EARN IT and the Danger of Overreach

There is an unfortunate history in this country of using the possible abuse of children as an excuse for the unconditional abuse of online civil liberties.

By Anatole d’Ecotopia

First there was the Child Online Protection ACT (COPA) in 1998, then the Children’s Online Privacy Protection  Act (COPPA) and Children’s Internet Protection Act (CIPA) in 2000, and most recently the “Allow States and Victims to Fight Online Sex Trafficking Act” (FOSTA) in 2017. Now we are faced with the potential latest/greatest: “Eliminating Abusive and Rampant Neglect of Interactive Technologies” (EARN IT).

What these various legislative acts have in common beside an ostensible interest in protecting children and increasingly out of control names is an even more out of control erosion of civil liberties — accompanied by a near-total lack of law-enforcement oversight. What they also have in common is near-total redundancies that do a far better job of actually protecting children from exploitation and abuse — without opening the door to constitutionally-questionable surveillance practices. Ultimately, the act would prohibit proper encryption used in products like Signal and Protonmail. Signal has threatened to leave the U.S. market if the act passes.

The principal aim of EARN IT is the creation of an 18 member commission to formulate “best practices” for the ostensible purpose of combating child pornography/online sexual abuse. This commission would consist of three cabinet-level officials or their designated representative representatives, and 15 assorted members of congress with credentials in either law enforcement, constitutional law, consumer protection, or abuse victim counseling (they can also themselves be survivors of abuse). Recommendations of the commission would then be reviewed by the same three cabinet officials who happen to sit on the commission: the Attorney General, the Director of Homeland Security, the Chairman of the Federal Trade Commission, which could then recommend these practices for “fast track” passage into law.

Artwork by Angeli Landayan

These recommended best practices could include virtually anything, and would almost certainly include the enforced provision of encryption backdoors to law enforcement agencies — and in the same way that cops have been known to plant a gun at a crime scene when needed, it is a fairly safe assumption the agencies empowered by these recommendations would find ways to ensure a kiddie porn image or two could be “found” on any server or network they wanted to compromise.

At a time when the threat of pandemic has forced Americans to live more of their lives online than ever before, the privacy of those lives is very possibly soon to be more compromised than it has ever been before. It would be criminally foolish to suppose that any backdoors built into online systems for the use of law enforcement agencies would not be exploited by criminals as well — almost as foolish as trusting law enforcement to not abuse such privileged access. The possibility of such compromised systems being used to serve up — wait for it — child pornography… is not at all unimaginable.

Not one child in America is going to be made even slightly safer by the provisions of the EARN IT act. Every single American, of every age whatever, who has any part of their life in any kind of online system whatever (in other words… all of us), will be at a substantially greater risk of being arbitrarily deprived of essential constitutional rights.

The proponents of EARN IT have not earned that right — and they never will.

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