Salvo 02.16.2023 6 minutes

More Hype

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Victims of child porn have become casualties of the tech culture wars.

The tech industry has a favorite expression, “getting things done,” which is hyper-efficiently tightened to “GTD.” While politicians in DC debated the latest culture war issue, engineers in Silicon Valley built products that “make the world a better place.” Tech policy, however, has its own set of “culture war issues”—including net neutrality and encryption—that largely serve as a distraction from the real issues at stake. Victims of child porn are now caught in the fray.

The battleground for this culture war is Section 230 of the Communications Decency Act—a provision of federal law that shields digital platforms from liability for their third-party content—and a bill called EARN IT, which would amend Section 230 by carving out federal and state child porn laws in order to protect the innocent and vulnerable victims of exploitation.

For victims of child porn, the GTD appeal of EARN IT is straightforward, as exemplified by Doe v. Twitter. In that case, a perpetrator posed as a 16-year-old girl on Snapchat. The perpetrator convinced two teenage boys to share nudes with “her,” then blackmailed them to obtain even more explicit content.

The perpetrator later published this illegal porn on Twitter; the victims learned about it from their classmates. But despite multiple reports, Twitter did nothing, even after they asked for (and received) proof that one victim was a minor. In order to get Twitter to act, a federal agent had to get involved. By then, the images had already accrued 167,000 views and 2,223 retweets.

The victims later sued Twitter, alleging that the social media giant had violated federal child porn laws, among other things. Twitter did not even try to contest that specific allegation; they instead argued that Section 230 barred this claim. The court, whose hands were tied, sided with Twitter. A separate sex trafficking claim did survive thanks to an anti-sex trafficking law called FOSTA, which created exemptions from Section 230 for sex trafficked persons.

For these victims, Section 230 got in their way, and the thing that Congress wants to get done is simple: get Section 230 out of the way. EARN IT does exactly that.

These victims are not alone. In 2019, the New York Times reported that the FBI had prioritized reports of child porn for infants and toddlers; they essentially could not respond for victims older than that unless they were in imminent danger. That year, NCMEC’s CyberTipline received 16.9 million reports for child porn. In 2021, that number had grown to 29.3 million. When platforms face so little accountability for child porn, it’s easy to see why this problem has grown so large.

Encryption Warriors

The quintessential example of a GTD organization, as Jane Coaston noted, is Freedom to Marry. This organization fought to legalize gay marriage, the Supreme Court legalized gay marriage, and then the group shut down. The Washington Post even ran a story titled, “Freedom to Marry is going out of business. And everybody’s thrilled.”

But advocacy groups needed a new culture war cause to rally around—and fundraise on. Politicians needed a new campaign issue to run on—and fundraise on.

Tech policy has its own set of defensive advocates, including the Electronic Freedom Foundation (EFF). And in the endless culture wars, EARN IT would become the next battleground for an encryption debate. As recently as January, the EFF claimed that “the EARN IT Act is a surveillance bill.”

Some applications, such as the Signal messaging app or Proton’s email service, will use encryption so that nobody can spy on your messages—including both the government and the tech companies themselves. As someone who regularly uses Signal, I would be concerned if a bill did legitimately threaten encryption. But EARN IT is not such a bill. The EFF is making bogus arguments against EARN IT to fundraise at the expense of victims of child porn.

A useful frame of reference here is net neutrality. When the FCC repealed net neutrality regulations in 2017, advocates claimed that it was the end of the Internet as we know it, that the Internet would load one word at a time, and that we were on the road to digital serfdom. None of that happened. So when you hear the EFF claim that EARN IT will “subject all our communications to mass scanning,” you should treat such claims with a similar degree of skepticism.

Moreover, the child porn laws that EARN IT would carve out of Section 230 already apply in every other industry; the tech industry alone benefits from Section 230. If hyperbolic claims about censorship, control, and the destruction of innovation were true, then you should be able to find some proof of those claims when you look at industries that are not protected by Section 230.

Similar fearmonger claims were made about FOSTA, but FOSTA worked. Sex trafficking victims have used FOSTA to get Section 230 out of the way in lawsuits against TwitterFacebook, and Pornhub. But despite that, the EFF has doubled down on its lies that FOSTA “will not stop sex trafficking and will instead make stopping it harder.”

The Search for a Sword

Culture warriors often claim that the sky will fall without Section 230. But even if Section 230’s shield does not protect you, the other side will still need a sword. Namely, they still need to prove that the tech company violated a law—or find some other legal cause of action. Without that sword, a lawsuit is dead on arrival with or without Section 230.

For example, the EFF claims that EARN IT “allows encryption to be used as evidence against a company in order to find it liable for hosting [child porn],” but that is false. Only a federal or state child porn law can allow encryption to be used as evidence; only that law can take a sword to encryption. And if you look at the text of these child porn laws, you won’t find that sword.

The EFF then resorts to hypotheticals: what if a future child porn law took a sword to encryption? Thus we cannot pass a bill that would fix the very real problems that victims of child porn face, because the EFF has raised concerns about hypothetical problems that could be created by future laws.

Meanwhile, the Supreme Court may neutralize Section 230’s shield. If you have read Justice Thomas’s critique of Section 230, and you understand the methodology of the conservative majority, you will know that this possibility is very real.

EARN IT and Encryption

Congress can forcibly end this culture war scheming by removing the encryption language from EARN IT—not because they hate encryption, but because EARN IT doesn’t threaten encryption.

The language was only inserted as a good-faith effort to address the concerns of critics. That tactic, however, will only backfire against culture warriors. Sure, they should drop their opposition if this language truly protects encryption, but they will shift the goalposts so that encryption is always at risk.

Congress should just call their bluff: stop negotiating on that language and remove it altogether.

In an era where companies worry about the “reputational risk” of reviewing the video game Hogwarts Legacy, I would ask this question: what’s the reputational risk of picking a fight against the victims of child porn, especially for a bill with wide bipartisan support? While the EFF has no qualms about fighting a culture war that claims victims of child porn as its casualties, sensible people should act differently.

The American Mind presents a range of perspectives. Views are writers’ own and do not necessarily represent those of The Claremont Institute.

The American Mind is a publication of the Claremont Institute, a non-profit 501(c)(3) organization, dedicated to restoring the principles of the American Founding to their rightful, preeminent authority in our national life. Interested in supporting our work? Gifts to the Claremont Institute are tax-deductible.

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