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May 3, 2023
The Honorable Chuck Schumer The Honorable Kevin McCarthy
Majority Leader Speaker of the House
U.S. Senate U.S. House of Representatives
Washington, DC 20510 Washington, DC 20515
The Honorable Mitch McConnell The Honorable Hakeem Jeffries
Minority Leader Minority Leader
U.S. Senate U.S. House of Representatives
Washington, DC 20510 Washington, DC 20515
RE: Fourth Amendment Issues Posed by the EARN IT Act (S.1207, H.R.2732)
Dear Majority Leader Schumer, Minority Leader McConnell, Speaker McCarthy, and Minority
Leader Jeffries:
We are academics who study criminal law and the Fourth Amendment. One of us is a former
federal magistrate judge. We support legislative efforts to protect the victims of child sexual
abuse material (CSAM). At the same time, we oppose proposals whose constitutional
implications risk undermining the fight against CSAM. This letter describes how the Eliminating
Abusive and Rampant Neglect of Interactive Technologies Act of 2023 (EARN IT Act), S.1207 /
H.R.2732, presents Fourth Amendment issues that could imperil CSAM prosecutions.
Federal law requires the providers of online services to report known CSAM to the National
Center for Missing & Exploited Children (NCMEC),
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which generates investigatory leads for
law enforcement. The law, Section 2258A, lets providers search their services for CSAM—but,
crucially, disclaims any requirement that they “affirmatively search, screen, or scan for” it.
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This limitation springs from the Fourth Amendment’s prohibition of unreasonable searches and
seizures, which precludes the government from having a private actor conduct a search it could
not lawfully do itself.
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Where a private party conducts a search primarily at the government’s
behest, rather than on its own initiative, it becomes an agent of the government. Those searches
must abide by the Fourth Amendment’s requirements, such as that of a warrant supported by
probable cause.
4
In criminal prosecutions, the remedy for an unconstitutional search is the exclusion of the
resulting evidence.
5
CSAM defendants commonly try to exclude evidence found by their online
service providers. Numerous services already voluntarily choose to automatically search
1
18 U.S.C. § 2258A.
2
18 U.S.C. § 2258A(f).
3
United States v. Ackerman, 831 F.3d 1292, 1300–01 (10th Cir. 2016) (Gorsuch, J.) (citations omitted).
4
Id.; see generally Jeff Kosseff, Online Service Providers and the Fight Against Child Exploitation: The Fourth
Amendment Agency Dilemma, LAWFARE: THE DIGITAL SOCIAL CONTRACT (January 2021),
https://s3.documentcloud.org/documents/20458337/online-service-providers-and-child-exploitation.pdf.
5
See Mapp v. Ohio, 367 U.S. 643, 651 (1961).
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uploaded content for possible CSAM and then, as required by law, report what they find to
NCMEC.
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Defendants frequently challenge the admissibility of evidence submitted to NCMEC
(and any evidence gathered based on those materials), asserting that Section 2258A turned their
provider into a government agent. To date, courts have rejected this argument, finding the
services’ searches were voluntary and thus the evidence was admissible.
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This regime enables online service providers to detect and report CSAM tens of millions of times
per year
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—and its viability rests on the narrow legal foundation of the services volitionally
choosing to prospectively search for CSAM. Congress should tread carefully before changing
providers’ CSAM-screening obligations lest it topple the precarious balance being tenuously
maintained under existing law.
The EARN IT Act creates that risk by exposing providers to civil and state criminal liability for
CSAM. The bill’s sponsors have expressly stated that they want to goad recalcitrant providers
into looking harder for CSAM by adopting widely-used tools “to automate the detection of
known CSAM material and report it to NCMEC.”
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To the extent the EARN IT Act pushes providers to conduct searches they would not freely
choose to do, it converts them into government agents and the evidence they submit to NCMEC
(and any further evidence generated from it) risks being thrown out in court.
10
Depriving
prosecutors of that key evidence would make it harder to secure convictions and lessen NCMEC
reports’ utility as a source of investigatory leads. Thus, the bill could reduce the number of
CSAM offenders held accountable for this heinous crime—by helping them walk free.
The EARN IT Act rolls the dice with the fate of CSAM prosecutions premised on searches the
Act would impel providers to conduct. Passing the Act requires Congress to bet that defendants’
constitutional challenges to those searches would never once succeed. With justice for child
victims at stake, Congress should refuse to make that bet. Rather than proceed with the EARN IT
Act, Congress should evaluate other options to address the scourge of online CSAM without
impinging on constitutional values.
6
Child Sexual Abuse Material (CSAM)—By the Numbers, National Center for Missing and Exploited Children
[NCMEC], https://www.missingkids.org/theissues/csam#bythenumbers.
7
E.g., United States v. Miller, 982 F. 3d 412, 424 (6th Cir. 2020); United States v. Stevenson, 727 F.3d 826, 830 (8th
Cir. 2013); United States v. Cameron, 699 F.3d 621, 637–38 (1st Cir. 2012); United States v. Richardson, 607 F.3d
357, 366–67 (4th Cir. 2010).
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NCMEC, supra note 6.
9
The EARN IT Act: Myth vs. Fact, available at
https://s3.documentcloud.org/documents/21194217/earn_it_act_of_2022_myth_vs_fact.pdf (relating to nearly
identical version of the bill introduced in the 117
th
Congress).
10
Kosseff, supra note 4, at 2; see also Kir Nuthi, The EARN IT Act Would Give Criminal Defendants a Get-Out-of-
Jail-Free Card, SLATE (Feb. 11, 2022, 9:59 AM), https://slate.com/technology/2022/02/earn-it-act-fourth-
amendment-violation.html; Riana Pfefferkorn, Ignoring EARN IT’s Fourth Amendment Problem Won’t Make It Go
Away, STAN. L. SCH. CTR. FOR INTERNET & SOC’Y (Mar. 9, 2022, 7:27 PM),
http://cyberlaw.stanford.edu/blog/2022/03/ignoring-earn-it%E2%80%99s-fourth-amendment-problem-
won%E2%80%99t-make-it-go-away.
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Signatories
(institutional affiliation is listed for identification purposes only)
Riana Pfefferkorn, Research Scholar, Stanford Internet Observatory
Eric Goldman, Associate Dean of Research, Professor of Law and Co-Director, High Tech Law
Institute, Santa Clara University
Derek E. Bambauer, Professor of Law, University of Arizona College of Law
Ahmed Ghappour, Associate Professor of Law, Boston University School of Law; General
Counsel, Nym Technologies
James Grimmelmann, Tessler Family Professor of Digital and Information Law, Cornell Law
School and Cornell Tech
Thomas E. Kadri, Assistant Professor, University of Georgia School of Law
Brian L. Owsley, Associate Professor of Law, UNT Dallas College of Law; former United
States Magistrate Judge
