The Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2023 (EARN IT Act, S. 1207, H.R. 2732) removes immunity for social media and technology companies that knowingly facilitate the distribution of child sexual abuse materials (CSAM) on their platforms. The bill updates existing federal statues to use the term “child sexual abuse material” instead of “child pornography.” The term child pornography fails to describe the true nature of the images and undermines the seriousness of the abuse. Pornography implies consent, and children under the age of 18 cannot legally consent to the creation or sharing of sexually explicit images of themselves. So, these images are, by definition, evidence of a crime.
Currently, the technology industry maintains a liability protection shield for third-party content. The Communications Decency Act of 1996 contains Section 230 that offers near-total immunity to technology companies. As a result, victims have no way to force tech companies to remove content posted on their sites. This bill removes the immunity specifically regarding child sexual exploitation, by allowing for state civil and criminal lawsuits, as well as federal civil lawsuits, if companies advertise, promote, distribute, or solicit child sexual abuse material. There is precedent. In 2018, Congress removed technology companies’ liability protections for facilitating sex trafficking on online platforms. On May 18, 2023, the U.S. Supreme Court ruled on Gonzalez v. Google but failed to clarify Section 230, thus leaving the issue up to Congress. It is time for Congress to act to protect children.
The EARN IT Act also establishes the National Commission on Online Child Sexual Exploitation Prevention to develop best practices for interactive computer service providers to prevent, reduce, and respond to the online sexual exploitation of children. These best practices will enable law enforcement to obtain evidence to prioritize actionable cases and save children. The bill also would require the Department of Justice’s Office of Juvenile Justice and Delinquency Prevention to develop and support innovative tools to combat online child exploitation.
The bill makes changes to the reporting requirements for electronic communication service providers and remote computing service providers who report apparent instances of crimes involving the sexual exploitation of children to the National Center for Missing and Exploited Children. The bill requires providers to report facts and circumstances sufficient to identify and locate each minor and each involved individual. The bill also increases to one year the amount of time that providers must preserve the contents of a report. These provisions strengthen the hand of law enforcement and the individuals and families that fall victim to these crimes. By removing liability protections for third-party content, Congress will certainly encourage the technology industry to take action to prevent online child sexual exploitation.
The Strengthening Transparency and Obligations to Protect Children Suffering from Abuse and Mistreatment Act of 2023 (STOP CSAM Act, S. 1199) also has bipartisan support and establishes new statutory authority to hold offenders accountable, specifically the production and live streaming of the child sexual abuse materials. The bill supports victims and increases accountability and transparency for online platforms. Technology companies that fail to remove CSAM and related imagery after being notified about them would face significant fines. They also would be required to produce annual reports detailing their efforts to keep children safe from online predators, and any company that promotes for facilitates online child sexual exploitation could face new criminal and civil penalties.
In 2022, 31.9 million reports of child sexual abuse material were made to the Cyber Tipline hosted by the National Center for Missing & Exploited Children (NCMEC), the nation’s clearinghouse and comprehensive reporting center for all issues related to the prevention of and recovery from child victimization. This is an 89 percent increase from pre-pandemic levels. Technology companies have photo DNA technology but have not been held accountable for their platforms. These bills provide a pathway forward to protecting our children.