An EARN IT Alternative That Might Actually Help Children

Yesterday, a group of Democratic congressmembers, headed by online speech and privacy champion Senator Ron Wyden (D-OR), unveiled their answer to the disastrous EARN IT Act bill that I’ve been raising alarms about repeatedly this year. Dubbed the “Invest in Child Safety Act of 2020,” the bill would provide $5 billion in funds to combat online child sexual exploitation (CSE), create a new office in the White House to coordinate federal agency efforts, and double the amount of time providers must preserve evidence of CSE material (CSEM).

These provisions respond to the revelations in last fall’s New York Times article about CSEM on online platforms about a lack of funding, personnel, and resources within federal law enforcement agencies as well as the National Center for Missing and Exploited Children (NCMEC), the clearinghouse that is federally mandated to receive CSEM reports from online providers. As the Times reported, NCMEC is understaffed and overwhelmed, such that providers sometimes have already deleted evidence (in accordance with existing legal duties) by the time law enforcement is able to act on NCMEC referrals. Meanwhile, DOJ has failed to file almost all of the mandatory periodic monitoring reports on Internet crimes against children that it is required by law to file, and also, it’s diverted $6 million earmarked for cybersecurity to the administration’s xenophobic border enforcement efforts.

The EARN IT bill doesn’t address any of those problems. It doesn’t allocate a single dime to any government agency, NCMEC, or anybody else to help fight CSE online. It doesn’t address DOJ’s dereliction of duty. It doesn’t give NCMEC resources to handle the volume of CSEM it receives, or to help its employees deal with the devastating psychological consequences of their jobs. Instead, it simply blames online service providers – which, unlike DOJ, do comply with their reporting requirements under applicable law (as the Times article made clear). And, by threatening providers’ immunity from civil and state criminal liability for CSEM on their services pursuant to Section 230 (which Senator Wyden co-authored in the ‘90s), EARN IT would basically give our anti-encryption Attorney General the power to dictate the rules for online speech and to require providers to undermine everyone’s privacy and security. EARN IT is incredibly dangerous, as my blog posts have explained – especially now, during the COVID-19 crisis, as I wrote in an op-ed this week for Brookings. And, worst of all, EARN IT would not actually help protect children.

By contrast, the Invest in Child Safety bill is an attempt to respond to the actual problem. Here’s the bullet-point summary of what the bill would do, taken verbatim from Wyden's office’s press release:

• Quadruple the number of prosecutors and agents in DOJ’s Child Exploitation and Obscenity Section from 30 FTEs [full-time employees] to 120 FTEs;
• Add 100 new agents and investigators for the Federal Bureau of Investigation’s Innocent Images National Initiative, Crimes Against Children Unit, Child Abduction Rapid Deployment Teams, and Child Exploitation and Human Trafficking Task Forces;
• Fund 65 new NCMEC analysts, engineers, and mental health counselors, as well as a major upgrade to NCMEC’s technology platform to enable the organization to more effectively evaluate and process CSAM reports from tech companies;
• Double funding for the state Internet Crimes Against Children (ICAC) Task Forces; 
• Double funding for the National Criminal Justice Training Center, to administer crucial Internet Crimes Against Children and Missing and Exploited Children training programs; 
• Increase funding for evidence-based programs, local governments and non-federal entities to detect, prevent and support victims of child sexual abuse, including school-based mental health services and prevention programs like the Children’s Advocacy Centers and the HHS’ Street Outreach Program;  
• Require tech companies to increase [from 90 to 180 days] the time that they hold evidence of CSAM, in a secure database, to enable law enforcement agencies to prosecute older cases; 
• Establish an Office to Enforce and Protect Against Child Sexual Exploitation, within the Executive Office of the President, to direct and streamline the federal government’s efforts to prevent, investigate and prosecute the scourge of child exploitation; 
• Require the Office to develop an enforcement and protection strategy, in coordination with HHS and GAO; and
• Require the Office to submit annual monitoring reports, subject to mandatory Congressional testimony to ensure timely execution. 

This approach is crime-and-punishment-focused, but not exclusively so. Staffing up federal law enforcement agencies is an understandable move, given the staggering volumes of CSEM on online services. But what I found most remarkable about this bill is its devotion to two principles that, again, are utterly lacking from EARN IT: (1) accountability and oversight, and (2) prevention.

The bill requires annual reports from the newly-created White House office that detail the office’s work; evaluate “the efficacy of the use of funds” over the past fiscal year, and discuss funding priorities for the next fiscal year; and provide statistics about child sexual exploitation reports, referrals, investigations, arrests, prosecutions, and convictions. Those monitoring and reporting obligations – coupled with reporting requirements to account for where all these billions of dollars go – stand as a stark rebuke to DOJ’s reporting failures and misappropriation of cybercrime funds.

In addition, the bill makes this work accountable to the public – something totally missing from EARN IT, which flouts normal requirements regarding agency rulemaking and envisions an unelected, unaccountable commission that would work in secret but would set the rules for the entire Internet. Under the Invest in Child Safety Act, the newly-created White House office must “solicit comments from the public on the enforcement and protection strategy” the office would develop for preventing, investigating, and prosecuting CSE, as well as on the office’s funding priorities. And those annual reports would also have to include a summary of the public comments received about those funding priorities. Reporting, accountability, public input, and oversight are fundamental to the democratic process, and the provisions for them in this bill only serve to underscore what an abomination EARN IT is in that regard.

Second, it is a welcome change in the U.S.’s usual punitive approach to this fraught topic to see prevention prioritized. The Prostasia Foundation has a post analyzing the bill with some good reflections on the bill’s provisions for prevention efforts. Unlike EARN IT, the Invest in Child Safety bill targets CSE prevention and mental-health support. As the bullets above describe, in addition to earmarking $16 million for federal programs, it contemplates grantmaking at the local and tribal level for evidence-based programs and services to prevent CSE, mental health services, community education and outreach, and grants to children’s advocacy centers.

The bill also contemplates “grants to nonprofit private agencies for the purpose of providing street-based services to runaway and homeless, and street youth, who have been subjected to, or are at risk of being subjected to,” sexual exploitation, abuse, prostitution, or trafficking. In addition, the bill requires HHS to conduct a study and issue a report identifying the risk factors that make children vulnerable to CSE, identifying programs “with the greatest potential for preventing” CSE, and evaluating “promising programs” under development in the field of CSE prevention.

Those two things are really meaningful: the bill recognizes the need to do evidence-based reporting on the risk factors for child sexual exploitation, and it recognizes that housing insecurity is one of those factors. As the sex worker activism group Hacking // Hustling described in a recent report [PDF] on the impact of the 2018 SESTA/FOSTA law (which curtailed Section 230 immunity for sex trafficking offenses), “Many individuals who have histories of trading sex as a minor do so to acquire needed resources and to escape abusive living situations, facing no explicit external force, fraud, or coercion, other than the need to survive.” The report continues, “LGBTQ youth, who often face housing insecurity due to familial rejection, are seven times more likely to have experiences of trading sex for a place to stay than their heterosexual counterparts.”

Preventing child sexual exploitation from happening, rather than merely punishing offenders after the fact – and doing so through root-cause analysis – seems like a no-brainer. But it feels like something we rarely see in government policymaking when it comes to child sex abuse and sex trafficking more generally. In the United States, which has the largest prison population in the world, our knee-jerk response (particularly since Nixon’s tough-on-crime reforms of the 1970s) is usually more prisons, more police, more criminalization. That’s in Wyden’s bill, for sure. But any glimmer of an alternative way of thinking about public safety is welcome. I hope that Hacking // Hustling will weigh in on this new bill, because I’m dying to hear what they think. [UPDATE 5/11/2020: Their comment on the bill is now available here. They appreciate the bill’s prevention provisions but critique its carceral aspects, and instead put forth a policy agenda that centers “the needs of communities and families, not the criminal legal system.”]

I don’t know what will happen to the Invest in Child Safety bill. I think it presents a meaningful, positive alternative to the EARN IT disaster, and I hope that’s enough to convince lawmakers in both houses of Congress to side with this bill over EARN IT. But with COVID-19 consuming the work of the government, I don’t know if either bill has good odds of passing at this point. Maybe they cancel each other out, neither one passes, and the work of improving online child safety will keep falling to online service providers to keep rooting it out from their services, and the relevant government agencies and NCMEC will keep being under-resourced and overwhelmed.

At minimum, I hope this new bill sucks all the air out of the room and asphyxiates the EARN IT bill. I appreciate the efforts of Senator Wyden and the bill’s other co-sponsors in creating this new alternative. However, we’re not out of the woods yet. We have to keep up the fight against EARN IT. Please, keep contacting your congresspeople to let them know you oppose it. Keeping children safe deserves to be a crucial policymaking focus. But undermining encryption and cybersecurity is not the answer.