Ask Your Representatives to Protect Children and the 4th Amendment: Say NO to the STOP CSAM and EARN IT Acts
One of the easiest ways for politicians to do something popular, is to claim, sincerely or insincerely, that they're doing it to "protect the kids." Sometimes, it has to fall to civil society to figure out whether the latest "protect the kids" bill will actually protect kids - or, worse, will actually harm them.
Those bills intend to address a serious problem: rampant child sexual abuse and the online proliferation of child sexual abuse material (CSAM). But by forgetting, or not knowing, how the Fourth Amendment works, the lawmakers devising them are unintentionally making it harder for online platforms to search for CSAM and remove it; and they're making it legally unwise for platforms to host any kind of content that deals with adult themes or human sexuality, or to offer customers end-to-end encryption of user communications, like WhatsApp or Signal do.
Our analysis below explains how.
What STOP CSAM and EARN IT Propose:
Section 5 of the STOP CSAM Act of 2023 creates a "duty to report" for electronic service providers (ESPs), who would "have a legal obligation to report within 60 days any activity on their platforms, services, or networks that indicates child sexual abuse or proliferation of child sexual abuse material." These reports would be sent to the CyberTipline of the National Center for Missing and Exploited Children (NCMEC), and would require as much identifying information as available. Failure to submit reports within 60 days upon discovery of CSAM results in heavy criminal and civil penalties.
The EARN IT Act would create a 19 member commission led by the Attorney General. It is tasked with recommending "best practices that providers of interactive computer services may choose to engage in to prevent, reduce, and respond to the online sexual exploitation of children." ESPs would then have to certify compliance with these measures to avoid criminal liability.
So, what's wrong with that?
Both STOP CSAM and EARN IT presume that companies are not adequately reporting on CSAM proliferation. But this is far from the reality. According to data from the NCMEC, there were 21.7 million reports of child sexual exploitation made to the CyberTipline. How many of these reports came from ESPs? 98.98% - almost all of them. The PROTECT Our Children Act of 2007 also created the Internet Crimes Against Children (ICAC) task force, which conducted 136,800 investigations in 2021 alone.
ESPs do this voluntarily. If they did it under pressure, or under a requirement from the government, they would be acting as "government agents." The "duty to report," as well as the criminal and ciivil penalties for failure to do so, in both the STOP CSAM and EARN IT Acts, does away with the voluntary nature of their current CSAM reporting. And if they're instead acting as government agents - the Fourth Amendment will require that they get a warrant, based on probable cause, before searching.
So, they'll either get warrants (and will have to vastly reduce the number of searches they perform), or prosecutors will go to court with the fruits of thousands of unconstitutional searches, and the courts will have to let thousands of online distributors of CSAM walk.
If we truly want to tackle CSAM possession and distribution on the internet, we need to maintain the delicate legal balance that allows internet service providers to scan for this harmful material while following Fourth Amendment law. Another bill, the Kids Online Safety Act (KOSA), while containing some very harmful other provisions, does contain a couple of good ideas: namely, a public interest research program that would investigate how children are harmed online using data from covered platforms, and a provision strengthening parents' ability to wipe their children's data from online platforms. Lawmakers can pass laws that will help; but EARN-IT and STOP-CSAM are not those laws.
Please contact your lawmakers and tell them to preserve the ability of platforms to search pro-actively for CSAM, by voting against EARN-IT and STOP-CSAM.