The EARN IT Act poses risks to LGBTQ communities online, advocates say. Here's how

A bill meant to target child sexual abuse material online could pose far-reaching risks for members of the LGBTQ+ community, LGBTQ+ advocates and legal experts told USA TODAY.

The EARN IT Act, first introduced in 2020, would make it easier to prosecute social media companies for child sexual abuse material, or CSAM, on their platforms, the goal being to motivate platforms to target that material more forcefully. It was reintroduced in April by Sens. Richard Blumenthal, D-Conn., and Lindsey Graham, R-S.C., who said at the time that tech companies need to "take responsibility" for the material or "be held accountable."

But the bill, while well-intentioned, could have dangerous ramifications for freedom of expression, leaving LGBTQ online communities as collateral damage.

"This bill is intended to fight child sexual abuse online, and I don't think that's a goal that anyone wants to hamper," said Jenna Leventoff, senior policy counsel at the American Civil Liberties Union. "But this bill wouldn't actually do that. What it does do is lead to more internet censorship."

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What is the EARN IT Act?

The EARN IT Act would make social media platforms vulnerable to state criminal and civil laws that prohibit the presence or spread of CSAM, eliminating the protections social media platforms are currently afforded. Without those protections, each state could implement its own liability standard – even holding platforms accountable for content they aren't aware of.

"If you're a platform and you realize that you could be held liable for content that you don't know about, there's a couple things that you're going to do," Leventoff said. "The biggest one is that you're going to start searching your platform for anything that could possibly be CSAM, and you're going to take it down."

It's no question that the vast proliferation of CSAM online is an issue that must be addressed, six experts told USA TODAY. More than 32 million reports of CSAM were made to the National Center for Missing and Exploited Children's Cyber Tipline in 2022 alone.

"Everyone that supports this legislation actually shares goals with everybody that is concerned about the legislation: Childhood abuse material belongs nowhere in society, and figuring out how to get rid of it and how to protect those who have been harmed by it is a critical question that we collectively all want to address," said Kate Ruane, director of the U.S. Free Expression Programs at PEN America.

But despite the EARN IT Act's seemingly simple fix to a large problem, the experts agreed that, in practice, the bill would do more harm than good – especially for members of the LGBTQ+ community.

"With the EARN IT Act, the concern is that the this particular pursuit of that shared goal is going to have unintended consequences," Ruane added. "And those unintended consequences ... will fall disproportionately upon the LGBTQ+ community and the sex worker community."

LGBTQ+ content at risk

Faced with heightened risk of prosecution for CSAM, platforms will likely move to take more aggressive measures to block content that could fall within one state's parameters for CSAM, said Emma Llansó, director of the Free Expression Project at Center for Democracy and Technology.

Legally protected LGBTQ+ content could be swept into those filtering efforts, targeted due to "long-running societal biases and misconceptions" that being queer is "inherently more sexual" than being straight, she said.

"It comes down to deciding that filtering out words like lesbian and gay are important to do because that helps block sexual content," Llansó said. "It may help block some searches for some kinds of pornography, but it's also going to block a lot of people just talking about themselves, their communities and living their everyday lives."

The 2018 Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) and Stop Enabling Sex Traffickers Act (SESTA) had similar ramifications, according to Evan Greer, director of the nonprofit digital rights advocacy group Fight for the Future.

"(FOSTA-SESTA) actually made it more difficult for law enforcement to prosecute actual instances of sex trafficking, and then at the same time, it caused this massive collateral damage where platforms – unsure of where their liability might lie – effectively over-censored content and removed broad swaths of perfectly legitimate content that had nothing to do with sex trafficking," Greer said.

The pair of laws made conditions less safe for sex workers who relied on digital communities for screening clients and connecting with others in the industry, Greer added.

The social media app Tumblr's ban on "adult content" in 2018 had similar effects, according to C.P. Hoffman, senior policy counsel at the National Center for Transgender Equality.

"There was lots of art, lots of discussions about things – that all collapsed immediately, and it didn't really have anywhere else to go," Hoffman said.

Weakening Section 230

The core of the EARN IT Act's pitfalls come with the weakening of Section 230, a controversial portion of the Communications Decency Act that protects platforms from being held accountable for their users' content, the experts and advocates said.

"Anytime that you're looking to limit Section 230's applicability, you're opening up providers or platforms to say, 'I don't even want to offer user generated speech because I could be held liable,'" Leventoff said. "And what does that do to the internet and people's ability to find the information they need?"

The effects of a weakened Section 230 on LGBTQ+ communities would especially be felt in states cracking down on laws policing gender identity and sexuality.

More than 500 anti-LGBTQ+ bills have been introduced in state legislatures this year, according to the Human Rights Campaign, America's largest gay rights organization. Of those, more than 75 bills have been signed into law nationwide this year, more than doubling last year's number – previously the worst year on record. The advocacy group on Tuesday issued a "state of emergency" over the anti-LGBTQ+ laws.

Transgender rights have faced increased scrutiny from state and federal lawmakers, in particular, with anti-trans issues exploding as a key messaging strategy for Republicans heading into the 2024 elections.

But returning the ability to determine liability to states would not only tighten internet access for members of the LGBTQ+ community; it'd restrict it for everyone, according to Riana Pfefferkorn, a research scholar at Stanford Internet Observatory.

"That decision – for Section 230 to provide immunity from state crimes but not federal crimes – was a deliberate choice by the drafters of Section 230 when Congress passed it in the '90s, precisely because internet companies whose services cross state borders should not be exposed to liability under wildly different state laws," Pfefferkorn said.

"The internet should not be reduced down to whatever is acceptable to the most conservative, most narrow-minded state in the union," she added.

For Americans who use end-to-end encryption to protect their communications – from LGBTQ+ individuals to people seeking abortions – the EARN IT Act's passage could also have a chilling effect, Ruane said. If platforms with encrypted messaging like WhatsApp or Signal can be held accountable for information they can't screen, those security measures may be weakened.

"If Congress moves to pass a bill that would make it harder for them to communicate outside of the view of a government that would prosecute them for engaging in a drag show, we are definitely taking a step towards endangering their speech – endangering their ability to continue to engage in in their constitutionally protected rights."

Advocacy groups bring opposition

Despite its sincere efforts to combat the serious crisis of CSAM online, the EARN IT Act faces strong pushback from human rights organizations across the country. Last month, more than 130 human rights groups sent a letter to Congress urging opposition to the bill.

"We're always supportive of like engaging in the legislative process and trying to prove bills when they can be improved," Greer said. "This bill is a hot mess."

Introduced three times, Congress has not held a vote on the bill, largely because of strong opposition from advocacy groups.

"The folks that push these bills often kind of frame it as a choice between like, 'Well, either we pass this bill, or we do nothing and the children are not saved,'" Greer added. "And that's just a false choice. There are really meaningful things that lawmakers can do right now that will make the internet safer for kids. The EARN IT Act is not one of them."

This article originally appeared on USA TODAY: EARN IT Act could pose risks to LGBTQ communities online, experts say