A bipartisan group of senators, including Sens. Lindsey Graham and Richard Blumenthal, just introduced legislation intended to combat child exploitation online. Unfortunately, their bill not only undermines the entire point of Section 230, the law many credit for creating the internet as we know it, it also undermines its own stated goals.

The Eliminating Abusive and Rampant Neglect of Interactive Technologies Act, or the EARN IT Act, creates a commission tasked with developing recommended best practices for online services “to prevent, reduce, and respond to the online exploitation of children.” The recommended best practices are made official after approval by several agency heads, including the attorney general, and following a period of congressional review.

To its credit, the EARN IT Act notes that the best practices ought to account for the size, model, and goals of different kinds of companies as well as the “technical limitations” of implementation and the effects on competition and service quality.

A process to create “best practices” sounds benign enough, but the bill’s enforcement provisions would be catastrophic to the legal structure that governs online platforms and allows them to flourish. This is particularly true because the law applies to any “interactive computer service,” which, as defined, can include everything from Twitter to your mom’s child care blog if it allows comments.

The problem stems from how the EARN IT Act treats the decadesold internet law commonly known as Section 230.

By guaranteeing that online services are not liable for “any action voluntarily taken in good faith to restrict access to or availability of material,” the law allows online platforms to avoid liability for moderating content. For platforms that host user-generated posts, a human moderator or an algorithm will moderate, edit, or delete users’ posts based on certain criteria. This keeps the platform desirable and safe for users. Section 230 ensures that platforms are not held liable for this practice, which is crucial for small platforms that have little time or resources to moderate meticulously as well as large ones such as Twitter, with billions of posts — an impossible amount of content to moderate perfectly to the liking of every user.

The EARN IT Act would partially condition Section 230 protections on either compliance with these best practices or on a platform implementing “reasonable measures relating to” objectives listed in the bill, which include “prevent[ing], reduc[ing], and respond[ing] to the online sexual exploitation of children.” While those objectives are clearly defined, “reasonable” is not. The law also requires providers to submit evidence to the attorney general in writing that states the provider has thoroughly reviewed its implementation of the best practices and is complying with those practices.

The law says that no part of the act “shall be construed to require [platforms] to search, screen, or scan for instances of online child sexual exploitation.” However, that is almost certainly what the law would end up demanding.

No platform of small or moderate size will want to take on the legal risk and exposure resulting from loss of Section 230 protection. Thus, the bill effectively compels platforms to implement the “recommended” best practices, and the typical one that almost certainly will be included will require platforms to match images against a government database run by the National Center for Missing and Exploited Children. If platforms aren’t required to search for and address the abusive content, then the bill is essentially useless.

Furthermore, the lack of Section 230 protections, combined with the bill’s stricter standards, would likely incentivize more moderating and less freedom for posting, depending on the platform size.

As written, the EARN IT Act would apply to platforms of all sizes. Larger platforms such as Facebook would likely have to divert resources away from other goals, such as fighting abusive speech or even terrorism, toward the EARN IT Act’s best practices. Medium-sized platforms with less staff would likely have to limit the amount of people who may post to fewer, trusted users so that the burden of moderating would not be impossible. Small platforms with little or no staff will likely ban user posts altogether.

This will subvert a stated goal of the commission: to preserve competition among online platforms. It would also have a crushing effect on free expression online.

What’s more, the law could theoretically generate millions of applications. The attorney general is not technically required to go through the applications of all these platforms. That would be impossible. So, the attorney general will likely selectively focus on the applications of websites with bad reputations or, potentially, ones he just dislikes. Such a system is rife for abuse.

Finally, without enough cybersecurity expert members, there is likely to be a blind spot in the commission’s work and in the best practices it produces, and the EARN IT Act would require the inclusion of only two data security experts on the commission.

There would be much merit to a well-crafted law that effectively protects child safety online. However, the EARN IT Act doesn’t earn that honor. Disincentivizing moderation, adding excessive bureaucracy, and forgetting the vital role of cybersecurity is not how we will protect children in the cybersphere. If anything, such a bill might actually put them in more danger.

Image credit: Andrew Cline

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