Future Tense

The EARN IT Act Would Give Criminal Defendants a Get-Out-of-Jail-Free Card

A seated Lindsey Graham elbow-bumps a standing Richard Blumenthal while both grin.
Sen. Lindsey Graham and Sen. Richard Blumenthal are co-sponsors of the EARN IT act. Andrew Harnik/Getty Images

We all agree we need to keep America’s kids safe online. This has become all the more apparent as policymakers have discussed Facebook whistleblower Frances Haugen’s allegations, amending the Children’s Online Privacy Protection Act, and more.

But there are big disagreements about how to protect kids from child predators online. Two years ago, we saw a bill sponsored by Sen. Lindsey Graham, R-South Carolina, and Sen. Richard Blumenthal, D-Connecticut, aimed at tackling child sexual abuse material.
Although well intentioned, it threatened encryption and privacy features and would actually have put Americans’ privacy—particularly kids’ privacy—at risk. It also gutted Section 230 in ways that caused over 50 civil rights groups to pen a letter describing potential consequences like censorship, chilled speech, and the destruction of encryption. So when the legislation failed to advance, digital liberties advocates, sex workers, and civil rights organizations breathed a sigh of relief.

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Now in 2022, the EARN IT Act is back, and worse than it ever was before. Like the 2020 version, the proposal would still give child predators a get-out-of-jail-free card and would still undermine the fight against child predation online. Nevertheless, on Thursday, the Senate Judiciary Committee marked up and approved it.

The EARN IT Act aims to tackle the horrific criminal activity related to child sexual abuse material by making Section 230 protections contingent on the prevention and response to such material. Section 230 shields online services, like commonly used social media, from liability for most user-generated content. Under the EARN IT Act, Section 230 would be amended to enable civil claims and state criminal prosecution related to child abuse material against online platforms. As a result, online services could be subject to endless litigation under potentially more than 50 different legal regimes for child sexual abuse material.

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Although well-intentioned, the bill would undermine our children’s safety—and actively put them at risk—by disrupting the delicate constitutional balance that allows online platforms to voluntarily search for illicit and illegal material and report it to authorities without violating the Fourth Amendment—which protects citizens from unreasonable searches and seizures by the government. Simply put, this would end up giving criminals a way to challenge their convictions for child sexual abuse material. And to be extremely clear—it’s already a criminal offense to produce or distribute child sexual abuse content.

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As it stands, most companies that host online content voluntarily turn over huge amounts of potential evidence of child abuse to the National Center for Missing and Exploited Children. Because private companies search for this evidence voluntarily, courts have held that the searches are not subject to the Fourth Amendment. But the EARN IT Act threatens to disrupt this relationship by using the threat of endless litigation and criminal prosecution to strongly pressure private companies to proactively search for illegal material. Thanks to how the EARN IT Act amends Section 230, companies are more exposed to civil and criminal liability if they don’t follow the government’s “or else” threat and search for child sexual abuse material.

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Currently, tech platforms have an obligation to report but not search for suspected instances of child sexual abuse material. That’s why searches today are constitutional—they’re conducted voluntarily. By encouraging and pressuring private sector searches, the EARN IT Act casts doubt on every search—they’d no longer be voluntary. Thus, the Fourth Amendment would apply, and evidence collected without a warrant—all child sexual abuse material in this case, since private parties can’t get a warrant—would be at risk of exclusion from trial.

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The Supreme Court has long held that when the government “encourages” private parties to search for evidence, those private parties become “government agents” subject to the Fourth Amendment and its warrant requirement. That means any evidence these companies collect could be ruled inadmissible in criminal trials against child predators because the evidence was procured unconstitutionally.

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Put simply, thanks to the EARN IT Act, under the Exclusionary Rule, defense attorneys could argue that evidence was collected in violation of the Fourth Amendment and should be excluded from trial. As a result, the bill could lead to fewer convictions of child predators, not more.

This isn’t theoretical. Defense attorneys in online child abuse cases already make that argument, but courts have largely held that the Fourth Amendment isn’t implicated precisely because the government has not—yet—encouraged companies to search for child sexual abuse material. Bottom line, as long as the searches are completely voluntary, the Fourth Amendment isn’t at issue.

That all changes if the EARN IT Act becomes law. Courts would likely see the EARN IT Act for what it is: a federal scheme to pressure private companies into conducting searches on behalf of law enforcement. Not only would EARN IT jeopardize all future evidence collected by these companies, but it would also kill the current constitutionally sound practice of voluntarily turning over evidence.

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Tech companies’ submission of child predation evidence would no longer be considered voluntary, so law enforcement would need to obtain a warrant to use evidence submitted by tech companies in court. Child predators could be let off the hook, allowing them to escape justice.

The EARN IT Act sponsors want to tackle child exploitation online, but their bill’s effects are more important than its intent. Instead of making it harder to protect their kids online, Congress can and should focus on solutions that will keep America’s kids out of harm’s way. An alternative proposal led by Section 230 co-author Sen. Ron Wyden, D-Oregon, could do just that: ensure the National Center for Missing and Exploited Children has the resources it needs to best fight child predators while avoiding the civil rights, privacy, and child safety problems the 2020 and 2022 versions of the EARN IT Acts have.

Rather than putting victims of child predators and slam-dunk convictions at risk, Congress has the option to make critical evidence all the more effective in the fight to protect our kids online.

Future Tense is a partnership of Slate, New America, and Arizona State University that examines emerging technologies, public policy, and society.

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