New federal bill could make life more dangerous for Oakland sex workers, threaten free speech and privacy

Encrypted social media allows a broad range of people to communicate safely, from organizers of protests against police brutality to LGBTQ+ youth looking for a community to reach out to when they feel unsafe. A potential new federal law threatens to take away many of these secure methods of communication. 

The Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2020 (EARN IT Act) is a federal bill that aims to put an end to child sexual abuse material by putting the responsibility on websites: They must censor or remove sexual material posted on their sites, or they will be liable for the content their users publish. 

While the bill may have the best intentions when it comes to preventing the exploitation of children on the internet, there is an unforeseen consequence to the bill: It may dramatically restrict internet privacy. 

According to ACLU lawyer Kate Ruane, if this bill passes, social media platforms would need to carefully monitor every post users make, and remove any, if needed. 

Local nonprofit Oakland Privacy said this could also mean text messages, WhatsApp messages, social media direct messages and FaceTime could be monitored by the federal government or local police departments

The EARN IT Act was introduced to the senate in March. Along with many other Democratic sponsors, California Senator Dianne Feinstein and Senator Lindsey Graham are original co-sponsors of the bill. 

“I’m trying to find a way to childproof these systems and make sure innovation continues that the people in the business know what they need to do to earn liability protection when it comes to preventing sexual exploitation of children,” Senator Graham said on the senate floor.

Listen to more of his testimony here:

One local community has already seen the effects of similar legislation. Oakland is home to a large number of sex workers, many of whom say this bill could be devastating. In 2018, the California State Senate passed into law SESTA/FOSTA, a law similar to the EARN IT Act, which censored online speech and caused people who willingly engage in sex work to take the industry underground.

According to Hacking//Hustling, a nationwide collective of sex workers, SESTA/FOSTA made it harder to find work and forced sex workers into dangerous and potentially life-threatening scenarios. And they say if this proposed bill passed, things could just get worse. 

“The internet is how sex workers and sex worker communities are keeping in touch, sharing information, and supporting each other,” said Maxine Holloway, a Bay Area sex worker and advocate. “Being able to access that type of support through social media can be very life saving. Sex work is a criminalized job. Sex workers experience a lot of stigma and a lot of violence. One of the most dangerous ways of working is working alone.”

Because of this stigma, sex working communities are often overlooked when legislation like this is on the table. 

“When you take away the internet, which we saw in SESTA/FOSTA, we saw a lot more workers turning to working outside. And when you work outside, there are higher chances of violence from law enforcement and violent clients,” Holloway said. “Taking away this idea of facilitating sex work on the internet really just makes things less safe for everyone.” 

Listen: 

The ACLU sent a letter to the committee members urging them to vote against the EARN IT Act because of its implications on vulnerable populations like sex workers and the LGBTQ+ community. 

According to Ruane, one of the lawyers who wrote the letter, while well intentioned, the bill does not address prevention of child sexual abuse material, and it gives very little protection or support to victims. 

“There’s no counseling, there’s no actual support for the victims, except potentially producing more reports of the existence of these images,” Ruane said. “It does nothing to actually help victims or to prevent the crime from happening in the first place.”

In the courts, it’s unclear that if this bill passed, what kind of evidence could be admissible at trial. Because there would be no warrant or probable cause to conduct this type of search, the evidence found by social media sites could be suppressed at trial, according to many opponents of the bill.

“So, say a platform finds child sexual abuse material on it’s platform and identifies who transmitted it and tells law enforcement about that,” Ruane said. “It’s possible that the person who transmitted that image could argue that the image was a product of an illegal search and cannot be used in trial against them.”

Ruane believes that because content moderation is so imprecise, online companies will moderate any material around the topic of sex. Ruane believes this bill to be a devastating infringement on our first amendment rights.

“It means silencing any communication involving children and anything related to sex or gender, which is going to be specifically deeply harmful to children who are questioning their gender identity, sexual identity, and sexual orientation,” Ruane said. “It’ll continue to erode sex education in this country. The internet is probably the most trusted place for most kids to be able to find that information because they can’t trust that they will get reliable information in the schools anymore.”

Many technology companies and tech nonprofits around the nation have also announced their opposition to this bill. One of those includes a local nonprofit, Oakland Privacy, a citizen volunteer organization that focuses on decreasing government surveillance in Oakland. 

“We view the EARN IT Act as a way for law enforcement to get something that they have been wanting to get for a while,” said Mike Latz-Lacabe, the Director of Research at Oakland Privacy. “It seems the ultimate goal is to gain access to encrypted communications.”

On July 2, 2020 a committee was formed to issue a report on the full chamber recommending that the bill be considered further. Only about 1 in 4 bills are reported out of the committee. 

According to Latz-Lacabe, there’s no evidence that if passed, EARN IT would actually help solve any issues it attempts to address. When SESTA/FOSTA was made into law, dangerous consequences for sex workers followed. The same organizations that warned lawmakers about how the previous bill would affect the safety of sex workers now warn how much the current bill would affect everyone’s internet privacy.