US: Senate Should Reject EARN IT Act

(Washington, DC) – The United States Senate Judiciary Committee should reject a proposed law that would jeopardize privacy and free expression rights without effectively protecting children from online sexual exploitation, Human Rights Watch said today in a letter to the committee’s leadership.

Children are entitled to specific protections for their safety, privacy, development, identity, and freedom of expression online. A nuanced and targeted approach is critical to both protect children from online harm and to protect their rights to use online spaces and access information. The Eliminating Abusive and Rampant Neglect of Interactive Technologies Act (“EARN IT Act”), introduced by Senate Judiciary Chairman Lindsey Graham and Senator Richard Blumenthal, does neither.

“The EARN IT Act falsely suggests that we must choose between protecting children and protecting other fundamental rights, including privacy and free expression,” said Hye Jung Han, child rights and technology researcher at Human Rights Watch. “Congress should instead adopt a rights-respecting approach to keep children safe online and protect their rights to access online spaces to learn, play, and socialize.”

The EARN IT Act calls for internet companies to curb child sexual abuse material on their platforms. It would create an unelected 19-member commission to develop guidelines that could remove legal protections for companies that fail to follow them. This structure risks creating an incentive for broad censorship by companies, harming freedom of expression online. Such guidelines could also be used to ban encryption.

The EARN IT Act encourages overreaching censorship of protected speech along with the removal of illegal material, without distinction. The bill would force 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.

The bill’s provisions also threaten access to encryption, which protects everyone from exploitation and surveillance, for children attending school online to journalists and whistleblowers. Under the bill, companies that employ end-to-end encryption would be open to lawsuits construing encryption as “recklessly” enabling the spread of child sexual abuse material.

The bill’s failure to allow for public debate around the necessity and proportionality of future restrictions developed by the proposed commission, or to require a human rights impact assessment, further highlights its problematic framing of the fight against online child exploitation as a binary choice between protecting children’s rights and other fundamental rights.

The EARN IT Act also fails to distinguish between the distinct components involved in combating child exploitation online. Each of these – prevention, identification, reporting and removal of content, enforcement, and protection of child victims – require different responses, with different technological, public policy, and rights implications.

The US government has given each of these components vastly different levels of attention, scrutiny, and investment. State and local law enforcement efforts and social and child protective services, for example, have been left underfunded by the government, even as they have been asked to handle an exponential surge in caseloads. Many of the strongest provisions of existing child protection laws have gone unfulfilled, unfixed, or ignored.

The EARN IT Act ignores the need for multiple actors and solutions to contribute to an effective response, focusing solely on tech companies to solve child exploitation online. By doing so, it risks applying technology tools inappropriately to solve social, policy, or enforcement problems. This approach may infringe not only on the rights of children, but also on the rights of marginalized groups and of society as a whole.

The US Congress should adopt a rights-based approach and ensure that efforts to combat the spread of child sexual abuse material online are targeted, nuanced, and effective, Human Rights Watch said.

To this end, Congress should update and implement a comprehensive national framework to respond to and prevent the spread of child sexual exploitation material and ask the Government Accountability Office to evaluate the effectiveness of existing measures. Congress should also invest in enforcement measures and protections for child victims that have been chronically underfunded. Any new standards applicable to internet providers in combating online child sexual exploitation material should be explicitly legislated, based on evidence, and with special consideration given to their human rights implications.

Congress should also invite meaningful participation by and engagement with children, whose voices and opinions are central to these policies.

“As the lives of millions of children have moved increasingly online during the Covid-19 pandemic, it’s ever more critical to keep them safe,” Han said. “But the EARN IT Act fails to protect children from online exploitation while undermining their fundamental rights to freedom of expression, access to information, and privacy – during today’s crisis and beyond.”