The Electronic Frontier Foundation, the 30-year-old advocacy group that has been a pioneer in defending digital civil liberties, sent a letter this week to the United States Senate, opposing the controversial EARN IT Act -- which the EFF says will
result in online censorship that will disproportionately impact marginalized communities, will jeopardize access to encrypted services, and will place at risk the prosecutions of the very abusers the law is meant to catch.
Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2020, or EARN IT, is designed to roll back protections for online platforms under Section 230 of the 1996 Communications Decency Act. Section 230 is widely considered the First
Amendment of the Internet. As AVN reported last month, the law is not only the backbone of open online communications, but for adult content online as well.
Efforts to roll back Section 230 protection will have a significant
adverse impact on the adult entertainment industry if passed, First Amendment attorney Lawrence Walters told AVN in August. Any change to Section 230 could result in restrictive content moderation rules or elimination of the platforms themselves.
Platforms would be required to earn the protections currently afforded by Section 230 by following a set of vaguely defined best practices to prevent illegal activities, specifically sex trafficking and Child Sex Abuse Material
(CSAM), if EARN IT passes.
Under EARN IT, states will be free to impose any liability standard they please on platforms, including holding platforms liable for CSAM they did not actually know was present on their services, EFF
warned in its letter to the Senate. Nothing in the bill would prevent a state from passing a law in the future holding a provider criminally responsible under a 'reckless' or 'negligence' standard.
In other words, under EARN IT,
state governments could punish online platforms for almost anything that could be broadly interpreted as CSAM or Sex trafficking, even bringing criminal charges against site operators. The dangers for the adult industry are clear if states are allowed to
define a wide range of sexual content as promoting sex trafficking.
But sex worker advocacy groups have also warned that the EARN IT law could lead to increased surveillance of workers in the sex industry. EFF also addresses the
surveillance threat in its letter to the Senate.
End-to-end encryption ensures the privacy and security of sensitive communications such that only the sender and receiver can view them, the group wrote. But the EARN IT Act
threatens to undermine and disincentivize providers from providing strong encryption.
The EFF compares EARN IT to a previous sex trafficking law, FOSTA/SESTA, which is the only law so far passed that actually curtails Section 230
protections, in cases when sites are deemed to promote online sex trafficking. But that law had the opposite effect from its stated intention.
Instead, it has forced sex workers, whether voluntarily engaging in sex work or forced
into sex trafficking against their wills, offline and into harm's way, EFF wrote. It has also chilled their online expression generally, including the sharing of health and safety information, and speech wholly unrelated to sex work.
In the letter, EFF urges the Senate not to fast track the EARN IT bill -- and to vote it down if or when it finally comes before the entire Senate. The bill passed through the Judiciary Commitee in July.
The European Commission adopted a proposal for a Regulation on a temporary derogation from certain provisions of the ePrivacy Directive as regards the use of technologies by number-independent interpersonal communications providers for the processing of
personal data and other data for the purpose of combatting child sexual abuse online .
A growing number of online services providers have been using specific technological tools on a voluntary basis to detect child sex abuse online in their networks.
The law-enforcement agencies all across the EU and globally have been confronted with an unprecedented spike in reports of child sexual abuse material (CSAM) online, which go beyond their capacity to address the volumes now circulating, as they focus
their efforts on imagery depicting the youngest and most vulnerable victim. Online services providers have therefore been instrumental in the fight against child sexual abuse online.
MEP David Lega commented:
welcome this legislative proposal that allows online services providers to keep making use of technological tools to detect child sexual abuse online, as a step forward in the right direction to fight against child sexual abuse online. The cooperation
with the private sector is essential if we want to succeed in eradicating child sexual abuse online, identifying the perpetrators and the victims. It is our responsibility as legislators to ensure that online services providers are held responsible and
prescribe a legal obligation for them to make use of technological tools to detect child sexual abuse online, therefore enabling them to ensure that their platforms are not used for illegal activities.
Facebook has announced changes to its Terms of Service that will allow it to remove content or restrict access if the company thinks it is necessary to avoid legal or regulatory impact.
Facebook users have started receiving notifications regarding a
change to its Terms of Service which state:
Effective October 1, 2020, section 3.2 of our Terms of Service will be updated to include: We also can remove or restrict access to your content, services or information if
we determine that doing so is reasonably necessary to avoid or mitigate adverse legal or regulatory impacts to Facebook.
It is not clear whether this action is in response to particular laws or perhaps this references creeping
censorship being implemented worldwide. Of course it could be a pretext to continuing to impose biased political censorship in the run up to the US presidential election.