At first sight, this would appear as something that no one could oppose: who would not want to stop the circulation of Child sexual exploitation material (CSAM) online? To oppose it would be to implicitly endorse, or even protect, some of the worst content online. So goes the gaslight logic of the 2023 Elimination of Gross and Widespread Neglect of Interactive Technologies Actor WIN IT, a bill that seeks to end online privacy and free speech under the guise of protecting children.
Like SESTA (Stop Enabling Sex Traffickers Act) and FOSTA (Fight Online Sex Trafficking Act) before her, who supposed targeting online sex trafficking, this legislation uses coverage of vulnerable demographics to establish policies that directly threaten artists and other human rights defenders. Likewise, as EARN IT moves ever closer to the law, the arts community remains shockingly silent.
Although officially designed to target the CSAM, the Electronic Frontier Foundation (Effect other digital rights groups believe the new bill is actually designed to eliminate online privacy and threaten websites of all sizes to cooperate with the authorities. This will mean states having access to everything we once trusted to stay private, the likely demise of end-to-end encryption, and the chilling of free speech on the internet as sites fear lawsuits and responsibility. The EARN IT Act would also establish an unelected government commission to create a code of “best practices” for websites and platforms to follow.
Existing law Already requires platforms to report all CSAMs they find, but it goes even further, requiring them to not only report the CSAM when they find it, but to actively seek it out. This means that under EARN IT, websites and platforms will have to monitor all private and public communications and turn over any potential CSAMs to authorities, or risk being held accountable and punished for failing to do so. The effect is expected to be counter productivebecause vendors of illicit material will go further underground and make CSAM harder to find, not easier.
While the threat to end-to-end encryption and a directive to follow yet-to-be-determined “best practices” created by an unelected commission is worrying enough, we should be seriously concerned about what else this pass for all our communications will ultimately be used for. EFF believes that CSAM monitoring is not an end, but rather a means to an end, indicating, “There is no doubt that the sponsors intend this bill to analyze users’ messages, photos and files, and they wrote it for that purpose.” More than likely, lawmakers and law enforcement will be tempted to exploit the mountains of information that surveillance will gather for other, even new, offenses which, in our increasingly unstable political climate, could mean targeting individual groups or ideas. Unencrypted communication has already been used prosecute people seeking or assisting with abortions in states where abortion is now illegal; it doesn’t take a leap of logic to imagine how the communities most at risk would be affected by the surveillance of private communications.
Target free speech and privacy in ways that will inevitably harm already marginalized communities means artists will be among the first to feel these effects. Around the world, artists are already being targeted and silenced at an increasing rate, especially LGBTQ+ artists and women. Freemuse reported that art censorship is on the rise around the world and artistic freedom is at its peak the lowest point in recent history. Much of the censorship takes place either online or using invasive digital tracking, often encouraged or used by partisan governments and regimes. If the United States implements such invasive and threatening measures, even in the name of hunting down CSAM, it will be artists and other human rights defenders who will suffer.
Platforms and websites are unquestionably crucial tools for artists, allowing us to reach audiences and opportunities that were unthinkable years ago. A chill in free speech online means that many artists will be pushed to the limits of the internet or entirely offline, as sites choose to purge them rather than protect them. Such an event is not conjecture; during the implementation of SESTA/FOSTA in 2018, platforms and payment providers chose to over-correct with broad censorship of content, resulting in the de-platforming and suppression of artists, activists, advocates and creators on the internet. This story serves to highlight the concerns of digital rights groups about the effects of EARN IT, as evidenced by an opposition letter sent to the Senate Judiciary Committee in May by the Center for Democracy and Technology, which noted that “past experience shows that these risks to free speech online are not hypothetical.”
The letter (which did not sway the Committee’s unanimous support for the EARN IT Act) was signed by more than 130 human and digital rights groups, but not a single artist group. This is not too surprising, as organizations and groups of visual artists have been ostensibly absent digital rights conversations and activism – something that is increasingly proving to our detriment.
Perhaps the visual arts community could be forgiven for being slow to organize around legislation that seems to have nothing to do with us; sex trafficking and CSAM are undeniably horrific events that obviously do not intersect with art and freedom of expression. Additionally, the very act of online censorship is exceptionally effective at silencing artists and erasing all evidence, allowing it to go unnoticed and underappreciated. However, after SESTA/FOSTA resulted in artists Plagued by account deletions, accusations of “sexual solicitation”, payment platform denials and marked professional difficulties, the community should have realized the risk. Now, as EARN IT is poised to continue its threat to privacy and free speech, the artists’ continued silence is increasingly troubling.
Art censorship is no longer something that happens from afar; it is not a relic of the past or a figment of our imagination. It’s time for artists to find their place among digital rights groupslet’s recognize the growing threats to our freedom of expression and organize against the rising tide of censorship that is sweeping our studio doors.
