March 05, 2020

Graham, Blumenthal, Hawley, Feinstein Introduce EARN IT Act to Encourage Tech Industry to Take Online Child Sexual Exploitation Seriously

Reports to NCMEC CyberTipline of suspected child sexual abuse material have grown

WASHINGTON – Senate Judiciary Committee Chairman Lindsey Graham (R-South Carolina), U.S. Senators Richard Blumenthal (D-Connecticut), Josh Hawley (R-Missouri) and Ranking Member Dianne Feinstein (D-California) today introduced bipartisan legislation to encourage the tech industry to take online child sexual exploitation seriously.

The Eliminating Abusive and Rampant Neglect of Interactive Technologies Act (EARN IT Act) would create incentives for companies to “earn” liability protection for violations of laws related to online child sexual abuse material (CSAM).

The legislation is also cosponsored by U.S. Senators Kevin Cramer (R-North Dakota), Doug Jones (D-Alabama), Joni Ernst (R-Iowa), Bob Casey (D-Pennsylvania), Sheldon Whitehouse (D-Rhode Island), and Dick Durbin (D-Illinois).

“I appreciate my colleagues working with me on this bill to ensure tech companies are using best business practices to prevent child exploitation online,” said Graham. “This bill is a major first step. For the first time, you will have to earn blanket liability protection when it comes to protecting minors. Our goal is to do this in a balanced way that doesn’t overly inhibit innovation, but forcibly deals with child exploitation.”

“The internet is infested with stomach-churning images of children who have been brutally assaulted and exploited, and who are forced to endure a lifetime of pain after these photographs and videos are circulated online,” said Blumenthal. “Simply put, tech companies need to do better. Tech companies have an extraordinary special safeguard against legal liability, but that unique protection comes with a responsibility. Companies that fail to comport with basic standards that protect children from exploitation have betrayed the public trust granted them by this special exemption. Online platforms’ near complete immunity from legal responsibility is a privilege – they have to earn it – and that’s what our bipartisan bill requires.”

“First Big Tech said it needed special immunity from human trafficking laws. Now it says it needs immunity from laws against child pornography. Enough. It’s time to stop putting the financial interests of Big Tech above protecting kids from predators. The EARN IT Act is another way to bring today’s internet law into the 21st century,” said Hawley.

“Technological advances have allowed the online exploitation of children to become much, much worse over recent years,” said Feinstein. “Companies must do more to combat this growing problem on their online platforms. Our bill would allow individuals to sue tech companies that don’t take proper steps to prevent online child exploitation, and it’s an important step to protect the most vulnerable among us.”

The EARN IT Act is supported by more than 70 groups, survivors and stakeholders, including the National Center for Missing & Exploited Children (NCMEC), Rights4Girls, and the National Center on Sexual Exploitation.

Background on the EARN IT Act:

  • In July 2019, the Senate Judiciary Committee held a hearing titled, “Protecting Innocence in a Digital World”.
  • Later in 2019, the New York Times published a series of investigative reports, describing the rapid increase of child sexual abuse material on prominent online platforms. This is a threat that has not received a consistent and forceful response from the tech industry.
    • Reports of suspected child sexual abuse material to the NCMEC CyberTipline have exploded since its inception. For example, over the past five years, reports increased from 1.1 million in 2014 to 16.9 million covering 69.1 million photos, videos, and files in 2019.   
  • Section 230 of the Communications Decency Act gives “interactive computer services” significant immunity from civil liability, as well as state criminal liability for third party content on their platforms.  Sadly, given this limited liability, many companies do not aggressively go after online child sexual exploitation.

Highlights of the EARN IT Act

  • Creates a strong incentive for the tech industry to take online child sexual exploitation seriously. The bill amends Section 230 of the Communications Decency Act to allow companies to “earn” their liability protection for violations of laws related to child sexual abuse material.
  • Establishes a National Commission on Online Child Sexual Exploitation Prevention to recommend best practices related to identifying and reporting online child sexual exploitation. The Commission consists of the heads of DOJ, DHS, and FTC, along with 16 other members appointed equally by Congressional leadership, including representatives from: law enforcement, survivors and victims’ services organizations, constitutional law experts, technical experts, and industry.
  • Allows for Congressional review of best practices. Before companies can certify compliance, there is a period of Congressional review for the Commission-developed best practices.
  • Safe harbors for liability. Companies can choose to certify compliance with best practices in order to maintain immunity from child sexual abuse material statutes. If companies do not want to certify compliance with best practices, they can maintain immunity by establishing that they have other reasonable practices in place to prevent child sexual exploitation.
  • Recourse for survivors and tools for enforcement. The bill bolsters enforcement of child sexual abuse material statutes and allows survivors civil recourse if companies choose not to comply with best practices or establish reasonable practices.