Victims of sexual abuse in Washington and across the country may soon have recourse against tech companies that allow users to post child abuse material. 

The U.S. Senate is advancing the Eliminating Abuse and Rampant Neglect of Interactive Technologies Act, or EARN IT Act. This is a bipartisan law designed to make tech companies accountable for child sexual exploitation materials. 

Child sexual abuse and tech companies 

In 2019, the National Center for Missing & Exploited Children received almost 17 million reports of suspected child sexual abuse. These reports included over 69 million files, photos and videos. Social media platforms host some of this material but enjoy broad immunity from liability for user content. 

Key provisions of the proposed law 

The EARN IT Act would incentivize tech companies to “earn” protection from liability for violations of child sexual exploitation laws. The bill originally provided for the creation of a national commission to recommend best practices to identify and report the online sexual exploitation of children. Businesses could earn immunity by complying with these best practices or taking other satisfactory actions. 

Bloomberg Government explains that tech companies raised a concern that the best practices standard could undermine their ability to maintain encrypted platforms. Civil liberties groups worried about privacy also argued that this standard could require companies to identify content in a manner inconsistent with encryption. 

In response to these concerns, the U.S. Senate Judiciary Committee recently approved an amendment that eliminates the provision conditioning immunity on best practices. This amendment also recognizes that companies may use encryption. However, the amendment also expands a victim’s ability to pursue federal and state civil litigation and state criminal action against companies that advertise, distribute or solicit child sexual abuse materials. As amended, the proposed national commission will have responsibility for suggesting voluntary guidelines for companies.