Senators Richard Blumenthal (D-CT) and Lindsay Graham (R-SC) have reintroduced the EARN IT Act for congressional consideration. The proposed bill, titled in full the “Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2022,” seeks to crack down on the proliferation of child sexual abuse material online. The Act would establish a bipartisan National Commission on Online Child Sexual Exploitation Prevention consisting of law enforcement, prosecutors, civil rights and privacy professionals, cybersecurity professionals, tech industry representatives, and child sexual abuse survivors. It would be tasked with developing best practices for combatting child sexual abuse online. The Act also would update language across the United States Code from “child pornography” to the more sensitive and descriptive term “child sexual abuse material.” Finally, the proposed Act would open interactive online content platforms to civil and criminal liability for hosting child sexual abuse material if they decline to adopt the Commission’s best practices.

This last provision has caused considerable controversy. Online companies have traditionally been shielded from liability for hosting unlawful or tortious user-generated content under Section 230 of the Communications Decency Act. Proponents of this new measure, including the National Center for Missing and Exploited Children, believe that this amendment is necessary to incentivize social media and other content aggregators to properly curb the spread of child sexual abuse material and protect exploited children. For the victims of child sexual abuse, curtailing the spread of these images and videos is critical for preventing future injury and regaining control of their lives

However, opponents of the proposal have criticized the bill as attacking encryption and privacy rights. Organizations such as the ACLU and Fight for the Future fear that incentivizing tech companies to comb through the private data hosted on their platforms will disproportionately harm marginalized groups such as sex workers and the LGBTQ+ community. These groups often rely on private online communication to organize, conduct business, and engage with their communities globally. Eroding these protections, the Act’s opponents fear, would further endanger segments of society already at risk of violence. In an open letter to Congress, the ACLU also expressed concerns that the proposed Commission would be unelected and subject to the whims of the U.S. Attorney General’s office.

The Senate Judiciary Committee will consider the Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2022 on February 10, 2022.

This post was authored by C. Blair Robinson, legal intern at Robinson+Cole. Blair is not yet admitted to practice law.