{"id":14369,"date":"2022-02-17T17:41:06","date_gmt":"2022-02-17T17:41:06","guid":{"rendered":"https:\/\/mailinvest.blog\/index.php\/2022\/02\/17\/whatever-problem-earn-it-is-trying-to-solve-it-doesnt\/"},"modified":"2022-02-17T17:41:06","modified_gmt":"2022-02-17T17:41:06","slug":"whatever-problem-earn-it-is-trying-to-solve-it-doesnt","status":"publish","type":"post","link":"https:\/\/mailinvest.blog\/index.php\/2022\/02\/17\/whatever-problem-earn-it-is-trying-to-solve-it-doesnt\/","title":{"rendered":"Whatever Problem EARN IT Is Trying To Solve, It Doesn’t"},"content":{"rendered":"

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from the that-seems-like-a-problem<\/i> dept<\/h3>\n

\nI’ve already talked about the potential 1st Amendment<\/a> problems with the EARN IT Act<\/a> and the potential 4th Amendment<\/a> problems with it as well. But a recent post by Riana Pfefferkorn at Stanford raises an even bigger issue in all of this: what actual problem<\/b> is EARN IT trying to solve?
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\nThis sounds<\/em> like a simple question with a potentially simple answer, but the reality, once you start to dig in, suggests that either (1) the backers of EARN IT don’t actually know, or (2) if they do know, they know what they actually want is unconstitutional.\n<\/p>\n

\nSupporters of EARN IT will say, simply, the problem they’re trying to solve is the prevalence of child sexual abuse material (CSAM) online. And, that is<\/b> a real problem (unlike some other moral panics, CSAM is a legitimate, large, and extraordinarily serious problem). But… CSAM is already very, very illegal. So, if you dig in a little further, supporters of EARN IT will say that the problem they’re really trying to solve is that… internet companies don’t take CSAM seriously enough. But, the law (18 USC 2258A<\/a> already has pretty strict requirements for websites to report any CSAM they find to NCMEC (the National Center for Missing & Exploited Children) — and they do. NCMEC reported that it received almost 21.4 million reports<\/a> of CSAM from websites. Ironically, many supporters of EARN IT point to these numbers as proof that the websites aren’t doing enough, while also saying it proves they don’t have any incentive to report — which makes no sense at all.\n<\/p>\n

\nSo… is the problem that those 21.4 million reports didn’t result in the DOJ prosecuting enough abusers? If so… isn’t the problem somewhere between NCMEC and the DOJ? Because the DOJ can already prosecute for CSAM and Section 230 doesn’t get in the way of that (it does not immunize against federal criminal law). And, as Riana noted in her article, this very same Senate Committee just recently heard about how the FBI actually knew about an actual serial child sex abuser<\/a> named Larry Nasser, and turned a blind eye.\n<\/p>\n

\nAnd, if NCMEC is the problem (namely in that it can’t process the reports fast enough), then this bill doesn’t help at all there either, because the bill doesn’t give NCMEC any more funding. And, if the senators are correct that this bill would increase the reports to NCMEC (though it’s not clear why that would work), wouldn’t that just make it even more difficult<\/b> for NCMEC to sort through the reports and alert law enforcement?\n<\/p>\n

\nSo… is the problem that companies aren’t reporting enough CSAM? If you read the sponsors’ myths and facts<\/a> document, they make this claim — but, again, the law (with really serious penalties) already requires them to report any CSAM. Taking away Section 230 protections won’t change that. Reading between the lines of the “myths and facts” document, they seem to really<\/em> be saying that the problem is that not every internet service proactively scans every bit of content<\/b>, but as we’ve discussed that can’t<\/b> be the problem, because if that is the problem, EARN IT has a massive 4th Amendment problem<\/a> that will enable actual child sex abusers to suppress evidence!\n<\/p>\n

\nBasically, if you look step by step through the potential problems that supporters of the bill claim it tries to solve, you immediately realize it doesn’t actually solve any of them. And, for nearly all of the potential problems, it seems like there’s a much more efficient and effective solution which EARN IT does not do<\/b>. Riana’s post has a handy dandy table walking down each of these paths, but I wanted to make it even clearer, and felt that a table isn’t the best way to walk through this. So here is her chart, rewritten (all credit to her brilliant work):\n<\/p>\n

\nIf online services don’t report CSAM in violation of 2258A, and the real problem<\/u> is large-scale, widespread, pervasive noncompliance by numerous providers that knowingly host CSAM without removing or reporting it (NOT just occasional isolated incidents)<\/b>, then there’s a very long list of potential remedies:\n<\/p>\n