EARN IT Act establishes a federal commission to create best practices around child pornography and trafficking that websites and platforms will have to certify against, and by doing that, surveil all communication on those sites for possible red flags.
So that is the EARN IT Act, soup to nuts. And our concerns are really that their mandate is incredibly broad, that there is 0 oversight or accountability, that the things that they have to consider are not related to harm reduction and it’s impact on users, to collateral consequences, but literally it says you have to consider cost and you have to consider its impact on competition. So not actually thinking about people, and that if there — there are no metrics for success that there are no metrics for failure. So when this does have implication written into the bill is that no one cares what the unintended consequences are.
So we’re going to start asking some questions that we would love for you guys to respond to in the chat and we’ll read some of those over the next 5, six minutes we’ll read some out loud so it’s not just empty space for you to stare at our beautiful faces, but we would love you guys to think about and talk a little bit about how you think that this would impact you and your life.
So first and foremost, do you intentionally use encrypted platforms? Why, what for, why is that important? So give folks a minute to just type that out. So folks are saying they use it for sex work, for organizing, for social justice. Oh, it’s all coming in at once. To chat, to communicate for work, for organizing. It’s mandatory for talking to sources. I’m guessing that one is a journalist, protects conversations with clients with fellow sex workers with loved ones, confidential communications.
Yes to buy drugs, we definitely have to talk about that, this. This is going to affect a lot of people who really utilize these encrypted platforms.
So what would it mean for you to lose these platforms and how would this legislation affect your community?
Someone said I use encrypt the platforms to keep myself safe not just from criminalization, but from abusers to organized harm reduction, to organized groups, to do anti-ICE work.
KENDRA: Fuck ICE.
KATE: Yes, defund ICE.
BLUNT: And I see people saying that it would make them more scared to organize and to engage in even like calls like this.
KATE: Also seeing people saying the risk of deportation, people getting even increase charges, being come after because of increased surveillance and policing, the impact of having lives like your sex working life and like your straight life or civilian life, having to blur, not being able to have those kinds of boundaries as well.
Worried about travel and being questioned at the border, being outed and profiled.
BLUNT: Someone said stress and fear, which I think are very real. Stress definitely — and fear definitely chills speech, so it would just change the way that we talk and the way that we communicate.
KATE: Not being able to protect my more vulnerable friends, losing community, not being able to communicate securely with survivors.
I would speak more in code with my clients which breaks down my ability to uphold personal boundaries…
Loss of access to online sex worker community I rely on for safety and support. Chilling speech about boundaries. We have someone who is writing from a mutual care organization, saying that like, this would compromise the integrity of people being able to ask for funds with them.
Uncomfortable speaking with my therapist online.
Let’s go to the next question have you had problems with websites taking your personal holding information this isn’t just about end-to-end encryption, this is also going to probably increase the amount of information that websites ask of you, where they hold it, how they hold it, who they transmit it to.
Wow someone here disclosing that they’ve been doxed on popular stalking platforms, people naming Eros, people naming a number of platforms that have already come for them.
Yeah uploading an ID is absolutely going to be on that list.
More people that have been doxed and outed, more people who have been doxed and outed.
BLUNT: People who have their content leaked from adult companies. Social media websites requiring verification.
KATE: Organizers being doxed.
BLUNT: Being identified as a revenge porn victim publicly. And leaks being a huge concern.
KATE: Let’s pull up the next question. So what concerns do you have about the bill. And I know this is really broad and we’re also going to send out these questions afterwards and we’re going to give you some different ways to be able to share more of this information. So if something comes to mind, if you’re still thinking about it, if you don’t necessarily want to put it in the chat and have it only go to organizers, all of that is going to be available to folks.
RED: The political implications of this bill, yes. What is this going to mean for our ability to dissent, our ability to organize? Right? The political that we all hold as like folks who are working or hustling, right, is this SX. The concern that this is being pushed kind of so quietly, yeah absolutely, that there is not a lot of talk about it right now especially given the COVID-19 crisis and pandemic.
The concerns around already being shadowed banned how can we get this information out to others if we’re already experiencing these kinds of like platform banishments.
BLUNT: I’m seeing concern about the bill being snuck in amidst a pandemic, fear of not being able to have a big enough community to successfully oppose the bill.
KATE: Well, that is a beautiful way to segue into the next slide. So where is the bill right now? So EARN IT is Senate bill — oh, sorry.
KENDRA: Sorry. Can I just pause for one second.
KATE: Yeah, of course.
KENDRA: I just want to take a second to thank everyone who shared in chat because there were a lot of hard, really scary really different things people shared, concerned being doxed, being outed I think I speak on behalf of all the organizers that we’re grateful that you shared that with us in this context, we’re grateful you chose to spend time telling us about it before we sort of move to the next part.
KATE: Thank you so much for that Kendra. Really appreciate you taking a moment for that. Yes thank you so much to everyone. We have a lot of gratitude for not just this community but for folks coming together and really wanting to push back against it and also being willing to put that out there. So thank you to folks. And we have so much gratitude for you.
So first and foremost I want to say that on this slide, we will fix it, that is the absolute wrong bill number. It is 3398 and I apologize for that.
So EARN IT, was introduced — thanks guys, sorry, EARN IT was introduced into the Senate only a couple weeks —
KENDRA: Kate, do you want —
KATE: Yes, please. So it was introduced into the Senate a couple weeks ago. So what it has been introduced and put into committee, which is the first step after a bill is introduced. It has had a hearing in that committee only a couple weeks ago. And is looking to be pushed very hard by — thank you — by sponsors who are Senator Graham and Senator Blumenthal, Senator Blumenthal might be familiar to you if you follow SESTA/FOSTA, because his staff wrote SESTA.
So it has been introduced.
The next steps in a legislative process for this are going to be that it would have to be voted out of committee, that has not happened yet. I have not heard anything about it going to that stage. But it has been introduced, it is sitting in committee — sorry we’re fixing it again.
It is sitting in committee right now, which means we know who the targets are, which we know a very short list of folks who are responsible for voting on that bill next and talking about that bill next. So we know exactly who we need to call.
It is — so a lot of our next steps are going to be wrapped around those targets in particular in the Senate. For a bill to pass through Congress, it has to pass through both the Senate and the House. It has not been introduced into the House right now and they are shopping it around. So what’s really important is to know that we still have time to contact folks, to contact staffers, to have an impact on this. And, oh, it is in the Senate judiciary committee.
And the House, it might go to two different committees, those are details that I promise you we will put into our follow-up about who the targets are in the house. Because, even though they don’t yet have it and even though we are in the middle of a pandemic right now and possibly losing our government, they are still individually calling house reps to try to get them on it this bill.
So what our next steps are going to be around? So yes, they are shopping it around in the house, which means they are trying to identify the right people to introduce it in the house it get it to move in the way that they want. Even if in the middle of a crisis, we know that staffers are making personal phone calls to try to get this in front of people. So we know that they are trying to, if not move it, at least build as much support.
And one of the challenges that happened with FOSTA/SESTA was by the time the staffers got phone calls, they were like, we signed on to this bill like six months ago, we can’t vote against a bill that we’re a co-sponsor on. These come back to us next time, please keep talking to us. And so, if you click we’re going to talk about next steps. So our next steps are that we’re going to be sending you a bunch of stuff. As I follow-up to this call and trying to make available to more people, we’re going to be sending a survey talking a little bit more about how this is going to affect you and Blunt if you want to share a little bit more about that.
BLUNT: Yes. We will be sending a survey so that folks who feel comfortable sharing more publicly in a quotable form, it can be anonymously, pseudonymously, cannot say that word, but basically the questions that we just covered, we’re sort of hoping to gather information as well as community source information on the way that they want to see this movement that we’re sort of building around the EARN IT bill progress, and where we think we can build power, what communities can have access. So I will be dropping that link right now. We have a social media power hour planned for April 2nd. So stay tuned to Hacking Hustling on Instagram and Twitter for more information about that. And we’ll be sharing in the next few days scripts for suggested tweets and posts in a few memes as well.
And I also just want to say again, like we’re so thankful for everyone sharing in this chat and taking the time to be here. We were just totally blown away how quickly we got 300 RSVPs and I think that there’s a lot of fear in community after FOSTA/SESTA was signed into law and how little information there is out there about the EARN IT Act and I think that we can really take this time and opportunity to build power together and oppose this legislation. So I’ll be now dropping the link into the chat for the survey if you just give me one moment.
KATE: Yeah, we’re also going to be with that — with that information we’re going to be doing the social media power hour. We’re going to ask everyone to just take ten minutes, here is — here is our big ask, we want you to — we would love for people to engage in the social media power hour. We would love for people to call their senators and call their reps, and we do have a short list of target senators, we do have a short — slightly longer list of target reps in the House. And it’s a little tricky because it’s not very typical to make phone calls on a bill that hasn’t been introduced yet, but we know they’re trying to get folks on that so we’re going to be sending out that list.
We’re going to put information about where they’re from for senators there’s two senators that cover each state, for House reps there is different — you have one rep for more localized area. So we’re going to put information on those senators and on those reps. If you are in a state where you are totally solid, your senator, your rep is going to be fantastic on this, awesome. We would love for you to find one person to ask who is from either — from one of those target locations and say I really, really need you to make this phone call. So definitely make your three phone calls, each of them takes all of like two minutes and then we would love for you to say, hey, you have a really important rep and we really need you to call and we really need you to let them know that this is an important bill that is probably coming through their staff right now. And yeah it says trafficking, yes, it says child porn, yes, it says law enforcement and a lot of people are going to sign on based on that but please just pause and remember, and please just remember that it’s really important for those conversations to happen and for people to stop and pause before they sign on. And make sure that this doesn’t move forward with a lot of those keywords being the thing that people focus on.
BLUNT: Awesome. Thank you so much for that, Kate.
So I am going to send out — yes, so answering the questions, we’re going to post the video recording as well as the transcript for this. So folks who are hard of hearing or deaf can also learn from this call and we will tweet that out. It will be on our website on the link that I sent. I’m sending out the survey monkey again. It really will take like ten minutes, if any of you empowered to share more publicly what you shared in this group chat, that would be totally amazing, it would be super grateful. We ask for suggestions for tweets for a Twitter storm, suggestions for hashtags as well as to share a little bit more about your — about how — how you’d use encrypted services, how the EARN IT bill would affect you, and, yeah so that would take ten minutes and we will e-mail everyone on the call when we have our social media power hour scripts to send to everyone to help organize that. And thank you again. Thank you so much.
KENDRA: Thank you everyone for joining.
BLUNT: We’re two minutes. I’m very impressed with us.
KENDRA: I literally did not believe that was possible.
BLUNT: People showed up half an hour early, we’re two minutes before, if anyone has any questions and the Hacking Hustling website is going to be updating the EARN IT page which he shared, which I’ll share again as we continue to mobilize around this bill.
SX: Yes, SX Noir here thank you all for joining, and I am available for any journalistic quotes or any kind of conversations you want to navigate outside of this conversation. And as always, be thoughtful.