If you’re a sex worker who spends any amount of time online, you may have already heard about the Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2020 (or EARN IT). Introduced into the Senate in March, EARN IT has been called “FOSTA 2.0,” and the bill repeats some of the worst mistakes legislators made with the Fight Online Sex Trafficking Act passed in 2018.
You probably know that FOSTA made tech companies both civilly and criminally liable if users post content related to trafficking. You probably also know that the language in this bill extended this liability beyond trafficking to punish online platforms for hosting any content that might be used for the “promotion or facilitation of prostitution,” and that it resulted in an immediate shutdown of websites and apps that sex workers used to share information as well as increased discrimination against sex workers by online platforms, thus depriving the very people it claimed to help of access to crucial safety resources.
Like FOSTA, EARN IT ostensibly seeks to diminish a serious social problem (abuse of children) by increasing the liability of social media platforms, but in addition to creating increased tech platform liability even broader than FOSTA’s, this new bill would create a commission charged with developing a list of “best practices” for tech companies. While it remains to be seen what these best practices will look like, how they would vary from administration to administration, and how they would be used in the law, they have the potential to undermine the end-to-end encryption that protects our private communications. If companies are expected to create backdoors to encryption for law enforcement, as attorney general Bill Barr (who would lead the EARN IT commission if the bill passes) has expressed a desire for, those same backdoors could be used by anyone who wishes to do harm, making us all more vulnerable to hacking, surveillance, stalking, and doxxing.
In a section of the bill that is much more broad than FOSTA, EARN IT would also make tech platforms subject to laws enacted by states, regardless of whether those restrictions are consistent with restrictions in other states, thereby forcing tech companies to follow nationwide—and potentially worldwide—the laws that are passed in the most conservative states. FOSTA, by comparison, had only a limited impact on state law. Nonetheless, we saw after FOSTA passed that when faced with any increase in liability for content posted by users, tech companies react broadly—suppressing any speech that might be even remotely related to the law’s target and kicking vulnerable people off of platforms. These same companies are likely to respond to EARN IT by suppressing of sexual health and sexuality-related content online, particularly sex education content directed toward youth—a form of suppression these companies are already inclined toward. Just as FOSTA did, this will deny life-saving information to precisely the people the bill claims to help. In particular, EARN IT has the potential to erase the spaces in which survivors of child sexual exploitation share their stories and talk to each other.
You probably know how, after FOSTA passed, tech companies increased the categorical erasure and suppression of online speech by people in the sex trades and by people merely profiled as being in the sex trades. You know how sex workers, lacking access to ads through which to find and screen clients, increasingly turned to outdoor work, decreased client screening, went back to exploitative managers, and faced widespread economic insecurity. You know how our social media accounts have become the target of increased shadowbanning and shutdowns; the hashtags by which we organize and share information have been suppressed; and we continue to be kicked off of financial and other platforms. All of this is made worse by a general public who is only too happy to leverage platform liability against us, reporting our accounts and even extorting sex working people to get accounts back.
Sex workers, survivors, and sex working survivors have been through too much to let Congress again pretend to address violence while instead increasing marginalized people’s vulnerability to violence. To let Congress again pretend that sex working people and survivors of violence are discrete groups with opposing needs, rather than overlapping and complicated communities all of whom want real violence prevention measures. To let them pretend this at a time when our community members are struggling to survive the coronavirus, at a time when underfunded domestic violence shelters are at such capacity that members of our community have been turned away when seeking help. Instead of passing EARN IT, Congress could heed the public’s current and urgent demand that policing and punitive measures be defunded and that resources be reinvested in communities. Instead of increasing liability for tech companies (for whom it is already illegal to host child abuse content), Congress could be allocating real resources to child and domestic violence prevention programs. At the bare minimum, Congress could pass the SAFE SEX Worker Study Act, introduced on December 17th of last year, to get actual data on the impact of increased tech liability on marginalized communities before they merely repeat the same harms again.
This is a terrible time to ask sex working people to once again demand to be heard by the legislators who have continuously demonstrated their willingness to sacrifice our community members in service of a career-enhancing pretense of addressing social harms. We’re exhausted by trying to just help each other survive right now, and we are a community of people for whom the exhaustion of daily survival is chronic. But there are things you can do to respond to EARN IT if you have the capacity. Hacking//Hustling, an organization formed in the wake of FOSTA that works at the intersections of sex work, tech, and social justice, is hosting a webinar on Tuesday, September 8th. We are urging folks to call their Senators on Wednesday, September 9th. To make that easier, and to provide more information, we’ve created a website collecting EARN IT opposition resources. There’s information about how to contact your Senators, social media hashtags, videos and FAQs, and harm reduction ideas to put into place right now. Those harm reduction ideas repeat much of what we did in the face of FOSTA: to whatever extent you have capacity for, backup online content that you don’t want to lose, find ways to keep in touch with people that don’t require using social media. Above all, practice self-care and care for each other.
Lorelei Lee is a sex worker activist, writer, recent law school graduate, and 2020 Justice Catalyst Fellow. Their essays, fiction, and poetry have been published or is forthcoming in The Establishment, Denver Quarterly, $pread Magazine, Salon, Buzzfeed, n+1, WIRED, The Believer, and elsewhere. They are a contributor to the anthologies Coming Out Like a Porn Star, The Feminist Porn Book, Hustling Verse, and others. They were a founding member of Survivors Against SESTA, are a researcher and analyst with Hacking//Hustling, and serve as an advisor to Red Canary Song.