Sex workers continue to be a regular target of police brutality, but those crimes often go unreported because sex workers fear they will be arrested. Now, in the midst of a worldwide movement against police brutality, sex workers' labor conditions could become even more dangerous due to the EARN IT Act. The Act, which is making its way through the U.S. legislature, is intended to stop the sexual exploitation of children online, but organizations like Human Rights Watch worry that the Act's broad content-censoring guidelines will do more harm than good. Its impact will be especially felt by the LGBTQ community that has a disproportionate amount of people participating in survival sex work due to poverty and homelessness.
An Impact on Privacy
On its surface, the Eliminating Abuse and Rampant Neglect of Interactive Technology Act aims to stop the exploitation of children online by giving online companies a choice of implementing what it calls "best practices." A consequence of those practices will be to remove end-to-end encryption — that method of encryption ensures that messages sent between two parties online are not screened by the website on which they are chatting. And though it might help in preventing some online child exploitation, Electronic Frontier Foundation Policy Analyst Joe Mullin said that the removal of this form of encryption poses many privacy and free speech concerns by creating a backdoor for law enforcement to access any site's encrypted data.
"… The bill still encourages state lawmakers to look for loopholes to undermine end-to-end encryption, such as demanding that messages be scanned on a local device, before they get encrypted and sent along to their recipient," Mullin wrote. "… The bill opens the door for that question to be litigated over and over, in courts across the country."
Under current federal law — section 230 of the Communications Decency Act — internet companies are not liable for potentially illegal user-created content, but Mullin said that the loopholes lawmakers use to remove encryption would remove the choice to not follow the Act's "best practices."
"Why have a comments section, or a discussion forum, or an email service, or file storage services, if you could get in big trouble for something that a user did — even without your knowledge," he said in a Mashable tech report. "Online platforms will hedge their risk by removing or not providing these features."
Not the First Time Sex Workers Have Been Targeted
The American Civil Liberties Union has also stood against the EARN IT Act. While the ACLU stands with those coming forward about sexual abuse, it has compared the EARN IT Act to the Stop Enabling Sex Traffickers Act. SESTA was passed in order to protect sex workers from being trafficked against their will, however, it instead eliminated many of the safe spaces that sex workers used to maintain their health and safety. Rather than its intended goal of preventing human trafficking, ACLU Trans Justice Campaign Manager LaLa Holston-Zannell said that SESTA jeopardized the health, safety and privacy of sex workers further.
"SESTA banned many online platforms for sex workers, including client screening services like Redbook, which allowed sex workers to share information about abusive and dangerous customers and build communities to protect themselves," Holston-Zannell said. "The law also pushed more sex workers offline and into the streets, where they have to work in isolated areas to avoid arrest and deal with clients without background checks."
Many sex workers have taken up the use of online platforms to prescreen their clients and to verify if they have a criminal or violent history, sharing information regarding their health status and overall communicating both privately and safely. Jared Trujillo, the president of the Association of Legal Aid Attorneys, agreed with Holston-Zannell.
"I know, because I was a young queer sex worker before becoming an attorney, and I now work alongside many sex workers on advocacy efforts," Trujillo said. "EARN IT, like SESTA, which many lawmakers now regret, is one of the most pernicious attacks on the community I've seen."
Trujillo said that young LGBTQ people are "eight times more likely than their peers to trade sex for survival for a multitude of reasons."
"Including employment discrimination, housing instability, for sexual liberation, and the many existing biases transgender community members encounter," Trujillo said. "Simply put, elected officials cannot be both pro-LGBTQ+ and pro-EARN IT."
In an open letter to the U.S. Senate Judiciary Committee, Human Rights Watch has suggested that a more "nuanced" approach is necessary to avoid the consequences of a similar web protection laws — like one passed in Russia in 2013 that was "aimed at protecting children" but denied LGBTQ children freedom of expression, "life-saving support services, information, and community."
"The EARN IT Act approach forces internet companies to make a choice: manage the online expression of users based on best practices developed behind closed doors by an unelected 19-member commission, or face increased liability," the letter read. "Facing the risk of criminal prosecution for submitting a false claim, company officers will be incentivized to moderate content even more rigorously than the Commission recommends in order to minimize their exposure."
Avoiding the "Root Causes of the Problem"
ACLU Senior Legislative Counsel Kate Ruane said that the EARN IT Act "needlessly threatens our privacy and online speech rights" and fails to address the root of the problem: children falling victim to sex work in the first place.
"By requiring platforms to broadly monitor and censor speech to which children might be exposed online, the EARN IT Act's commission may recommend best practices that disproportionately censor, among other things: sex education materials, online support systems and communities for youth who are transgender or nonbinary, and all other youth who are in any way questioning their gender or sexual identity …," Ruane said. "Paradoxically, the best practices could harm children's ability to engage fully and experience the tremendous benefits to education and enrichment the internet offers."
And beyond youth-focused educational resources, members of the LGBTQ community who are not out often rely on strong encryption to discreetly seek services like HIV-prevention care, LGBTQ-affirming health care providers, sources for combating discrimination and more. And especially while the U.S. is in the midst of the protests for police brutality and racial equality, data encryption can be vital for concealing the identity of protesters. Encryption also protects domestic violence victims, allowing them to reach out and communicate with sources for help without an abusive partner finding out.
"Our online freedoms are now in serious jeopardy. If this bill is not stopped, millions of people — especially LGBTQ people and sex workers — will be censored and could lose critical access to online platforms necessary for their safety, security, and survival," Ruane said. "There is no need to endanger the voices of LGBTQ people and sex workers online to achieve our shared goals of protecting children from harm."
To learn more about how the EARN IT Act threatens the lives of the LGBTQ and Sex Worker community, visit aclu.org/letter/aclu-letter-opposition-earn-it-act-markup.