Adult Porn, Sex Workers Put at Risk by American EARN IT Act

WASHINGTON – The porn industry, sex worker and digital rights advocates are sounding alarm about the implications of the revived EARN IT Act, which was re-introduced on 31st January 2022 by Senator Richard Blumenthal (D-Connecticut).

The bill, which have as its goal to “protect victims and survivors of child sexual exploitation,” and which was announced by Blumenthal with a media blitz about “child protections,” is in fact a broad overhaul of Section 230 protections — known by online rights advocates as the First Amendment of the internet — to strip platforms of immunity for third-party uploaded content.

Activists say the ACT portends state censorship and privacy issues, and added that EARN IT will open the way for politicians to define the legal categories of “pornography” and “pornographic website” as they — or the lobbies that fund them — which is a cherished goal of organizations that seek to reintroduce obscenity prosecutions for content now protected by Free Speech jurisprudence.

EARN IT has been championed by top religiously-motivated anti-porn crusading groups such as NCOSE — formerly Morality in Media.

The bill was initially introduced in 2020 by Blumenthal in partnership with his South Carolina Republican colleague Lindsey Graham.

At the time, Graham made explicit his relentless aim to censor adult content online, writing to a constituent in an email that XBIZ reviewed, “I have concerns about our children’s ability to access pornographic material through the internet and email. While I wholeheartedly support the First Amendment, I do not believe exposing young people to pornography is an acceptable exercise of freedom of speech.”

He added in Dec. 2020 that he will “continue to work with [his] colleagues in Congress to limit society’s exposure to inappropriate material.”

When the bipartisan effort was first unveiled during the last presidential campaign, both senators loudly ballyhooed it as a forceful anti-Big Tech measure. However, critics pointed out that besides its already controversial intended mission to erode or even repeal Section 230 protections, the bill would also crucially undermine privacy by targeting encryption.

As TechDirt’s Mike Masnick pointed out, corporate and intelligence complaints against the encryption-busting potential of EARN IT were so concerning that Blumenthal and Graham were eventually “persuaded to adopt an amendment from Senator Patrick Leahy to more explicitly attempt to exempt encryption from the bill, but it was done in a pretty weak manner.”

Then, in late 2020, Graham and a lame-duck President Trump attempted to force Congress to pass EARN IT by bundling it with an unrelated bill, but that effort was thwarted at the last minute and the bill died for that congressional period.

This month though, Blumenthal loudly announced that EARN IT is back on the table. The bill is virtually unchanged from its previous incarnation, which was opposed by most digital rights and privacy groups, and also by adult industry organizations and sex worker advocates.

The reemergence of the bill generated enough concern to prompt Mike Stabile, Free Speech Coalition’s director of public affairs, to tweet an urgent call to arms against what he calls “SESTA-FOSTA 2.0,” warning that “it’s back and the danger it poses to sex workers is more extreme than ever.”

Stabile urged members of the adult industry and sex workers to “get up to speed quick” on the implications of EARN IT for their livelihoods. “It’s got bipartisan support, a moral panic at their back and the potential to devastate the hard-fought gains of the sex work creator economy.”

Kate D’Adamo, a noted advocate for the rights of sex workers with nonprofit Reframe Health and Justice, likewise expressed urgency by pointing out that EARN IT is “already scheduled to get marked up, which is the first step post-introduction. Most bills never go to markup, so this means they are putting pressure to move this through.”

Stabile added that “the bill will lead to the type of wide-scale deplatforming of sex work and sexual speech that we saw after SESTA-FOSTA.”

“Were it to pass,” he emphasized, “we’d likely see most, if not all, adult content and accounts removed from mainstream platforms, for fear of the liability that could come with ever accidentally hosting CSAM, as well as the erasure of end-to-end encryption on messaging platforms.”

Blumenthal’s revived EARN IT Act, Stabile noted, “uses a moral panic to enact more surveillance, more discrimination and more censorship of sex workers.”

Industry attorney and First Amendment expert Lawrence Walters, from the Walters Law Group, concurred that “this ill-conceived legislation threatens to decimate online freedom and eliminate the ability to communicate privately, without government surveillance.”

“Like other internet censorship legislation,” Walters continued, “this rebooted EARN IT act is being sold as a ‘child protection’ bill, in order to pressure lawmakers to vote for it without critical evaluation. In reality, the bill will intensify the harms caused by [SESTA/FOSTA], disproportionately impact LGBTQ individuals and target sexual education materials.”

Walters said that he nevertheless remains “hopeful that Congress will again reject the EARN IT Act as a danger to expressive freedom and an infringement on the right to privacy.”

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