One of the common mistakes made in the adult entertainment industry is business operators not paying close enough attention to potential legal threats on the horizon. For example, although legal experts such as myself had been warning the adult entertainment industry about FOSTA/SESTA for years prior to its introduction in 2017, many were seemingly shocked and unprepared when it became law on April 11, 2018.
Once again, a United States law has been introduced that would have substantial effects on virtually every adult entertainment business operator.
Given that service providers could be potentially sued and held liable for user content and posts, the EARN IT ACT will most likely force platforms to over-censor speech out of an abundance of caution due to fear of endless litigation.
On March 5, 2020 the world was introduced to the Eliminating Abusive and Rampant Neglect of Interactive Technologies Act (EARN IT Act). The EARN IT ACT was introduced by senator Lindsey Graham and has bipartisan support and has been unanimously voted forward by the Senate Judiciary Committee. It is yet another attempt to shave the protections offered by Section 230 of the Communications Decency Act, (i.e., the immunity provided to websites, internet companies, blogs, forums, hosts, social media platforms and more from most civil lawsuits and state criminal law charges), which would force service providers to comply with “best practices” for fighting online child sexual exploitation. If the service provider is deemed to not be in compliance with the so-called best practices, it would lose Section 230 protections.
Shortly before the EARN IT ACT was sent to the Judiciary Committee, the proposed bill was modified to include the use of state-by-state laws and the provision requiring service providers to undergo a certification process was removed. This would create an unconstitutional nightmare scenario where service providers will have to make sense of 50 different sets of standards of liability that will inevitably contradict one another to some degree.
Supporters of the EARN IT ACT contend that the bill is all about protecting children; however, a growing number of legal experts and organizations that have reviewed the bill find that very hard to believe. It is indisputable that child sexual exploitation is a serious concern that must be addressed as an international priority. The United States, though, already has an arsenal of laws at its disposal to combat child sexual exploitation. Section 230 does not and has not ever prevented the prosecution of anyone breaking federal criminal law.
Since the Department of Justice already has the ability to prosecute a provider that is not complying with applicable law, how does holding Section 230 immunity over a service provider’s head change anything? This is precisely where the arguments of EARN IT ACT proponents fail. The reality is that the EARN IT ACT is a direct attack on freedom of speech and gives the government more power in being able to regulate what content appears and doesn’t appear on the internet. The government can attempt to rationalize the EARN IT ACT however it wishes but it does not change the fact that the EARN IT ACT violates at minimum the 1st and 4th amendments of the United States constitution.
The first and most obvious question that many people have been asking is “what are these ‘best practices’ going to be?” Unfortunately, the answer to that question remains a mystery. What we do know is that pursuant to the EARN IT Act, these “best practices” will be developed privately by a 19-member commission. That commission will be comprised of law enforcement representatives led by the attorney general William Barr and will not include actual sex workers or adult platforms. These 19 members will not be elected, thus depriving the citizens of the United States to vote for some very influential positions of power. Ultimately, the attorney general will have the final authority to approve or reject any of the “best practices” developed by the 19-member commission.
The second most common question is how internet operators are going to react to the EARN IT ACT, assuming it becomes the law. Given that service providers could be potentially sued and held liable for user content and posts, the EARN IT ACT will most likely force platforms to over-censor speech out of an abundance of caution due to fear of endless litigation.
The next most common question related to the EARN IT ACT is in relation to end-to-end encryption. The EARN IT ACT does not explicitly ban end-to-end encryption, but it is presumed (and most experts) concur that the 19-member commission, in its “best practices,” will condemn end-to-end encryption and push forward Attorney General Barr’s anti-encryption agenda. It is anticipated that the “best practices” will include a requirement that platforms have the ability to view or review encrypted data and/or provide law enforcement with access to the encrypted data (like a backdoor).
Major service providers have already expressed how much they detest the EARN IT ACT, and companies including Signal have threatened to leave the U.S. market should it become valid law. Thus, the U.S. could potentially deprive its citizens of a forum for free speech and a technology that is enjoyed by consumers and businesses alike.
There is a little good news, however. The EARN IT ACT has not passed yet, nor has it been brought to the Senate floor for a full vote — this means that there is still time to fight this disaster bill. So, what can you can do to assist in bill’s failure?
1. Contact your senator via telephone, email, letter or fax and voice concerns about the bill. This is election season, so make sure that you indicate that you will not support or vote for any candidate that supports the EARN IT ACT.
2. Get on social media and spread the word that the EARN IT ACT will be a travesty for free speech on the internet and encourage all of your followers to immediately reach out to their lawmakers and voice their opposition to the bill.
3. Comment publicly on your representatives’ social media presence and ask them how they can support this bill if they truly value and support free speech.
This article does not constitute legal advice and is provided for your information only and should not be relied upon in lieu of consultation with legal advisors in your own jurisdiction. It may not be current as the laws in this area change frequently.
Corey D. Silverstein is the managing and founding member of Silverstein Legal. His practice focuses on representing all areas of the adult industry and his clientele includes hosting companies, affiliate programs, content producers, processors, designers, developers, operators and more. He is licensed in numerous jurisdictions including Michigan, Arizona, the District of Colombia, Georgia and New York. Contact him at MyAdultAttorney.com, corey@myadultattorney.com and (248) 290-0655.
