In this safeguarding podcast we talk with Eleanor Kelly Gaetan, Director of Government Relations for the National Centre on Sexual Exploitation (NCOSE) about the American legal system and US Federal legislation which is passed will have global ramifications. Although the EARN IT Act has bi-partisan support, “big tech is pretending that it cares about child protection and it doesn’t give a damn”. So what is the EARN IT Act and how will it work?
There’s a lightly edited transcript of the podcast below for those that can’t use podcasts, or for those that simply prefer to read.
Neil Fairbrother
Welcome to another edition of the SafeToNet Foundation’s safeguarding podcast hosted by me, Neil Fairbrother, where we talk about all things to do with safeguarding children in the online digital context.
Child safeguarding in the online digital context is at the intersection of technology, law and ethics and culture, and it encompasses all stakeholders between a child using a smartphone and the content or person online that they are interacting with.
Many Western social media companies are American, often based in California and are subject to American laws at a federal, state or local level, which due to the international reach of social media services end up having an international impact effecting children’s online experiences around the world. To help guide us through what appears to be a period of legal upheaval in the US and what it might mean for children online, I’m joined by Eleanor Kelly Gaetan, Director of Government Relations for the National Centre on Sexual Exploitation. Welcome to the podcast Eleanor.
Eleanor Kelly Gaetan, NCOSE
Great to be with you Neil.
Neil Fairbrother
Thank you. Eleanor, could you give us a brief resumé please of yourself so our listeners have an understanding of your background and experience?
Eleanor Kelly Gaetan, NCOSE
Certainly. So I work at the National Centre on Sexual Exploitation. NCOSE is looking at the connections between all forms of sexual exploitation, including sex trafficking, childhood sexual assault, prostitution, revenge pornography, child sexual abuse material. Unfortunately, there are far too many permutations of abuse and these are crimes that just cut to the core of a human’s dignity and sense of self. So NCOSE is dedicated to that. I’ve been there for about a year and before that I worked at the Coalition Against Trafficking Women, an international organization dedicated to ending sex trafficking and abuse, human trafficking, labour trafficking. And then before that I was at the State Department’s office to monitor and combat trafficking in persons. So I’ve been working in the field of human trafficking about 20 years.
Neil Fairbrother
Okay. Thank you for that. Now before we dive into the specifics of some of the proposed US legislation, could you explain a little bit about the US legal system for us non-Americans? For example, you’ve got Federal laws, as I said in intro. You’ve got Federal laws, you’ve got state laws and you’ve got local laws. Does a Federal law, for example always trump a state law? Do local, state and Federal laws all need to be in sync to avoid chaos? Or how does the system work in general?
Eleanor Kelly Gaetan, NCOSE
It’s a great question. The Federal law governs many of aspects of online exploitation, but state and local law governs many aspects of say prostitution as an activity that causes exploitation to many people. The state laws and local laws don’t necessarily have to be in sync with Federal laws, so it does create confusion. Also, each state maintains its own statistics, so we’ve had cases of an exploiter or a trafficker moving just to another state and the new state doesn’t realize that that person been involved in criminal activity. So the Federal system in the United States creates quite a patchwork of jurisdictions and legal regimes.
I don’t think that’s what’s causing our main problems in getting big tech to be more concerned about child exploitation though. It’s not a problem of legal regime. It’s a problem of the absence, the absolute absence in the United States of restrictions on big tech or the absence of accountability
Neil Fairbrother
Indeed – we’ll come on to that in a moment, if you don’t mind. I mentioned in the intro that we seem to be going through a period of some upheaval as far as legislation is concerned in the US; there’s COPPA2 being drafted at least, in January we saw the introduction of the Californian Consumer Privacy Act, otherwise known as CCPA. There’s some new legislation on the books, or at least proposed legislation on the books, called the Invest in Child Safety Act and then the EARN IT Act. Why do you think we’re seeing so much legal activity on this issue now?
Eleanor Kelly Gaetan, NCOSE
Right. And multiply that by the state legislatures. So in every state, the legislature is looking at their own proposals. Just for example, in Maryland alone, there were five different versions of how to confront revenge pornography and several of the proposals we thought might even make the problem worse. So another element of chaos is that we have State proposals and Federal proposals at the same time.
I think across the board, so many of us parents and just friends of kids are super-concerned about what our children and our youth are seeing online, what they’re exposed to inadvertently, and then how predators have access to children, sometimes even through a messenger service on an online platform where you think you’ve put privacy settings on and a stranger is still able to query your child. That’s very disturbing. And everyone wants a solution and yet there’s not consensus yet on how to make, how to create an effective solution.
Neil Fairbrother
Okay. One approach is the Invest in Child Safety Act which seems to be one more of budget. The headlines draw attention to a very large $5 billion budget which is there to help fund the FBI and NCMEC, which seems to be a recipe of more of the same. Is that enough do you think? Is the Invest in Child Safety Act sufficient on its own to help eradicate this problem?
Eleanor Kelly Gaetan, NCOSE
You are incisive Neil! It is a more of the same bill with a giant dump truck of cash attached to it. I kind of think of it as a bribery bill. It’s trying to get NCMEC and other child advocacy centres which are excellent organizations across the country, there are hundreds of them, they do forensic interviews of abused children, exploited children. So the money is maybe to buy off some big child protection organizations. And it’s not enough. It’s absolutely not enough.
The problem isn’t a question of cash, although these are under-resourced organizations and it is true, across the country, the FBI is confronting so much child sexual abuse material online, they have had to prioritize the exploitation of toddlers and babies over 10-year olds or young teens, because there’s that much of this garbage online. That’s a kind of triage that citizens don’t want to know that law enforcement is compelled to make. You want solutions that more systematic.
Neil Fairbrother
Okay, so $5 billion is of course a huge amount and that’s what’s in the headlines, but it’s spread over 10 years.
Eleanor Kelly Gaetan, NCOSE
Exactly. This is a headline. Big tech is all about, I call it the Scooby doo run in place, a cartoon character that runs but never gets anywhere. Big tech is pretending that it cares about child protection and it doesn’t give a damn, and that’s proved by this bill. This bill is an ineffective response to create a big headline to make tech looks like they’re doing anything and they’re not. They’re not doing enough.
Neil Fairbrother
Okay. So the other act, the other proposed bill, which I mentioned earlier, which is why you’re here is the EARN IT Act. What is the Earn IT Act and why is it necessary?
Eleanor Kelly Gaetan, NCOSE
So in several hearings in the Senate over the course of the last year, both Democrat and Republican senators, and we’re talking about a very divided country, politically divided country, and here’s an issue where Democrats and Republicans thoroughly agree that big tech is getting away with murder and not protecting kids and enough is enough.
So after a series of hearings, two of the leaders, Lindsay Graham is a Republican from South Carolina and Richard Blumenthal is a Democrat from Connecticut, they put their heads together with very capable staff and wrote a bill called the EARN IT Act. What it does is it creates incentives for the tech industry to take on both online child sexual exploitation and CSAM, the Child Sexual Abuse Material. It creates accountability where none exists.
So the big question is why is big tech free to do anything they want and not to care about liability? It goes back to a Federal law called the Communications Decency Act passed in 1996 when the internet was still a baby and it said platforms can’t be held responsible for the traffic that occurs on them. They can’t be censoring or reading or editing, they can’t be looking at everything that’s moving across the internet. And that’s true. They can’t be looking at everything.
However, this has allowed a situation to occur in which there are zero incentives for tech to care about flagrant criminality, especially criminality that abuses the most vulnerable citizens. Tech likes to argue that it’s complicated, it’s still fragile somehow, (I don’t understand that) that the internet is so important to our economy and to our lifestyles that you can’t tinker with it much. Well, nuclear reactors are complicated things and yet they are liable for any harm they cause to citizens in their vacinity. There’s no difference between the internet industry, the folks that are making money off the internet and any other industry, all of them need to be held liable for harm they cause.
So what the EARN IT Act does is finally introduce some conditionality that big tech cannot continue with blanket immunity, that they must maintain some business standards and address the existence of exploitation online, or they lose their immunity. That’s what it is. It’s an incentive. So creating a new incentive system.
Neil Fairbrother
The EARN IT Act sets up a Commission, a new Commission called the National Commission on Online Child Sexual Exploitation Prevention. Why does it need a new Commission? Could this not be handled by an existing body such as NCMEC, for example, or even yourselves?
Eleanor Kelly Gaetan, NCOSE
So at first I thought the same thing, why a new bureaucracy? Having worked in the Federal government, I know that new committees are not usually the solution. However, what we know about the nature of these tools and the social media platforms is they change rapidly, and a problem that emerges this week, it’s going to be a different problem next month and Congress moves too slowly. A Commission will be able to be more nimble, in accommodating the differences that exist in the field; there’s a huge difference between a Facebook or a Google and a smaller startup selling services locally.
So a Commission can be both nimble, flexible, and also expert. We really need to draw from privacy experts. We want to balance privacy with the need to be safe. Nowhere in the EARN IT Act’s text is encryption mentioned, but big tech is claiming that encryption will be undermined by the EARN IT Act.
That’s a false argument. That’s a straw man. That’s a kind of fake news headline in order to distract people from what this does; it makes their immunity conditional on them upholding certain business practices that will scrutinize their platforms for opportunities for exploitation, the presence of CSAM and any risks that they should be liable for.
Neil Fairbrother
Okay. Now the Commission is made up of a mix of people, as far as I understand it. It’s a 19-member Commission comprised of sort of Federal officials and representatives from law enforcement victims, survivors of child sexual exploitation technology experts, legal experts and representatives from technology companies themselves. And all these people are going to get together and do what? What are they there to do? You’ve talked about putting in some provisions and protections and so on. What, is the nature of their work? How will they accomplish this?
Eleanor Kelly Gaetan, NCOSE
So the first step will be to develop best practices to combat the grooming and the sex trafficking and abuse that occurs on some of the platforms. They’ll establish best practices and a “super majority” is required to approve them.
Neil Fairbrother
What do you mean by a super majority? What’s the difference between a super majority and a majority? What’s the difference there?
Eleanor Kelly Gaetan, NCOSE
So 14 members of the 19 appointed members will have to approve the business practice. The purpose is so that one industry doesn’t force through a provision that’s not approved by the victims. It’s to say there’s got to be consensus among these experts on what the best practices should be. And then that will become required for any company that wants to maintain immunity. If a company decides not to follow those best practices, fine, they can go off and do what they’re going to do. But they will open themselves up to lawsuits because they will lose that immunity.
Neil Fairbrother
Okay. Just coming back to the Commission for a moment. The Bill says that four of the members shall be survivors of online child sexual exploitation OR have current experience in providing services to victims, AND another four shall be individuals who each currently work for an interactive computer service. So what you might end up with is NO survivors of online child sexual exploitation on the Commission, but you could have four who are experienced in providing services for victims and four individuals who represent the industry. That can’t be right, that there would be no survivors being directly represented. Is this a slight flaw in the bill?
Eleanor Kelly Gaetan, NCOSE
Do you know, I hope we get to the point where those are the kinds of flaws we can address. The survivor community is very strong and powerful in the United States, thank God, because the survivor community has really prevented some ludicrous proposals that we’ve seen. I believe that the survivors will make it clear to the direct service providers that they should be prioritized.
I’ll tell you the truth, I didn’t pick up that problem when I reviewed drafts and it’s a complicated bill and that of course it makes it easier for big tech to pick apart. But the idea of a Commission that it is nimble enough to review week to week, not year to year, the problems we find online and a Commission that has the power to hold companies accountable, all of that is necessary. Now getting the best composition of that Commission, that’ll be another step.
Neil Fairbrother
Okay. Now the Act does say that the purpose of the Commission is to develop recommended best practice, which is what you alluded to earlier, and that they can choose, as you said earlier, to implement those best practices with whatever consequences may be, they might lose their immunity. But why make it voluntarily in the first place? Why not simply mandate that they must follow these best practices?
Eleanor Kelly Gaetan, NCOSE
So that gets back to a peculiarity of American law and it’s in the history of American law. Congress can’t direct companies to do anything specific and that arguably made for a very dynamic market here. There’s a lot of independence that the market has. However, in this case, what we’re hoping is that the Commission will also have a kind of public authority to shame companies into participating. So while the law says Congress can’t just order companies to do anything specific that will affect their commerce, they can create a commission that has authority to hold their feet to the fire.
Neil Fairbrother
Getting these best practices passed into law, assuming the Act itself gets passed into law, the process to get the best practices into law is actually quite torturous. First of all, as you said, the super majority of 14 members of the commission have to agree. Then the attorney general himself or herself has to agree. Then the Secretary of Homeland Security. Then the FTC, the Federal Trade Commission has to, they’ve all got so accepted recommendations as written, then they’ve got to get in front of Congress and Congress has to confirm them. And of course Congress has no obligation to accept them. So how long might that process take and how much exposure is there? How much risk is there to these best practices from vested interest lobbying?
Eleanor Kelly Gaetan, NCOSE
It’s a great question. I’ve been told that the estimated initial processes could be 18 months. What we would hope to see is a robust set of best practices that really are effective and for example NCOSE has put together some best practices, which really would make a giant difference. I guess that’s because I’ve seen, you know, a set of 10 best practices that would make a big difference that I think this Commission can work.
I think that it is based on peculiarities of American law that we’ve had to go in this direction, and what senators are saying privately is if big tech kills this, which they’re hard at work at trying to kill it, if they do succeed, the next obvious step is to look at the Communications Decency Act and just get rid of their immunity. Just delete Section 230, that is where their immunity resides and say, you know what, you’re just like a nuclear reactor, you should be held liable for any harm you cause. End of story. No best practices, just be like any other company. Part of me as an advocate, that might be the most expedient route to follow.
Neil Fairbrother
It would certainly be a very controversial one and in a way, I would look forward to seeing that particular bunfight but we’re not there yet, we’re some way away from that I think. Now in the EARN IT Act, there are 11 “matters”, the formal term is “matters”, there are 11 “matters” that are to be addressed by the recommended best practices. And with some interest I noticed that matter “I”, they are A to K and matter I is employing age rating and age gating systems to reduce child sexual exploitation. So this is age verification by any other name. How might this work? Because in the UK we were about to implement an age verification process set against considerable opposition just before our last General Election at the backend of last year and it got shelved. It’s been pushed back into something called the Online Harms white paper. How do you see an age rating or age gating system working for social media companies?
Eleanor Kelly Gaetan, NCOSE
So you’re right, this is one of the matters that the Commissioner is supposed to cover that advocates are the most excited about. Look, we can’t even use the term “age verification”, tech fought that phrase. They saw early drafts on every step but they insisted on a synonym that was softer than age verification. That’s why we have age gating. [it’s] kind of an absurdity, but trust me, those lobbyists are paid like a thousand dollars an hour, so they will invent things to fund. That’s what we need, isn’t it?
Neil Fairbrother
Well, some of the opposition to age verification over here went along the lines of, well, if you do age verification, then all you’re doing is creating a database full of child information. You actually need to extract more information about the children to create that database than you do today, so it becomes even more dangerous.
Eleanor Kelly Gaetan, NCOSE
I don’t have a response to absurdity.
Neil Fairbrother
Now talking about opposition to Bills, there is opposition obviously to the EARN IT Act, which you’ve alluded to. And one reason that is put forward by opposition to this Bill is that it gives a small group of unelected government officials i.e. the Commission, or even one person, which in this case is Attorney General Bill Barr, the ability to decide what gets published online. Is this the case?
Eleanor Kelly Gaetan, NCOSE
Well, there’s something called the Federal Trade Commission. There’s something called the Federal Communications Commission. The idea of a Commission is not new. Plenty of decision making is shared by citizens and that’s all this is.
Neil Fairbrother
Okay. The Centre for Internet and Society at Stanford law school says that the Commission recommends best practices to the Attorney General who has the power to unilaterally change them before they’re finalized as long he writes up some reason for the changes. In other words, the Attorney General has supreme power. Is that correct?
Eleanor Kelly Gaetan, NCOSE
You know, I have to say this is a proposal and I know where it comes from. I know the honest reflection and discussion that’s going to putting it together and with any piece of complex the legislation, there are unintended consequences. I don’t think anyone intends that an Attorney General can change it all up. Right. There would be public pressure against an Attorney General completely undermining intent. Does every piece of legislation have unintended consequences? Absolutely. It was an unintended consequence that the Communications Decency Act let loose some of the greatest perversity imaginable and you don’t have to be three clicks away from obscenity that’s absolutely harmful. The brain science says that obscene pornography is harmful.
Neil Fairbrother
Indeed. Another argument from the from those that oppose the EARN IT Act is that it represents a threat to end-to end-encryption and therefore user privacy. In what way do they justify this? And in what way is it incorrect? Assuming indeed that it is incorrect? Maybe it’s true.
Eleanor Kelly Gaetan, NCOSE
Oh it’s not true. The Bill doesn’t mention encryption at all and you have to keep in mind this Bill was written after a series of hearings in which tech companies testified that strong encryption could be reconciled with aggressive policing of CSAM, child sexual abuse material. So this Commission we believe is well positioned to help tech achieve that goal, achieve that balance between creating more secure environments for all of us to work and the much more aggressive policing we need of both child pornography and of the many ways that kids are groomed and trafficked and abused online. We need that balance.
But there’s nothing in this Bill about encryption. And it’s a red herring. It’s just something easy to throw on Twitter or Reddit as a criticism that will generate new opposition from quarters that maybe aren’t as aware as you and I are of the terrible stories of child exploitation that occurs online.
Neil Fairbrother
Yes. Well, I think the argument goes something along the lines of this Bill makes social media companies, for example, proactive in terms of finding child sexual abuse material on the services. To be proactive to find it, you need to be able to see it, but encryption makes it essentially invisible. You can’t detect CSAM files if they’re encrypted and therefore you can’t fulfill your obligation to be proactive in finding it. Does that argument hold water?
Eleanor Kelly Gaetan, NCOSE
I’m not an engineer. I don’t know, but I do know this: Senator Blumenthal, who was the Attorney General of the State of Connecticut and has covered this problem for years and met many victims over the years, he hired a tech expert who’s both a lawyer and an engineer to work on this Bill, because he said he was sick of going into meetings where tech will claim that things were impossible, buy they’re possible. So that’s one of the people who helped draft this Bill, folks that really know, can you balance encryption and aggressive and enforcement of child protection?
The companies themselves have said that they can do both, so we want to see that. Right now we’re seeing almost no policing of egregious images and activities online.
Neil Fairbrother
Yes. We’ll finish off on the opposition to this Bill shortly. Another objection to the EARN IT Act says this will simply cause the displacement from the surface web to the dark web of child sexual abuse material. And in the dark web, of course, no one has accountability or responsibility for anything at all. Do you think that’s true? Do you think there will be a migration from surface web to dark web of CSAM material?
Eleanor Kelly Gaetan, NCOSE
Well, I’ve been briefed by Wounded Warriors, that’s a cadre of people who are on the dark web and hunting down these people exchanging CSAM files and for the criminals who are exchanging this material to find each other, it’s also possible for law enforcement to find them and they find these people every day.
I mean they take down people who are trading in CSAM every day. There are too many of them out there, but they take them down every day. So Wounded Warriors who are special cadre of investigators working on this problem specifically say they find them on the dark web. They find them wherever they are because they have to find each other to trade the files.
Neil Fairbrother
Eleanor, if the EARN IT Act is passed, and by the way, I don’t know if you have any timescale as to when it will be passed, assuming it gets through all of the due process, will it solve all known issues? Is it a panacea or will there still be work to do to stop at least the distribution of child sexual abuse material online?
Eleanor Kelly Gaetan, NCOSE
Oh, absolutely. There’s too much to do. We can’t wait around for a Commission. They’re wonderful people at NCMEC, the National Centre on Missing and Exploited Children. There are wonderful people across the country that are working on this in law enforcement. But I think we need to create, at least in the US, we need to create more public pressure also on the Department of Justice. Why aren’t they prosecuting some obscenity cases?
There is racist, misogyny, racism. It’s rampant on PornHub. We know of trafficking cases, a victim was found on PornHub, a victim of sex trafficking who was missing for a year, a 15 year old girl. People are really… there’s a certain tide is being turned over 850,000 people have signed a signature saying PornHub needs to be held accountable for the presence of non-consensual sexual acts being depicted there and sex trafficking and CSAM, it’s a cesspool.
So creating more public awareness and showing through things like this petition which achieved 850,000 people in a handful of weeks is important because that way the Department of Justice here will see that they need to do more prosecutions. See they’re saying right now, so Attorney General Bars is saying, and he said this earlier this year in an interview that his department was so busy handling CSAM cases and prosecuting child pornographers that they have no time to look at obscenity.
What NCOSE argues is that’s part of a sort of slippery slope because you’ve allowed obscenity to go on, enough research shows that folks become addicted and they move into more and more sort of fetishistic stuff and they moved toward kids. There’s just a lot of academic work there that’s been done on the nature of sexual arise arousal and pornography and addiction and the brain science supports the idea that child exploitation that is rampant now has flowed from allowing some of this obscenity, which is really not only perverse, but it violates our political laws against racism or sexism. You let that go so far and you don’t curb it the next thing you know, you have people seeking out 12-year olds or 6-years olds, which is what’s happening
Neil Fairbrother
And they’d become abusers.
Eleanor Kelly Gaetan, NCOSE
Absolutely. There are more and more cases of people being coerced to commit an act of child abuse and film it and then it gets uploaded and the production of pornography has not slowed. It’s gotten worse and it’s gotten more socially unacceptable. And yet we haven’t created a public movement that’s strong enough to pressure our officials into bringing these cases.
Neil Fairbrother
So Eleanor, what is the likelihood of the EARN IT Act being passed because you’ve got an interesting mix I think in the US with the Democrats and the Republicans? What is the composition in the Senate, for example, and how will this be steered through the political system?
Eleanor Kelly Gaetan, NCOSE
So Neil, the Senate is controlled by Republicans, but it’s interesting to note that currently of the 10 leading supporters, and it’s got some big names, six of the 10 are Democrats. The Bill will need a companion bill on the house side. So any piece of legislation must be approved by the two chain of Congress, the Senate and House of Representatives. And today we’re working on the Senate side proposal and then we’ll move over to the House. But it’s a very good sign that Democrat Senators I have signed up to support this act. It is one of the few remaining bi-partisan fields, the effort to curb and shrink human trafficking and protect children. These are fields that remain bi-partisan.
Neil Fairbrother
Eleanor, I think we’re going to have to leave it on that note because unfortunately we’ve run out of time. I really appreciate your insights into this complex issue and we look forward to the progress of the EARN IT Act I think because as I said earlier, many US laws have global ramifications and consequences and it seems as if there are many good things about the EARN IT Act which may well help children, not just in the US but around the world.
Eleanor Kelly Gaetan, NCOSE
Absolutely. Neil, thank you so much for what you do. I appreciate it.