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Anti-exploitation bill advances in Senate despite free speech concerns

Critics of the bill acknowledge the urgency of these problems but say the EARN IT Act won’t help fight exploitation. In particular, legal experts worry that compelling companies to disclose information to NCMEC will create significant problems for existing prosecution. If that reporting is legally compelled, courts could rule that tech companies are acting on behalf of law enforcement, and thus subject to constitutional restrictions under the state actor doctrine. In essence, Congress can’t compel private companies to do anything that would be unconstitutional for law enforcement to do on its own.

“It’s turning social media companies into an arm of the government,” says Carl Szabo, a vice president and general counsel at NetChoice. The result would be new restrictions on how tech companies can scan for CSAM. State laws in Illinois and South Carolina directly prohibit legal requirements for such information sharing.

First introduced in 2020, the EARN IT Act previously cleared committee the following July, but stalled in the broader Senate. This time, the committee moved to mark up the EARN IT Act without a hearing, a move critics see as an effort to sidestep debate over its contents.

“They recognize that the more time people have to talk about this bill, the more time they have to identify its fundamental problem,” Szabo said.