How the EARN IT Act, a Bill to Protect Children Online, Threatens Artists

Jordanna Kalman, “january” (2018), archival inkjet print. The work was featured on the artist’s website at the time Stripe terminated her account for “pornography” to abide by new US regulations. (image courtesy the artist)

At face value, it would appear as something no one could argue against: Who wouldn’t want to stop the circulation of Child Sexual Abuse Material (CSAM) online? To oppose it would be to implicitly approve of, or even protect, some of the worst material online. So goes the gaslighting logic of the 2023 Eliminating Abusive and Rampant Neglect of Interactive Technologies Act, or EARN IT, a bill that aims to end privacy and freedom of expression online under the pretense of protecting children. 

Like SESTA (Stop Enabling Sex Traffickers Act) and FOSTA (Fight Online Sex Trafficking Act) before it, which purported to target sex trafficking online, this legislation uses the cover of vulnerable demographics to establish policies that directly threaten artists and other human rights defenders. Similarly, as EARN IT gets ever closer to becoming law, the art community remains shockingly silent. 

While officially designed to target CSAM, the Electronic Frontier Foundation (EFF) and other digital rights groups believe the new bill is actually designed to eliminate privacy online and threaten websites of all sizes into cooperating with authorities. This will result in states having access to everything we once trusted to remain private, the probable demise of end-to-end encryption, and the chilling of freedom of expression across the internet as sites fear prosecution and liability. The EARN IT Act would also establish an unelected government commission to create a code of “best practices” for websites and platforms to follow. 

Existing law already requires that platforms report all CSAM that they find, but this will take it an intimidating step further, forcing them to not just report CSAM when they find it but to actively search for it. This means that under EARN IT, websites and platforms will need to surveil all private and public communications and turn over any possible CSAM to authorities, or face liability and punishment for neglecting to do so. The effect is expected to be counter-productive, as purveyors of illicit material will go further underground and make CSAM harder to find, not easier.

Roxanne Huber, “The Final Weeks” (2020), art photography that resulted in the deletion of her Instagram account (image courtesy the artist)

While the threat to end-to-end encryption and a directive to follow yet-to-be-determined “best practices” created by an unelected commission is worrisome enough, we should be seriously concerned over what else this all-access-pass to our communications will ultimately be used for. The EFF believes tracking CSAM is not an end, but rather a means to an end, stating, “There’s no doubt that sponsors intend this bill to scan user messages, photos, and files, and they wrote it with that goal in mind.” More than likely, legislators and law enforcement will be tempted to mine the mountains of information that surveillance will gather for other, even new offenses, something which in our increasingly volatile political climate could mean targeting individual groups or ideas. Unencrypted communication has already been used to prosecute people seeking or aiding abortions in states where abortion is now illegal; it doesn’t take a leap of logic to imagine how more at-risk communities would be affected by surveillance of private communication. 

Targeting freedom of expression and privacy in ways that will inevitably harm already-marginalized communities means that artists will be among the first to experience these effects. Around the world, artists are already being targeted and silenced at an increasing rate, particularly LGBTQ+ and women artists. Freemuse reported that art censorship is on the rise globally and artistic freedom is at its lowest point in recent history. Much of the censorship is taking place either online or by using invasive digital tracking, often encouraged or utilized by partisan governments and regimes. Should the United States implement such invasive and threatening measures, even in the name of tracking CSAM, it will be the artists and other human rights defenders who suffer.

Platforms and websites are indisputably crucial tools for artists, allowing us to reach audiences and opportunities that were unthinkable years ago. A chilling of freedom of expression online means that many artists will be pushed to the edges of the internet or offline entirely as sites choose to purge rather than protect them. Such an event is not conjecture; when SESTA/FOSTA was implemented in 2018, platforms and payment providers opted to over-correct with broad censorship of content, resulting in de-platforming and suppression of artists, activists, advocates, and creators across the internet. This history serves to underline concerns that digital rights groups have with the effects of EARN IT, as was reflected in an opposition letter sent to the Senate Judiciary Committee in May by the Center for Democracy and Technology, which noted “Past experience demonstrates that these risks to online free expression are not hypothetical.” 

The letter (which did not sway the Committee’s unanimous support of the EARN IT Act) was signed by over 130 human and digital rights groups, but not a single artists’ group. This is not all too surprising, as visual artists’ organizations and groups have been conspicuously absent from digital rights conversations and activism — something that is increasingly proving to our detriment. 

Perhaps the visual art community could be forgiven for being slow to organize around legislation that appears to have nothing to do with us; sex trafficking and CSAM are undeniably horrific events that do not obviously intersect with art and freedom of expression. What’s more, the very act of online censorship is exceptionally effective at rendering artists silent and erasing any evidence, allowing it to go unnoticed and underestimated. However, after SESTA/FOSTA resulted in artists experiencing account deletions, accusations of “sexual solicitation,” payment platform denials, and marked professional hardships, the community should have woken up to the risk. Now, as EARN IT is poised to pursue its threat to privacy and freedom of expression, artists’ continued silence is increasingly troubling. 

Art censorship is no longer something that happens from far away; it is not a relic of the past or a figment of our imagination. It is time for artists to find their place among digital rights groups, recognize increasing threats to our freedom of expression, and organize against the rising tide of censorship lapping at our studio doors.  

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