A guest post by Zee Xaymaca
The SWERFS are at it again, folks. 2022 has brought the latest in the onslaught against online privacy and sex workers’ rights. By now we know the drill; an innocuously named bill with heinous content is pushed through by the anti-sex work lobby under the guise of trafficking prevention. This season’s flavor of government overreach is back to a classic: interactive internet services and concerns about child welfare, in particular fears about “child pornography” or child sexual abuse materials (CSAM) . Enter the Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2022 or the EARN IT Act of 2022.
If the term ‘Interactive Technologies’ has you scratching your head a bit, that was intentional. The definition of these services is distressingly broad. What they are talking about is the Internet. An interactive technology is any technology that allows multiple people to connect to a single server. This includes both private and public communications; from web searches to messaging platforms. Any system that allows access to the Internet Even in libraries.
The EARN-IT Act sets the internet up as the domain of a new National Commission on Online Child Sexual Exploitation Prevention. This Commission forms the crux of the bill. The EARN-IT Act provides for the creation of a 19-person commission that is expected to prescribe best practices for Interactive Internet Technologies in curtailing dissemination of CSAM. The commission consists of “(i) The Attorney General or his or her representative. (ii) The Secretary of Homeland Security or his or her representative. (iii) The Chairman of the Federal Trade Commission or his or her representative.
The remaining 16 positions on the Commission are filled by various senate leaders and together must include persons with law enforcement experience, have prosecutorial experience, have experience with internet technologies and lived experience with trafficking, among other criteria.”
Conspicuously missing from this line-up are ‘people who have experience navigating the provision of online sexual products and services’, legal or otherwise. One may be inclined to think that sex workers’ wealth of experience in navigating the internet discreetly and safely would be a hot commodity in the bid to balance the right to privacy enshrined in the constitution and the mandate to root out abuse in online spaces… But I digress.
Armed with a broad mandate and broader reach, the EARN-IT act prescribes some changes off the bat in the form of amendments to previously passed legislation. This is where the mechanisms of the commission become clear. The legislation includes 14 mandates and several additional revisions to prior legislation, and some so troubling they bear explication here.
The commission is tasked with coordinating voluntary initiatives offered among and to providers of interactive computer services relating to identifying, categorizing, and reporting online child sexual exploitation. For sex workers and related communities this is chilling. This means that the commission is allowed to coordinate with our service providers to hand over our online activity to the federal government. Increased surveillance has yet to yield results in curtailing sexual abuse material. However it has proven chillingly effective as a means of policing the actions of private citizens acting within their rights. The onerous website verification standards arising from anti-trafficking legislation is a concrete example of the harm done by crusaders making unsubstantiated claims of widespread trafficking that demands this particular response. While there is no evidence that requiring sex workers to provide national ID before working online has any effect on the trafficking it is aimed at, it is clear that it squeezes vulnerable sex workers, (POC, undocumented, disabled or otherwise unable to meet excessive requirements) out of the market. This essentially forced disclosure makes advertising online a precarious balance between maintaining anonymity which is necessary for legal and physical safety, and access to their income stream. This is an authorization for a massive data drag net, arguably to find evidence of child sexual abuse. Yet, there are no prescriptions for what to do with the rest of that non-evidence material. It does not address the matter of privacy for those surveilled nor the victims they claim to search for.
In addition to a public-private sector partnership, the commission is allowed to deputize non-profits. “NCMEC (National Center for Missing and Exploited Children) may provide hash values or similar technical identifiers associated with visual depictions provided in a CyberTipline report or submission to the child victim identification program… to a non-profit entity for the sole and exclusive purpose of preventing and curtailing the online sexual exploitation of children.” Put in simple terms, submissions to the cyber sexual abuse tipline, a federal database, will be made available to nonprofits that are looking to ‘curtail trafficking’.
The glaring issue here is that these “tips” do not need to be substantiated before individuals have their information and sexual material distributed to non-profits that have no clear regulations as to how the organizations operate or utilize them. However, the question still lingers, “Is distributing identifying information and documentation about victims at the most vulnerable times of their lives to non-government interested parties the best we can do to protect them?” It is especially troubling since the dissemination of this information to non-profits gives little guidance as to operational standards for organizations that would be involved.
The call for “training content moderators”–without any assurance that such training would not be alarmist, transphobic, misogynist, xenophobic and racist–conjures images of the censorship we already experience on social media with regard to erotic or sexual content. We do, after all, live in a country that does not even provide comprehensive sexuality education to young people in schools. There is a strong push to de-eroticize internet spaces that is bolstered by this additional set of policing measures. Since it is evident in current censorship practices, it is safe to assume that these measures will further marginalize persons with low access to public discourse.
Sex workers are sure to be caught in the drag net of the search for child sexual abuse. Our information will be made available to the federal government and organizations we may never have even heard of. Our content will be judged and shared by persons whose access we did not consent to. Finally, our content, especially content by Black persons and POC, will be weaponized by these government and private/nonprofit sector agencies to further the victim narrative of sex work and its conflation with trafficking.
These provisions are troubling even without the USA’s lurch toward puritanical conservatism. The collaboration between online platforms and the federal government is a looming threat to the “free expression” that once seemed to resonate with US ideals. There is no clear provision for how this information is used or held and by whom. The more information the government has on sex workers, the bigger targets we become and the more susceptible we are to legislative anti-sex work crusades. Make no mistake, sex workers just happen to be among the most profoundly affected by policies like SESTA/FOSTA and EARN-IT, but it concerns all of us. Our data is being weaponized against us in a plan for our erasure if we are considered a “security risk” or even just “different”.
Currently, the best practices in targeting and handling ‘evidence’ of CSAM and trafficking are intended to be suggestions. However, that is cold comfort, seeing as though long held rights and freedoms are being taken away at a rapid rate. The establishment of this commission heralds binding legal measures. Sex workers have warned everyone of the implications of such sweeping regulations. Sex workers have been the example of the uneven hand of censorship that targets those who are already marginalized. Society must take heed.
Resources:
S.3538 – EARN IT Act of 2022, full legislative history is located here: https://www.congress.gov/bill/117th-congress/senate-bill/3538/text?q=%7B%22search%22%3A%5B%22earn+it+act%22%2C%22earn%22%2C%22it%22%2C%22act%22%5D%7D&r=3&s=1
A downloadable PDF of S.3538
Section 230 of the Telecommunications Act that defines “interactive technologies”: http://uscode.house.gov/view.xhtml?req=(title:47%20section:230%20edition:prelim)