Pretending that platforms alone can end online child abuse does not make it so.
Pretending that platforms alone can end online child abuse does not make it so.
C hildren’s online safety was a matter of paramount importance to lawmakers in Washington and in state capitals last year. Congress has considered many bills to counteract the proliferation of child sexual-abuse material (CSAM), efforts typified by such legislation as the EARN IT Act (Eliminating Abusive and Rampant Neglect of Interactive Technologies), a brainchild of the Senate Judiciary Committee. Later this month, the CEOs of several major social-media platforms will appear before this committee to discuss the issue.
Despite their good intentions, advocates of the approach distilled in the EARN IT Act commit the most elementary of policy analysis: “X is a problem, legislators say their bill will solve X, therefore their bill should be passed.” This reasoning raises the critical question: Will the proposed policy actually solve the problem? Unfortunately, EARN IT and similar pieces of legislation would fail to protect children online. Instead, the bills would build an ineffectual system that would deflect focus from criminals and expose at-risk minors.
The EARN IT approach is to introduce considerable civil liability for online platforms that fail to deplatform user-generated content depicting sexual abuse of children. The theory is that enhanced liability will force platforms to eliminate most online child sexual-abuse material. However, this approach contains two foundational strategic errors, which doom it to failure. First, it would allow government to shirk its law-enforcement responsibility to prevent and combat child abuse, instead offloading this task on private companies. Secondly, in doing so, it would siphon political and enforcement scrutiny away from the child abusers — the criminals — to online platforms, without whose voluntary cooperation any anti-abuse framework cannot succeed. Moreover, a myopic reliance on post hoc liability for platforms does little either to prevent abuse or to punish child abusers.
The child-exploitation black market is multinational and often sophisticated, and opposing it requires the resources and authorities of the criminal-justice system. As Stop Child Predators lays out in a recent report, law-enforcement entities simply lack the necessary funding and resources to act on the flood of reports of child sexual-abuse materials that they receive. For example, during a “90-day period, there were 99,172 IP addresses throughout the US distributing known CSAM images and videos through peer-to-peer networks,” the report says. However, “law enforcement only had the capacity to investigate 782, less than 1%, even though 75% of similar cases result in ‘successful prosecutions.’” Without smart investments in law enforcement, crimes against children are not investigated, and criminals are not held accountable and are free to re-offend.
Nonetheless, successive administrations have declined to meet their statutory obligations to combat child sexual-abuse materials online. Passed in 2008, the PROTECT Our Children Act, sponsored by then-senator Joe Biden (D., Del.), required the Department of Justice to develop and update continually a comprehensive anti-CSAM strategy and further allotted funds for local law enforcement. The DOJ has, however, failed to produce many reports that the PROTECT Act requires. Moreover, the agency has disbursed only half of the $600 million per year appropriated to state and local law enforcement.
Anybody can understand that to stop bank robberies, authorities must — consistently and effectively — arrest and prosecute those who rob banks, deterring prospective offenders and locking up potential recidivists. Online crime ought to be dealt with similarly.
That many lawmakers have chosen to focus primarily on scrutinizing platforms (rather than pursuing more prudent reforms) is unsurprising today because practically everybody has some gripe with Big Tech. To effectively combat the proliferation of such images online, lawmakers must eschew the EARN IT Act’s adversarial approach and enhance its existing collaborative relationship with platforms. Indeed, already bound by federal reporting requirements, platforms accounted for nearly all cyber tips submitted to the National Center for Missing & Exploited Children in 2022 — 99 percent.
EARN IT and similar proposals would upend this dynamic. These bills, which would create liability for inadvertently hosting third-party-generated child sexual-abuse material, would incentivize platforms not to report abusive material. Many commentators argue that something, anything must be done about CSAM — and done now. But as EARN IT demonstrates, hasty and ill-considered policy solutions — even those that address inconceivably horrible crimes — can further endanger the very victims they seek to protect.
Lawmakers and law enforcement have finite time, attention, and resources. Legislatively, such faddish proposals as EARN IT have distracted from far superior alternatives, notably Senator Ron Wyden’s (D., Ore.). As introduced in the 117th Congress, the Invest in Child Safety Act proposed providing billions for federal authorities, quadruplingthe DOJ Child Exploitation and Obscenity Section’s prosecutorial corps, and hiring significantly more investigators and analysts at the DOJ and Federal Bureau of Investigation. It further proposed extending the duration that tech companies must retain data on child sexual-abuse materials, allowing law enforcement more time to prosecute cases.
EARN IT would discourage platforms from offering strong encryption services — a sine qua non of digital user privacy. This could violate the Fourth Amendment, whose original meaning likely protects the right to use these technologies. Wyden’s proposal poses no threat to civil liberties. EARN IT’s disastrous privacy implications have drawn opposition from such diverse institutions as the American Civil Liberties Union, Public Knowledge, the Mozilla Foundation, TechFreedom, NetChoice, and many more. None opposed Invest in Child Safety.
Online child abuse is an acute and growing problem. From 1998 to 2018 (according to the New York Times), reports of images of child sexual abuse leapt from 3,000 to 18.4 million annually. This demands a proportionate public-policy response, one that enables law enforcement to prosecute the criminals and criminal organizations responsible. Pretending that platforms alone can end online child abuse does not make it so.
The programs offered by the Invest in Child Safety Act are commonsense, targeted at a discrete and identifiable dearth of enforcement, and respectful of individual liberty. Moreover, they would build on the sitting president’s landmark 2008 legislation — legislation that no administration, including Biden’s, has implemented faithfully. Simply put, Biden should push Congress to finish what it started 15 years ago.
Patrick Hedger is the executive director of Taxpayers Protection Alliance. Before joining TPA, he was a research fellow at the Competitive Enterprise Institute’s Center for Technology and Innovation and also served as director of policy at the FreedomWorks Foundation.
Maureen Flatley is an expert in government reform and oversight involving children. She has been an architect of a range of bills in Congress that reformed systems that serve children. In 2006, she was instrumental in the creation and passage of Masha’s Law, a bill that tripled the civil penalty for downloading child sexual-abuse material.