EARN IT Act: Breach of the First Amendment at its Best, Deadly at its Worst

Advocates say that Senator Lindsey Graham’s bill could be devastating for LGBT sex workers of color

After a year plagued by unprecedented public health and economic crisis, heightened racial tensions over police brutality, wildfires that scorched the west, the death of a beloved Supreme Court justice, and a looming presidential election, you may be thinking that 2020 couldn’t get any worse. 

Emma Llanso wants you to remember that in fact, it can— and if Senate Bill 3398 were to pass congressional approval, sex workers would not be the only ones facing digital privacy threats unlike anything ever before. 

At first, the Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2020, better known as the EARN IT Act, appears to be the next step in cracking down on sex trafficking online; however, critics say the bill, at the least, is a breach of the First Amendment and privacy laws, and could be potentially deadly. 

Llanso, director of the Center for Democracy and Technology’s Free Expression Project, said in a phone interview that the EARN IT Act is the latest form of internet censorship presented under the guise of combatting sex trafficking. 

The National Human Sex Trafficking Hotline describes sex trafficking as “a form of modern day slavery in which individuals perform commercial sex through the use of force, fruad, or coersion.” 

The difference between sex trafficking victims and sex workers is simple: consent. Critics say that when the two are conflated, sex trafficking victims lose the attention of law enforcement and sex workers are criminalized further under the law. 

The EARN IT Act is a sister bill to The Stop Enabling Sex Traffickers Act and Allow States and Victims to Fight Online Sex Trafficking Act,  and would be the final nail in the coffin to effectively eliminate all critical harm reduction tools used by consenting sex workers on the internet.

The SESTA-FOSTA Act was enacted in 2018. The act, which significantly altered Section 230 of the Communications Decency Act of 1996, essentially rid online platforms of immunity from content generated by third party users. These platforms were then forced to decide between risking civil and criminal penalties for the content generated by their users or restrict their user’s freedom of speech online. 

As a result, popular sites used by consenting sex workers and clients, like Backpage or the Craigslist Personals section, were shut down to avoid violations of SESTA-FOSTA for companies altogether.

Tamika Spellman, sex worker and associate of policy and advocacy with HIPS, a nonprofit organization that works to Help Individual Prostitutes to Survive, said in a phone interview that more sex workers will be pushed into the streets without safe ways to connect with clients online. 

“If we’re doing more street based sex work, we’re making it bad for sex workers, because that’s gonna leave them more eligible for someone to victimize them by robbing them,” Spellman said. “You’re purposely creating a law that is going to cause victimization.”

Former sex worker turned advocate and lawyer Jared Trujillo said in a phone interview that the EARN IT Act will target marginalized sex workers the most. 

“People are criminalized differently,” Trujillo said. “If you’re a person of color or if you’re queer you’re a lot more likely to be criminalized.” According to Trujillo, sex workers of color or those identifying as LGBT have historically used the internet as a safer, more acceptable place to connect with clients or perform sex work. 

Sex workers will also lose critical harm reduction tools proven to increase the safety of workers. These, Spallman explains, include community message boards containing bad date lists— a method used to screen clients by documenting and sharing the descriptions and personal information of clients that may pose a threat to sex workers— as well as sites containing advice on how to perform sex work safely and end to end encription, all being put to an end of fear of these sites being considered as promoting prostitution.  

End to end encryption, Llanso said, ensures that communication between users is completely secure from the sender to the receiver. Up until now, that meant that service providers or even the U.S. government were prohibited from seeing those messages. 

Llanso said that while proponents of the EARN IT act say that end to end encryption prevents the DOJ from performing proactive scans for child pornography. “EARN IT is essentially a way to try to enormously disincentivize sites from using end to end encryption so that users communications can be infected and scanned in an unfiltered way for potential child sexual abuse material,” Llanso said. 

Sex workers aren’t the only ones that benefit from end to end encryption. In fact, a majority of Americans will be affected by the EARN IT Act, as their right to secure messaging will also be compromised. 

Everything from a lawyer interacting with their client via text to messaging between a doctor and patient will be compromised and potentially investigated without a warrant by the Department of Justice if the bill were to pass. 

“Essentially the government is saying that all speech needs to be pre-approved by a filter before it can be shared or spoken,” Llanso said. On a constitutional level, this is a direct violation of the First and Fourth Amendments, through the suppression of free speech and unlawful search and seizure of evidence without a warrant. 

Even though many say  the bill wouldn’t stand up to strict scrutiny in the Supreme Court, the bill, which was drafted and proposed by Senator Lindsey Graham, soared through the Senate Judiciary Committee without hesitation. 

By presenting the bill under the guise of combatting sex trafficking, Llanso said that lawmakers are more likely to pass it.“It was finding that kind of point of the wedge of the issue that no one can argue with like sex trafficking to ultimately continue to campaign against sexually explicit content as a whole on the internet and sex workers online in general,” Llanso said. 

Even historically radical politicians like Bernie Sanders supported the SESTA-FOSTA Act in 2018. In fact, the bill passed the senate with a vote of 97-2, with only Senators Ron Wyden and Rand Paul voting against it. Many expect that the EARN IT Act will be the same. 

“The EARN IT Act wont only make sex workers and everyone else less safe,” said Trijillo, president of the Association for Legal Aid Attorneys, “but it will also take away that part of the internet that allows people who are thought of as weirdos to connect with others and feel a little more human.”

By McKenzie Beard

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