EARN IT – Section by Section Breakdown

Sec 2. Definitions

SectionConcerns
Summary: The term “interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions. Here is a little more from a 4th Circuit case: “It has been uniformly held that Internet service providers are ‘‘interactive computer service’’ providers.(7) Courts have concluded that a Web site operator, search engine, or other entity was or was not a provider of an ‘‘interactive computer service’’ depending on whether there was a sufficient indication before the court that it ‘‘provided or enabled computer access by multiple users to a computer server’’ within the meaning of the definition found at § 230(f)(2). (Noah v. AOL Time Warner, Inc., 261 F. Supp. 2d 532 (E.D. Va. 2003), summarily aff’d, 2004 WL 602711 (4th Cir. 2004)No one has ever tried to narrow the definition of ICS in court because prior to FOSTA, the government never used 230 to criminalize, but instead 230 provided defendants with immunity. Because of this, companies have always tried to expand the definition of who is an ICS, because everyone wanted to be included to access that immunity. ICS now includes listservs, apps, chatrooms, websites, internet providers, intranet providers – anything giving multiple people access to a single server including tech we haven’t even envisioned yet. In short, this is very broad.

Sec 3. National Commission on Online Child Sexual Exploitation Prevention

SectionConcerns
Summary: The commission, detailed in the
following sections, will develop
recommended best practices for websites
regarding all elements of online sexual
exploitation of minors. The commission will
consist of 19 members from the AG’s office,
DHS, and the FTC, as well as 16 members from law enforcement/prosecutors,
survivors of CSAM, tech and security, and
internet platforms. The commission will be
chaired by the Attorney’s General.
Commission lacks anyone from the sex
industry, including internet/cam/porn
performers, in-person sex workers who
use the internet to advertise,
community groups who use online
platforms to organize

Commission lacks anyone who
understands harm reduction, including
those who do outreach using the internet, understand harm reduction in
terms of vulnerabilities of the internet

AG Barr, as the Chairperson, “has
made it very clear he would like to
ban encryption, and guarantee law
enforcement “legal access” to any
digital message.

Sec 4. Duties of the Commission

SectionConcerns
Summary:
The Commission will have 18 months
to develop and submit to the
Attorney General recommended
best practices for websites
addressing all stages of trafficking of
minors into commercial sex, child
sexual abuse, and the distribution of
CSAM, and to whom these
standards would apply.

The mandate of this commission
covers all aspects of prevention,
identification, disruption and
reporting, including working with
outside entities, retention of
metadata and content, training of
websites, age ratings and gradings
for content, parental controls, and
practices between websites and
third parties.

The commission is asked to consider
cost, and the impact on
competition, technology and law
enforcement.

These recommendations will be
codified into law through a fast-track
procedure, to be certified by the
DOJ annually.
The fast track procedure is atypical
and means that there will also be a
lack of transparency with
Congressmembers, media and the
public.

The mandate is incredibly broad and
means the commission has the ability
to basically regulate anything it
wants without explanation.

“Age ratings and gradings” alone
means that this could cover pretty
much any content.

Similar to things like the Department
of Treasury’s FinCen guidelines which
look for red flags for “Trafficking” but
has a clear targeting of the sex trade
more generally and has resulted in
sex workers losing access to financial
platforms, the lack of even a
consideration for sex workers within
this means that there isn’t even
anyone who understands, let alone
cares, about the impact. The
overbreadth of these guidelines,
married to a complete lack of
transparency/accountability mean
that sex on the internet is basically
going to be regulated by 19 randos
with AG Barr at the helm and pose
the threat of civil liability of anyone
who doesn’t comply.

There is zero accountability – if this
goes wrong, we have to wait five
years for the same pack of yahoos to
try and tweak this. There are no
metrics for success, no metrics for
whether there will be a
disproportionate impact on anything,
no measures of transparency for
Congress to even review the impact.

Sec 5. Enforcement

SectionCONCERNS
Summary: If immunity is falsified, both civil
and criminal penalties apply (max two
years).
We shouldn’t expand the criminal
code.

Certification deputizes private
companies to surveil people beyond
what law enforcement would be
allowed to do under the Fourth
Amendment (search and seizure
Amendment)- this is the gov making
private companies do what is illegal for
the gov to do

Sec 6. Earning Immunity

SECTIONCONCERNS
Summary:
For ICSs who do not go through the
certification procedure described
above, they would lose the rigor of
existing 230 protections; currently there
is a standard where they would have
to “knowingly” move/distribute CSAM
to be liable, but this would change to a
significantly lower “recklessly” standard
for liability.

Amends section 230 to newly allow
fourteen kinds of federal civil suits
against interactive computer
services (ICSs). (For comparison,
FOSTA allows only one new kind of
civil claim against ICSs.)

Creates a new civil claim targeting
ICSs for “distribution” or
“transportation” of child
pornography (as well as several
other kinds of conduct) using a
recklessness standard.
The threat of civil action against
companies is extremely incentivizing

Because civil suits only require a
plaintiff to prove the defendant “more
likely than not” broke the law (unlike
criminal claims that require proof
beyond a reasonable doubt), and
because the recklessness standard
here means that a company doesn’t
have to know their tech was used to
distribute child pornography, this
creates SWEEPING liability

FOSTA’s sponsors tried to pass a
criminal provision using a
“recklessness” standard for websites
and it was amended out because
legislators widely agreed that it was
too broad

A recklessness standard, if any
companies don’t get certified and
thus become subject to this liability,
would likely incentivize very intensive
monitoring of user content – so
basically this bill ensures private
surveillance of ICS users will happen
whether or not companies choose to get certified by the commission

Websites – Facebook, IG, Seeking
Arrangements – already demonstrate
due diligence to try and preserve their
liability by kicking off sex workers.
There is no safeguard, no resource,
and no support for when these
companies are forced to look for
elements of transactional sex. Sex
workers are routinely kicked off
platforms, lose access to basic tools of
communication, etc.

Sec 7. Use of term “child sexual abuse material”

SECTIONCONCERNS
Summary: Replaces “child pornography”
with “Child sexual abuse material” in
existing statutes, but retains the same
definition.
While the bill states that this language
means exactly the same thing, if that
were true there would be no need to
change it. My guess is that it is legally
the same but publicly more
stigmatizing. – Extension of the “no
such thing as a child prostitute” kind of
fights. Rhetorical in nature.

Sec 8. Modernizing the CyberTipline

SectionConcerns
Summary:
This section expands the amount of
information required to be turned
over to NCMEC when reporting
potential instances of CSAM, namely
location information.

The bill also offers a very narrow
provision of limiting liability against
Federal indictment for websites
exclusively for participation in these
efforts around child sexual abuse –
but not even to any of the other
ways that these websites operate.
The more information websites are
required to collect and hold, the more
vulnerable sex workers are.
Geolocation information and
metadata is something users often
struggle to turn off/delete, and this
would mean that all of that
information will not only be
discoverable by private entities, but
also held for a period of time in order
to be useable – which means that
detailed information for a community
who faces disproportionate levels of
harassment, stalking and violence will
be held by all forms of websites.

Sec 9. Rule of construction

sectionconcerns
Summary: This is an explicit claim that this
bill will not require ICSs to monitor for CSAM.
This is actually kind of a wild claim
because it seems as though, in
practice, complying with the bill
definitely requires monitoring by
uncertified ICSs (see section 6) and
the Commission may make an explicit
requirement as well.

This is kind of “no one’s making you
but if you don’t you’ll regret it.
Wouldn’t want to see anything
happen to your nice dating app…”

Sec 10. Authorization of appropriations

SECtionconcerns
Summary: There are authorized to be
appropriated such sums as may be
necessary to carry out this Act.
Standard

Sec 11. Severability

sectionconcerns
Summary: If one section of the act is found
unconstitutional, the rest are not necessarily
unconstitutional.
Standard