The Anti-Child Exploitation Bill Vowing to Hold Big Tech Accountable

by Asa Hiken

S.3398—the EARN IT Act—has already cruised through the Senate, and needs only House approval to become law.

(Photo by Louis Velazquez on Unsplash)

We often forget that the World Wide Web is a Wild, Wild West. There is no Prime Minister of the Internet, no single, unbiased council tasked with sifting through each byte of data and deciding what can stay. As a result, the Web is teeming with malicious, unfettered content. And it’s only getting worse. 

In 2019, the National Center for Missing and Exploited Children reported a staggering 70 million instances of child sex abuse material, or CSAM. This is a nearly 50 percent spike from the previous year, and according to an INTERPOL report released in September, the domestic circumstances resulting from the pandemic—school closures, travel restrictions, an increase in Internet usage—have put millions of more children at risk of being subjected to the same exploitation.

“CSAM has overwhelmed law enforcement,” said Deborah Sigmund, director of nonprofit Innocents at Risk, in a recent newsletter. “They do not have enough resources to target perpetrators…in real time.” Along with other DMV-based, anti-child sex abuse organizations, such as the National Center on Sexual Exploitation and Enough is Enough, Innocents at Risk has been putting pressure on government agencies to dial up their online security efforts.

Again, the Internet is largely ungoverned territory, but if any group is powerful enough to be its arbiters, it’s not law enforcement. Rather, it’s the tech companies facilitating the bulk of the Web’s content. Google, Microsoft, Facebook, etc.—the giants processing some 20 million gigabytes of data a day. Yet despite the heavy circulation of CSAM on their servers, Big Tech is staying hands-off.

With this deadlock in mind, S.3398, also called the Eliminating Abusive and Rampant Neglect of Interactive Technologies Act (EARN IT), has moved swiftly through the Senate and is now awaiting deliberation by the House of Representatives. Introduced back in March by Senators Lindsey Graham (R-SC) and Richard Blumenthal (D-CT), EARN IT aims to hold tech companies accountable to the data they allow on their servers. The bipartisan effort specifically targets Decency Act Section 230 (CDA 230), which provides website publishers impunity under the law for third-party content displayed on their site. With EARN IT, tech companies will lose this impunity, and thus be forced to monitor their servers, or else face legal action.

In a New York Times article published in March, companies were identified by their current efforts in detecting CSAM imagery using data collected by the National Center for Missing and Exploited Children. Of the 70 million instances of CSAM reported in 2019, nearly 60 million (85% of the total) were reported by Facebook. While the social media giant’s efforts are commendable, the same cannot be said for its counterparts. That same year, Google reported 3.5 million instances of CSAM; Yahoo reported more than 2 million; Microsoft, Twitter, and Snapchat each reported just over 100,000; Apple reported less than 3,000 instances; and Amazon reported none at all.

EARN IT seeks to reverse this trend by creating an Online Child Exploitation Prevention Commission, which will establish “best practices” for tech companies to follow in detecting CSAM. Just what these practices are were not enumerated in the bill’s fine print, but this hasn’t stopped local, third-party advocates from offering recommendations. One idea is for the implementation of family-friendly filter systems. Another suggests a more consistent use of the CyberTipline. Then there are the calls to raze the Clear Web’s supposed public enemy number one: Pornhub.

With over 7 years’ worth of pornographic material, Pornhub is the largest adult website in the world, and therefore ripe for the circulation of CSAM. In fact, not only does Pornhub overlook CSAM, but it has also profited from and enabled its dissemination. Just last year, a massive lawsuit filed by 22 plaintiffs claimed that Girls Do Porn, a former Pornhub “Content Partner” and verified channel on its website, lied to and coerced over 100 women into participating in unwanted sex scenes. The footage was posted online without the victims’ consent, and their identities were later doxxed, leading to sustained online harassment. At the time of their recruiting, multiple victims were underage. And although the plaintiffs eventually won $13 million in damages, and Pornhub scrapped the Girls Do Porn webpage, videos of the women could still be found on the website for months afterward. 

While Pornhub’s enablement of CSAM is of particular salience, its fundamental lack of accountability is not so different from that of most of Big Tech. Pair this with the opacity through which tech companies conduct business, and you get an increasingly skeptical public eye.

“Why would technology companies ever step up proactively if not doing so [makes] them more money?” said Sigmund. Innocents at Risk and its local counterparts fervently support EARN IT. “Groups such as…Google oppose…the EARN IT Act [because] it has the teeth to push technology companies to proactively build [and] clean up their own platforms, and that will cost them time and money.”

Big Tech, though, is not alone in its opposition. Notable digital and civil rights groups, including the ACLU, have roundly rejected the bill because of a presumable lapse of security. Under EARN IT, tech companies will have to compromise their current method of data interference, a system called end-to-end encryption, in order to aggressively monitor their servers. The result may not only open backdoors in platforms’ security, but also exacerbate rising trends of data weaponization.

Additionally, anti-EARN IT groups cite sweeping censorship as a possible outcome of the bill. These overreaches may shut down online communications services and thus disproportionately affect people of the LGBTQ+ community, sex workers, and protesters. Instead of undoing CDA 230, the ACLU has urged Congress to consider more direct ways in safeguarding children from being exploited online.

Of course, as evidenced by the bill’s divisiveness, this suggestion is easier said than done. But what’s both interesting and hopeful is that EARN IT has received widespread bipartisan support in Congress, garnering advocates at every point on the political spectrum. Its two chief authors, Sens. Graham and Blumenthal, are about as diametrically opposed as two politicians can be, yet their differences did not impede cooperation. Such is a rarity in today’s Congress, and suggests that even if EARN IT is not the right solution, both parties are serious about fighting child exploitation.

The same can be said for non-Congressional groups on either side of the bill. From Innocents at Risk to the staunchest of digital rights groups, everyone is in agreement that online child sex abuse is a rampant problem. And the facts are facts: COVID-19 is making it worse. But none of these groups, not even Congress, is the true arbiter of the Internet. That would be Big Tech, and so only with their cooperation—currently leaving much to be desired—can positive efforts be struck to quell the spread of CSAM.


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