A potential list of legally binding but to-be-determined “best practices” for internet companies could include almost anything.
If somebody uses an open online platform such as Facebook, Craigslist, or Reddit to post illegal material such as child pornography, is the platform itself legally liable? Since the enactment of the Telecommunications Act of 1996, the answer has been no.
The person or user who posted the material can — and should — be found criminally guilty, but not the website itself. (Unless the actual primary activity of the website was trafficking in this illegal material, most prominently Backpage.com which was shut down by the federal government in 2018.)
The legal logic of the 1996 law was to protect First Amendment free speech rights. If websites had to face economic repercussions such as a fine for every illegal message posted on their platform, many might choose to limit the quantity or types of messages users could post instead.
The National Center for Missing and Exploited Children’s CyberTipline received reports of 69.1 million image or video files related to child sexual exploitation in 2019 alone.
What the bill does
The Eliminating Abusive and Rampant Neglect of Interactive Technologies (EARN IT) Act would change websites’ liability for sexually exploitative content for children, from the current “presumed innocent” standard to having to “earn” their protection from legal repercussions for illegal content posted on their platforms.
A 19-member commission would also be created to craft a list of “best practices” on the issue, including the Attorney General, Secretary of Homeland Security, Chair of the Federal Trade Commission, and four members each appointed by the top Republican and Democrat in both the House and Senate.
It was introduced in the Senate on March 5 as bill number S. 3398, by Sen. Lindsey Graham (R-SC).