Disclaimer
- As usual we are not lawyers. Our analysis and thoughts are based on a high level understanding of US law and we routinely will interpret laws in the context of a worst case scenario to ensure we comply with them properly.
- This Analysis is based on the version of the law introduced to the senate on 1/31/2022. Laws can change quite drastically as they move though congress so this analysis may quickly become outdated as the law evolves.
- Remember that our usual rules about political discussion on both the forums and the discord apply here. Please keep any discussion focused on the facts of the law and avoid trying to start any debates in the comments. This post is meant to inform the community of what the EARN IT Act of 2022 is as well as how it may impact Weight Gaming and them as users of the site.
TLDR;
While we think the EFFs analysis may be a bit alarmist we generally agree with what they have stated on the law. In its current form the EARN IT Act will likely place a greater regulatory burden on Weight Gaming, and at minimum affect us and our users indirectly as services like AWS and Digital Ocean try to comply with the law if passed.
We feel that if the law was to pass we would likely have to step up active enforcement of our rules against child pornography (which would require us to bring on more mods) and possibly further expand our definition of child pornography which is already quite broad. There is also a risk of knock on effects compromising our ability to host the site but will highly depend on how cloud hosting services respond to the law if passed.
Overview (AKA What is the EARN IT Act)
The EARN IT act of 2022 is a reintroduction of the failed EARN IT act of 2020. While the bill has several sections, it in general can be summarized into 3 main goals:
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Section 3 - The establishment of a commission to provide guidance to congress on how to best combat “child sexual exploitation” and set best practices that “interactive computer services” (basically any site that hosts user generated content, Weight Gaming, DA, Furaffinity , AWS, Google, ect) can choose to follow.
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Section 5 - Amending the Communications Decency Act (CDA) to fully remove safe harbor for interactive computer services around the distribution of child pornography. Currently the CDA provides safe harbor to interactive computer services for civil and state laws, but not federal laws, around the distribution of child pornography.
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Facilitate the detection and reporting of users creating child pornography through the use and modernization of government provided systems and tiplines/services as well as the preservation of evidence for investigations. This is distributed across several sections of the document.
Who Does It Affect?
The law in mainly targeted at what are called “interactive computer services”. For the most part this just means any service that distributes user generated content and is not a ISP. So this includes sites like DA, Furaffinity, Itch.io as well as larger sites like AWS, Google, ect. Weight Gaming is also included under this umbrella.
It also will indirectly affect most users, both those who are US citizens and those who are not. At minimum more content may be taken down (from both here and other hosting sites) to comply with the broader range of State and Civil laws that sites would need to be complied with now. At maximum it would force or at least highly encourage sites (or services sites use like AWS) to actively report offences for investigation. Since most nations have extradition treaties in place this means non US citizens could also be affected by this as well.
How Does this Affect Weight Gaming?
In general, since it would broaden the amount of laws we would have to comply with it would greatly increase the burden of running the site as well as open us up to more avenues of both civil and criminal liability making running the site riskier for us as well.
Right now, with our current understanding of the current law, we would likely need to at least expand our moderation team as we would likely have to step up active enforcement of our child pornography rules to at minimum comply with the possible ToS changes we would expect to see from DO and AWS.
We do not think we would have to change our rules around child pornography as they stand since they are already quite broad, but there is a possibility we may need to expand or change our definition to comply with state or civil law which could result in some projects on the site being impacted.
There is also the possibility of active reporting of our users (either directly through us or indirectly through our hosting providers), but the law is too vague for us to make a call on that yet.
General Views on the Law
In general, we feel the EARN IT Act is once again one of those laws that sounded good on paper but was crafted without really taking into account the technical complications that could arise from it. This fact alone can be seen with how they propose to setup the 16 member commission with 8 seats dedicated to law enforcement, prosecution, and either survivors of online child sexual exploitation or involved with groups that provide support for survivors of online child sexual exploitation, 6 seats for representing interactive computer services and consumer/civil/privacy advocates (which they only get 2 of the 6) and the final 2 seats reserved for technical advisors. Also, section 5 does not really take into account how it will impact smaller sites with the law obviously being crafted with larger sites in mind.
We do want to state quickly that in fairness it is not by far the worst law we have seen thus far and we feel quite a bit of the flak it is getting is a bit unwarranted as it stems from a fundamental misunderstanding of the law. That being said, we still think this is a misguided law that in the best case was done with the best of intentions but without forethought, and in the worst case was done to claim some easy political capital without much thought put into how to actually solve the problem at hand.
In general though if the law was to pass its something we think Weight Gaming can bear, though will likely cause moderate impact to all of our community members, and we can not fully predict what the knock on effects could be which could be a larger concern depending on how larger services choose to comply with this law.