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How EARN IT Could Give Abusers A Get Out Of Jail Free Card: By Making Evidence Inadmissible

We touched on this a little bit in our earlier post about the mistakes senators made during the markup, but it’s a little wonky, so it deserves a deeper exploration. Here’s a good short description from Kir Nuthi in Slate:

As it stands, most companies that host online content voluntarily turn over huge amounts of potential evidence of child abuse to the National Center for Missing and Exploited Children. Because private companies search for this evidence voluntarily, courts have held that the searches are not subject to the Fourth Amendment. But the EARN IT Act threatens to disrupt this relationship by using the threat of endless litigation and criminal prosecution to strongly pressure private companies to proactively search for illegal material. Thanks to how the EARN IT Act amends Section 230, companies are more exposed to civil and criminal liability if they don’t follow the government’s “or else” threat and search for child sexual abuse material.

Currently, tech platforms have an obligation to report but not search for suspected instances of child sexual abuse material. That’s why searches today are constitutional—they’re conducted voluntarily. By encouraging and pressuring private sector searches, the EARN IT Act casts doubt on every search—they’d no longer be voluntary. Thus, the Fourth Amendment would apply, and evidence collected without a warrant—all child sexual abuse material in this case, since private parties can’t get a warrant—would be at risk of exclusion from trial.

The Supreme Court has long held that when the government “encourages” private parties to search for evidence, those private parties become “government agents” subject to the Fourth Amendment and its warrant requirement. That means any evidence these companies collect could be ruled inadmissible in criminal trials against child predators because the evidence was procured unconstitutionally.

Put simply, thanks to the EARN IT Act, under the Exclusionary Rule, defense attorneys could argue that evidence was collected in violation of the Fourth Amendment and should be excluded from trial. As a result, the bill could lead to fewer convictions of child predators, not more.

In short: under the current setup, companies can search for child sexual abuse material (CSAM) and if they find it they must report it to NCMEC (and remove it).