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EARN IT Act Gives Predators a Way Out, Undermines American Security Online

Despite lawmakers considering the latest iteration of the EARN IT Act, they still have not addressed major constitutional, privacy and security flaws. Nor have they held a substantive hearing on the proposal in the three years since first introducing it. 

In response, NetChoice sent a letter to the U.S. Senate Judiciary Committee today, asking Senators to oppose this new version of the EARN IT Act. 

“Lawmakers must reject this latest proposal. Unfortunately, this new iteration of the EARN IT Act yet again fails to address consistent warnings about how the law will violate constitutional protections, undermine American data privacy and security and jeopardize criminal prosecutions by violating the Fourth Amendment,” said NetChoice Director of State and Federal Affairs Amy Bos. 

“If Congress is serious about protecting Americans and children online, alternative solutions like a uniform federal data privacy law or implementing digital safety education would be constitutional and much more fruitful for Americans of all ages,” Bos continued. 

You can read our letter to Congress asking lawmakers to oppose the EARN IT Act here

Why EARN IT is harmful to Americans, especially children:

  • EARN IT would jeopardize convictions of child abusers online.
    • It eliminates independent motivation and lack of government encouragement, control, or direction in stopping child sexual abuse material (CSAM), which has been the key to enabling successful prosecutions of CSAM criminals. Under the exclusionary rule, defendants will try to suppress the best evidence of their criminality—CSAM—because EARN IT will have transformed a private search into a government search.
  • It transforms online services, which are currently private actors, into state actors, which violates the Fourth Amendment and will result in critical evidence being suppressed in CSAM trials. 
  • Data breaches over the last few years have showcased the increased need to encrypt data to keep Americans safe.
    • By making encryption a “dependent” rather than “independent” basis for liability, the EARN IT Act permits the use of crucial security measures to be used as evidence of wrongdoing. If encryption may be wielded against providers so casually, the incentives to use that tool will be severely diminished. 
  • Because the EARN IT Act would undermine the sophisticated tools and protections online services have created to keep American data safer and more secure, Congress should oppose this bill.
  • In 2022, a survey by The Washington Post found that 81% of experts opposed the EARN IT Act “​​because of concerns it would hamper adoption of strong encryption and make people less safe online.”

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