stLouISTHow EARN IT Could Give Abusers A Get Out Of Jail Free Card: By Making Evidence Inadmissible
In admitting that his EARN IT Act is really about attacking encryption, Senator Richard Blumenthal said he wouldn't agree to keep encryption out of the bill because he worried that it would give companies a "get-out-of-jail-free card." That's nonsense for multiple reasons, which we explained in that post, but the fact is Blumenthal's bill actually does contain a "get-out-of-jail-free card" that is incredibly damaging. It's one that child sexual abusers may be able to use to suppress any evidence collected against them and which would not just undermine the very point of EARN IT Act, but would make it that much harder to do the thing that needs to be done: stopping such abusers.
We touched on this a little bit in our earlier post about the mistakes senators made during the markup, but it's a little wonky, so it deserves a deeper exploration. Here's a good short description from Kir Nuthi in Slate:
As it stands, most companies that host online content voluntarily turn over huge amounts of potential evidence of child abuse to the National Center for Missing and Exploited Children. Because private companies search for this evidence voluntarily, courts have held that the searches are not subject to the Fourth Amendment. But the EARN IT Actthreatens to disrupt this relationship by using the threat of endless litigation and criminal prosecution to strongly pressure private companies to proactively search for illegal material. Thanks to how the EARN IT Act amends Section 230, companies are more exposed to civil and criminal liability if they don’t follow the government’s “or else” threat and search for child sexual abuse material.
Currently, tech platforms have an obligation to report but not search for suspected instances of child sexual abuse material. That’s why searches today are constitutional—they’re conducted voluntarily. By encouraging and pressuring private sector searches, the EARN IT Act casts doubt on every search—they’d no longer be voluntary. Thus, the Fourth Amendment would apply, and evidence collected without a warrant—all child sexual abuse material in this case, since private parties can’t get a warrant—would be at risk of exclusion from trial.
The Supreme Court has long held that when the government “encourages” private parties to search for evidence, those private parties become “government agents” subject to the Fourth Amendment and its warrant requirement. That means any evidence these companies collect could be ruled inadmissible in criminal trials against child predators because the evidence was procured unconstitutionally.
Put simply, thanks to the EARN IT Act, under theExclusionary Rule, defense attorneys could argue that evidence was collected in violation of the Fourth Amendment and should be excluded from trial. As a result, the bill could lead to fewer convictions of child predators, not more.
In short: under the current setup, companies can search for child sexual abuse material (CSAM) and if they find it they must report it to NCMEC (and remove it). This is good and useful and helps prevent the further spread. But under the 4th Amendment, if the government is mandating a search, then it would require a warrant before the search can happen. So, if the government mandates the search -- and as various senators made clear in both their "myths and facts" document, and in the markup hearing, that's exactly what they intend this bill to do -- then anyone who is charged with evidence found via such a search would have an unfortunately strong response that the evidence was collected under state action, and, as such in order to survive a 4th Amendment review, would require a warrant.
In other words, it hands terrible criminals -- those involved in the abuse of children -- a way to suppress the evidence used against them on 4th Amendment grounds. Under such a regime that would make it more difficult to prosecute actual criminals. But, even worse, it would then create a perverse and dangerous precedent in which companies would be greatly encouraged not to use basic scanning tools to find, remove, and report CSAM content, because in doing so, it would no longer be usable in prosecutions.
So the failure by senators to understand how the 4th Amendment works, means that EARN IT (beyond all its other problems) creates a constitutional mess that is, effectively (and almost literally) a "get-out-of-jail-free card" for criminals.
