Content Moderation

06/25/2020

NetChoice Releases “The EARN IT Act’s Collision Course With The Fourth Amendment,” Addressing The Bill’s Serious Fourth Amendment Implications

NetChoice
Carl Szabo Vice President and General Counsel

Washington, D.C.–Today, NetChoice, a trade association that advocates for free expression and free enterprise online, released a report on the EARN IT Act’s serious Fourth Amendment problems.

“Although the EARN IT Act is aimed at protecting children, it hands child predators a reusable ‘Get Out of Jail Free’ card,” said Carl Szabo, Vice President and General Counsel at NetChoice.

“By coercing tech businesses into searching for illegal material, this bill transforms those private companies into “government agents” and the National Center for Missing and Exploited Children into a “government entity,” subjecting both to the Fourth Amendment. Because these searches would be conducted without a warrant, the evidence will likely be excluded from trial, rendering stacks of evidence of child exploitation useless in locking up dangerous criminals,” continued Szabo.

“The EARN IT Act would kill the current constitutionally sound practice of tech companies voluntarilysearching for and reporting child exploitation. Today, tech companies report millions of suspected instances of child sexual abuse material; if EARN IT becomes law, all that evidence would be at risk of exclusion,” said Szabo.

According to the NetChoice Report:

  • Under existing law, companies must flag and report child sexual abuse material (CSAM) to the National Center for Missing and Exploited Children once they know of its existence.
  • Current law does not mandate searches; it regulates what to do once CSAM is found.
  • In Skinner v. Railway Labor Executives’ Association, the Supreme Court held that the government implicates the Fourth Amendment when it encourages private parties to search for evidence.
  • Because EARN IT encourages–even coerces–private businesses to search for CSAM, it puts any evidence found at risk of exclusion from trial.

Put simply, EARN IT would simultaneously make the internet less safe for children and make prosecution of child predators even harder.

 

The full report can be found here

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