The number of child pornography images online is growing exponentially. Addressing online child sexual exploitation has become a congressional priority. With several bills competing for representatives’ and senators’ votes, including the Invest in Child Safety Act and EARN IT Act, the question seems to be less whether a federal law will be passed, than which one.

45 Million Images of Child Pornography Prompt Action

According to a New York Times investigation, in 2018, there were 45 million photos and videos of child sexual abuse material online. That number was nearly double the images found in 2017. Every one of those images is a crime, and every one has a victim.

The victims of child pornography face ongoing trauma as their images circle the internet. The children used in exploitive imagery grow up never knowing who around them has seen them at their most vulnerable. Strangers stalk them. Prosecutors and police contact them years, even decades later, after their images are found in another pedophile’s hard drive.

The Fight Against Online Child Sexual Abuse

Child pornography has long been illegal across the country under both state and federal laws. By 2008, the federal government knew it needed to do more. With less than 1 million online child pornography images, Washington passed the PROTECT Our Children Act. The law empowered the Attorney General and the Department of Justice to coordinate with state, local, and nonprofit entities to coordinate child exploitation prevention efforts and implement national monitoring and assessment. The law came with a $30 million appropriation to cover the cost of personnel and equipment.

However, as the numbers of child exploitative images increased, the personnel and funding did not. Law enforcement agencies now find themselves underfunded and ill equipped to keep up with the demand for investigations. In addition, the national coordinator position at the Department of Justice was never given the full authority described in the law, limiting its effectiveness.

At the same time, technology companies such as Microsoft and Google, resist cooperating with police during these investigations, often based on privacy concerns. In their place, private companies like Clearview AI have created software for police to use in investigating child exploitative materials. But when these programs turned to identifying victims, rather than perpetrators, sex abuse victims’ advocates raised privacy concerns of their own.

Congress Raises Competing Bills to Stop Online Child Exploitation

With the release of the 2018 statistics, Congress seems ready to make another attempt in creating federal regulation to fight online child sexual abuse. But representatives and senators don’t seem to agree on how to get that done. The result is several bills that take different approaches to prevention.

The END Child Exploitation Act Pushes Companies to Cooperate with Law Enforcement

The first bill proposed in response to the New York Times investigation was the END Child Exploitation Act. This bill was very small in scope. It doubles the time communications companies must retain child sexual abuse materials they find on their platforms. The hope is that this would give local law enforcement more time to investigate child pornography charges. This bill was introduced on December 10, 2019, by Ohio Representative Anthony Gonzalez, but has not yet moved out of committee.

The EARN IT Act Opens the Door for Decryption During Child Sexual Abuse Investigations

On March 5, 2020, Senator Lindsey Graham of South Carolina presented the “Eliminating Abusive and Rampant Neglect of Interactive Technologies Act” or EARN IT Act. The bill put the burden of stopping online child sexual abuse on technology companies. It would create a 19-member commission to create a set of standards and give tech companies a strong incentive to follow them.

Generally speaking, social media companies and search engines are not legally responsible for the content their users add to their sites. However, companies that don’t follow the EARN IT Act standard could lose that protection. This would allow sex abuse victims to sue the technology companies for failing to take reasonable steps to screen for and remove child exploitative imagery.

The bill was approved by the Senate Judiciary Committee on July 2, 2020, and is now up for consideration by the Senate as a whole. However, privacy advocates and the tech industry are lobbying against it. They are concerned that the commission may endorse compelled decryption of user data or a government encryption backdoor for use in law enforcement investigations. Attorney General William Barr has called for these kinds of “lawful access” to encrypted information, but advocates are concerned that this could lead to unconstitutional invasions of privacy in the name of criminal investigations.

Invest in Child Safety Act

On May 6, 2020, Senator Ron Wyden of Oregon proposed his own bill, the Invest in Child Safety Act. Unlike the EARN IT Act, Wyden’s bill would focus on law enforcement rather than tech companies. The bill would increase federal funding by $15 million and create a Senate-confirmed director for the program. The bill would allow federal, state, and nonprofit agencies to increase staffing and update equipment, while also increasing accountability to make sure prevention efforts were effective.

“You put somebody working in the same building as the president and that means you got somebody to actually hold accountable for success and failure,” said Mr. Wyden.

The Invest in Child Safety Act is still being considered by the Judiciary Committee. However, without the tech companies opposing it, this bill may have the best chance of becoming law in the future.

At Eisenberg & Baum, our sexual abuse attorneys to stand beside child victims and their families against their abusers and the social media companies. We make it a priority to follow changes in federal and state laws so we can best protect your loved ones. Contact us today to schedule a free consultation.