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Protecting Children Through the EARN IT Act

The U.S. Senate Judiciary Committee recently unanimously approved a bill called the EARN IT Act, which seeks to address the widespread availability of child sexual abuse material on digital platforms, and the use of those platforms to entire, groom, traffic, and abuse children.

Our friends at the National Center on Sexual Exploitation (NCoSE) have worked hard to get this landmark bill through Congress, and NCoSE’s Director of Public Policy Dr. Eleanor Gaetan joins Traci DeVette Griggs on this week’s episode of Family Policy Matters to explain the EARN IT Act, and why it is so necessary.

NCoSE began its work on the EARN IT Act in July 2019, by helping the Senate Judiciary Committee hold a hearing called “Protecting Innocence in a Digital World.” In March of this year, the EARN IT Act officially became a bill, aimed at “holding Big Tech accountable,” says Gaetan. Previously, tech companies had immunity from whatever happened on their platforms, but earlier this month, all 22 Senators on the Judiciary Committee decided tech companies needed to lose their immunity. “The states and victims have the right to hold accountable tech companies for child sexual abuse material, just like Walmart is held accountable if you slip on their floor and fall; it’s their fault.”

As it is now, the EARN IT Act would all victims and states to “fight back by taking companies to court for the harm they cause,” as well as allow each state to “set standards that are appropriate for their residents.” It would also create a National Commission on Online Child Sexual Exploitation Prevention, aimed at creating guidelines that will help judges, state legislatures, and prosecutors address this issue.

But Dr. Gaetan warns that this bill will not become law without public support. “Right now, I think there are 12 co-sponsors in the Senate. We need more like 30 co-sponsors before the leadership will bring it up. So, press your Senators to co-sponsor it. It’s the only piece of legislation that really addresses the online risks to kids.”

Tune in to Family Policy Matters this week to hear Dr. Eleanor Gaetan share more details about the EARN IT Act and preventing child sexual exploitation.

Family Policy Matters
Transcript: Protecting Children Through the EARN IT Act

TRACI GRIGGS: Thanks for joining us this week for Family Policy Matters. Technology companies may soon be held more accountable for the part they play—even inadvertently—in child sexual exploitation. The U.S. Senate Judiciary Committee unanimously approved a bill called the EARN IT Act, which seeks to address the widespread availability of child sexual abuse material on digital formats and the use of those platforms to entice groom, traffic, and abuse children. EARN IT stands for Eliminating Abusive and Rampant Neglect of Interactive Technologies.

Dr. Eleanor Gaetan is the Director of Public Policy at the National Center on Sexual Exploitation, which has been working very hard on this landmark bill. She joins us today to talk about the details of the EARN IT Act and what’s next for its passage.

Dr. Gaetan, welcome to Family Policy Matters.

DR. ELEANOR GAETAN: Thank you so much, Traci.

TRACI GRIGGS: First of all, how big of a problem is child exploitation here in the United States?

DR. ELEANOR GAETAN: We don’t know exactly how many kids are affected, but certainly thousands, if not tens of thousands, of children are impacted. But remember there are different forms of child sexual exploitation; let’s focus on just two. Child pornography, which we now call “child sexual abuse material” or CSAM, has absolutely exploded on the Internet. Why? Well, the common observations are that it’s now available, affordable, and anonymous. There’s also sex trafficking, and that includes the sexual exploitation of children, regardless of whether that 16-year-old, let’s say, wanted to work in a strip club. That’s considered sex trafficking because no one under 18 has that ability to consent to their own exploitation in the commercial sex industry.

TRACI GRIGGS: This bill targets technology companies. So, what role do they play in the exploitation of children?

DR. ELEANOR GAETAN: Unfortunately, Big Tech is a big perpetrator in this arena. These are some of the biggest, wealthiest US-based global companies, and unfortunately, the tech giants simply don’t do enough to protect the safety of our kids online. Instead of guiding and preventing predators from, for example, being able to message kids on Facebook messenger, Facebook spends more money trying to encrypt Facebook Messenger, and that will make the risks harder to find. Primarily what the platforms like Instagram, let’s say, or Snapchat do is that they allow interactive conversations in real time with people that our kids don’t even really know if they’re talking to another kid, right? So, a typical predator would identify themselves as someone in high school too, and very often they’re not. So, we have too many cases in which predators are lurking on platforms or even on gaming platforms, and have access to kids, engage with kids, and for example, ask them to take pictures of themselves, and then use those pictures as leverage or control to get more images or to invite the person to meet elsewhere.

TRACI GRIGGS: Let’s move on to what we’re trying to do about that or what your organization is trying to do. Tell us about that Senate Judiciary Hearing in 2019 that started the development of this bill.

DR. ELEANOR GAETAN: Almost exactly a year ago, the National Center on Sexual Exploitation helped the Senate Judiciary Committee produce a hearing with experts from around the country, and it was called “Protecting Innocence in a Digital World.” Everyone attended; it was a hot July day, and Democrats and Republicans all came to this hearing to discuss the dangers to kids and the lack of best practices online. We heard testimony from a great organization, Protect Young Eyes, for example, that pointed out why is it so hard for us parents to set up the filters, maintain the filters. Do you know the app TikTok, its settings, you could set the TikTok app for privacy, 30 days later that evaporated, and a parent or guardian or an adult in the kid’s life had to reset those filters. And it’s complicated. There are multiple steps to take to set a filter. So, different allies were pointing out the fact that companies should do more to make these filters easy to use, readily available. Why aren’t they? These are the kinds of topics that were discussed, and the Senators were visited by the revelation that there are so few protections against predatory behavior on the Internet. There are unintended consequences in the law, and one really grave unintended consequence flows from the Communications Decency Act of 1996. That should really be called the Communications Indecency Act because it gave immunity to tech companies for whatever happened on its platforms.

There’s another law that passed in 1998, Children’s Online Privacy Protection Act, that established the age of digital adults at 13. Now we know that 13 is really too young for digital adulthood. 15, 16, 17-year-olds are not adults in any other way, so why are they adults online? Anyway, last July, the Senate started looking into this, and by March, just this past March, they produced a bill called EARN IT, the EARN IT Act. Basically it said, companies need to earn the immunity that they had received through this CDA section 230. We considered it a good bill, but it did have a safe-harbor provision. It said that companies that could demonstrate that they were working hard—they were doing their best—could keep that immunity. What happened was that Big Tech really kind of overplayed their hand. They fought this really reasonable solution tooth and nail. They claimed the sky was falling, and they were doing very little to prevent that stuff. So, as a result of really Big Tech fighting against a reasonable solution, bipartisan in fact, unanimously 22 Senators came together on July 2nd and said, you know what, they need to lose immunity, totally lose immunity for this child pornography. There are millions and millions of images online, and they’re going to lose immunity on that stuff. The bill was made stronger earlier this month because they’re not going to play games anymore. The states and victims have the right to hold accountable tech companies for child sexual abuse material, just like Walmart is held accountable if you slip on their floor and fall; it’s their fault. And in our country, the way we get accountability is that you can bring cases of harm in the courts.

TRACI GRIGGS: Okay. So is that, practically speaking, how the EARN IT Act is going to protect children by allowing parents to sue, or are there other ways as well?

DR. ELEANOR GAETAN: Both victims and states can now fight back by taking companies to court for the harm they cause. It also creates that immediate threat of enforcement. Also, the new bill allows the states, our 50 states plus D.C., to have the right to set standards that are appropriate for their residents.

TRACI GRIGGS: How does the EARN IT Act balance the need to protect children with First Amendment Privacy and Contract Rights? I know this is a topic that we talk about a lot in a lot of different arenas.

DR. ELEANOR GAETAN: Right. Well, some of us remember when pornography was a physical thing, mainly magazines, for example, and it still is illegal to sell those to minors. But did that interrupt or undermine free speech? Of course not. This bill puts physical obscenity and Internet obscenity on the same level.

TRACI GRIGGS: Are the tech companies still speaking out in opposition to this legislation as it moves through, and who else might be opposed to this?

DR. ELEANOR GAETAN: Yeah, we’ll see. It was just two weeks ago that the Senate Judiciary Committee came together and did what they call, “marking up the bill,” and really strengthened it. Strangely, most of the tech press called it a “watering down of the bill.” I don’t understand that, might be just a misunderstanding because the bill also creates a new National Commission on Online Child Sexual Exploitation Prevention. It’s a mouthful, but it really goes to the problem that change is so rapid and things are happening so fast and risks pop up overnight. Like I’d say, TikTok, don’t let your kids have TikTok on their phones. It’s a really dangerous app, and it pops up overnight, right? So, that National Commission, this new National Commission, will be able to with the help of engineers and advocates and tech reps create guidelines for all of us that will help guide judges and state legislatures and lawyers, prosecutors that is still in the bill. It used to have more power in the first version of the bill. So, I guess Big Tech is saying that because that new commission is less powerful, the bill was watered down. Absolutely not, it’s strengthened because it really just cuts the ties of the immunity that were protecting Big Tech for too long, especially on child pornography.

TRACI GRIGGS: So, are there other effects on human trafficking, technology, the adult film industry, and other similar activities that we’re going to be seeing if the EARN IT Act becomes law?

DR. ELEANOR GAETAN: Well first, Traci, please don’t talk about the adult film industry. That’s a phrase that normalizes the sexual exploitation of women and kids. Adults’ film industry was invented by pornographers. That aside, let’s hope that the federal government begins prosecuting some of these platforms, for example, MindGeek, the world’s biggest platform of obscenity and pornography. We have found hundreds of instances of sex trafficking and child sexual abuse material uploaded and freely accessible. There are no verifications that there’s consent. It’s despicable that our government hasn’t touched it. Why not? We’re not sure.

TRACI GRIGGS: Sure. Are there other effects then that we will see that will come from passing the EARN IT Act?

DR. ELEANOR GAETAN: Yes. Hopefully, we’re going to get more accountability. And this new Commission will begin creating reasonable guidelines that help all of us manage this power of the Internet because right now it’s like the “Wild Wild West.”

TRACI GRIGGS: So, we still have several steps to go before the EARN IT Act would become law. What are those? And what do you think is the likelihood that the bill will become law?

DR. ELEANOR GAETAN: This bill will become law if everyone listening to this broadcast contacts their Senators and says, “Please co-sponsor this; we need to protect our kids.” Right now, I think there are 12 co-sponsors in the Senate. We need more like 30 co-sponsors before the leadership will bring it up. So, press your Senators to co-sponsor it. And the House side will have to deal with it too. So, we’re just hoping the Senate really gets behind this. It’s the only piece of legislation that really addresses the online risks to kids. And if we get it through the Senate, the House will see that power and want to move too.

TRACI GRIGGS: So, where can parents go to learn more about all of these important issues?

DR. ELEANOR GAETAN: You know, an ironic thing is you won’t find anything from the Google search. One of the tragedies of the power of Google is that they can control the algorithm. You Google search “EARN IT Act,” and you will get pages of negativity. And it really is kind of an eye-opener on the power of Google to shape the information you receive. Talk about curbing your First Amendment Rights. Write to us, write to, or go right to the Senate Judiciary page. If you Google “Senate Judiciary Committee,” they have some excellent material describing the bill.

TRACI GRIGGS: In the meantime, while we’re waiting to see what happens with this, what can parents do to be proactive on this issue?

DR. ELEANOR GAETAN: I think experts agree, the most important thing is to be engaged with your children. And when I talk about children, I’m thinking of mine, or you know in their teens. Kids up to 18, their brain isn’t well enough developed to make executive decisions about what’s good for them and what’s not good for them. So, talking to kids about the inevitable fact that they will see pornography, they will run into it on the Internet, and they need to turn away. It’s dangerous. It harms the brain; that is brain science; that is proven. But you need to be engaged with your kids, also need to know what are they looking at? What searches are they doing? What apps are they using and ask them to show you how they’re using those apps. Be curious; be engaged. And then when you tell your kids, you know, if you see people who are naked online, that’s not good for you. Come tell me about it. And you know, you have to be nonjudgmental about that kind of thing for your kids to trust you, consult with you, show, and share with you. That’s our way of prevention. It can be awkward. There can be awkward conversations, but they’re a “must do” because something like 80 percent of all kids have run into pornography by the time they’re 14 online.

TRACI GRIGGS: Well, Dr. Eleanor Gaetan, Director of Public Policy at the National Center on Sexual Exploitation, thank you so much for being with us today on Family Policy Matters.

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