Jul 5, 2020 8:00 AM

Congress Needs to Make Silicon Valley EARN IT

More narrow than its critics contest, the act would help stop tech giants from prioritizing profits over safety.

Expressing excitement for his soon-to-arrive “new material,” a man shared with his online network of child sexual abusers an in-utero picture of his unborn child. This is just one of far too many horror stories I have heard from investigators at the Department of Justice’s Child Exploitation and Obscenity Section.

Children as young as 8, 4, and 2, and, increasingly more often, pre-verbal infants, are subject to horrific, unspeakable, and gut-wrenching sexual abuse that is then broadcast to a global audience. Last year alone, the National Center for Missing and Exploited Children received nearly 17 million reports to their CyberTipline. This haul exceeded 27 million images and 41 million videos. The average victim is 8 years old. Sadly, these reports constitute only a fraction of the global child sexual abuse trade.

For the past decade, a dynamic group of researchers, child-safety advocates, legislators, and technology sector experts have been working ardently to develop and deploy technology to protect children online. Among our many efforts includes the widely implemented and effective photoDNA program that was launched in 2008 and is today used globally to find and remove child sexual abuse material (CSAM). This program extracts a distinct signature from uploaded images and compares it against the signatures of known harmful or illegal content. Flagged content can then be instantaneously removed and reported.

Frustratingly, for the past decade, the technology sector has been largely obstructionist and full of naysayers when it comes to deploying new technologies to protect us. As a result of this deliberate neglect, the internet is overrun with child sexual abuse material, illegal sex trade, nonconsensual pornography, hate and terrorism, illegal drugs, illegal weapons, and rampant misinformation designed to sow civil unrest and interfere with democratic elections. This is the landscape facing us as we consider the Senate Judiciary’s Eliminating Abusive and Rampant Neglect of Interactive Technologies Act (EARN IT).

Section 230 of the 1996 Communications Decency Act established that—with only a few exceptions—interactive computer services (e.g., Facebook, Twitter, YouTube) are not liable for user-generated content. This act has given Silicon Valley an unprecedented gift in the form of a broad shield from accountability. Rather than acting as responsible “Good Samaritans” as Section 230’s drafters intended, technology companies have allowed for their services to be weaponized against children, civil society, and democracy, all the while profiting annually to the tune of billions of dollars.

The EARN IT Act is the culmination of years of cajoling, pleading, and threatening the technology sector to get its house in order. They have not, and so now is the time for legislation to rein them in. In its original form, this act would have established a commission tasked with outlining best practices for responding to the global pandemic of the online sexual exploitation of children. Failing to implement these practices would mean that platforms would lose some Section 230 liability protection. An amendment earlier this week, however, made implementation of the commission’s recommendations voluntary, undercutting Silicon Valley's talking points about encryption, threats to the fourth amendment, and overreach by the Attorney General. In its amended form the Act leans into the skepticism of Section 230 and takes the needed step of fully removing blanket immunity from federal civil, state criminal, and state civil CSAM laws. In so doing, technology platforms will be treated like other entities when it comes to combating child sexual exploitation.

The EARN IT Act was unanimously approved on Thursday by the Senate Judiciary and will now be taken up by the full Senate. Despite overblown claims to the contrary, this act does not dismantle Section 230’s legal shield. The act is narrow but important. It will begin to realign the technology sector with other sectors that are routinely held to regulatory oversight, and are held liable when their products or services enable or cause harm.

As was true a decade ago, during the development of photoDNA, criticism of the EARN IT Act has been off the mark, with a number of issues being conflated. Critics contend the act would inevitably undermine encryption and thus privacy. This argument, however, is not based on the text of the act—which makes no mention of encryption. Members of the Senate Judiciary have explicitly stated that this act is not an attack on encryption nor is protection of Section 230 contingent on any aspect of encryption.

Critics also conflate point-to-point encryption with end-to-end encryption. The former allows for secure financial and personal communications by encrypting data on a device and enabling the controlling service (e.g., a bank or Facebook) to decrypt them. This type of encryption does not interfere with programs like photoDNA. By contrast, in an end-to-end encrypted system, content is encrypted on a device and can only be decrypted by the intended recipient and no one else, including the controlling service or the government, even under a lawful warrant. End-to-end is popular in messaging apps like WhatsApp. Despite critics’ claim that the EARN IT Act will dismantle end-to-end encryption, programs like photoDNA and anti-grooming technology can be adapted to work within this system.

Critics also argue that any regulation will inevitably stifle innovation. The history of the technology sector belies this point. In 2001, for example, when the DOJ stepped in to limit Microsoft’s ability to leverage their dominance in the internet browser wars, space was created for Google to thrive and eventually dominate. Countless small startups, concerned about their social responsibilities, use photoDNA despite limited resources. Competition and accountability can coexist.

The critics were wrong a decade ago when they argued that photoDNA would restrict speech and privacy. These same critics are again wrong when they argue that modest legislation will lead to burdensome restrictions.

The titans of tech continue to prioritize profits over our safety. It is time for the government to step in and regulate the industry and begin to mitigate the unspeakable harm being perpetrated on our children. The EARN IT Act is a reasonable and sensible first step in this direction.

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