Advocates of the recently marked-up Eliminating Abusive and Rampant Neglect of Interactive Technologies Act or EARN IT Act intend for the bill to solve the issue of child sexual abuse material (CSAM) online. By making platforms increasingly liable for CSAM passed through encrypted communications, many companies may remove these privacy features and even actively monitor private messages for CSAM. Nothing is legally wrong with a private company choosing to do this, but when compelled by the government, these companies become de facto “state actors.” As such, all searches become subject to the Fourth Amendment and require a warrant or the evidence is inadmissible in a court of law.

Technically the Fourth Amendment only applies to state actors and specifies that a warrant or probable cause is required before searching private citizens. Since the amendment does not apply to private entities, state actors could theoretically compel private entities to search citizens for them, removing the necessity for a warrant. In the interest of consistency, compulsion by state agents is covered by the Fourth Amendment as a result of Skinner v. Railway Labor Executives Association and clarified under US v. Stevenson.

In Skinner, the courts deemed that workers in the railway industry receive Fourth Amendment protections regarding mandatory drug testing. Even though railway companies are private, the level to which they are subject to state regulations turns them into legal “state actors.” As a “state actor,” any enforcement policies are judged as if they came from a state agency. Hence Fourth Amendment protections apply.

In Stevenson, CSAM was emailed using AOL services, which AOL caught through email scanning and sent to the National Center for Missing and Exploited Children. The National Center then alerted local criminal agencies, who arrested Stevenson, the perpetrator. Stevenson argued the CSAM in question was inadmissible in court because AOL was subject to the Fourth Amendment. The courts rejected Stevenson’s appeal, ruling that searches for CSAM by AOL are not subject to Fourth Amendment protections because said searches were “primarily the result of private initiative.” Meaning AOL initiated these searches under minimal compulsion from state agents.

Using these cases as precedent, the EARN IT Act may elevate the level to which private online platforms are compelled by state agencies, which could result in Fourth Amendment protections being applied to CSAM searches. If that were to happen, any CSAM uncovered without a warrant could be inadmissible in court, effectively protecting predators from criminal litigation.

The original 2020 EARN IT Act had very explicit Fourth Amendment issues, mandating that online platforms monitor conversations for CSAM. The bill’s language would have resulted in searches not being “primarily the result of private initiative.” Despite removing these mandates, the bill still has two issues that could invoke the Fourth Amendment.

The first issue is that despite not mandating CSAM searches, the EARN IT Act could still make online platforms liable for not monitoring private conversations. Liability for failing to search for CSAM could be viewed as another form of search compulsion, making said searches not “primarily the result of private initiative.” For this reason, the National Center for Missing and Exploited Children does not require that private firms monitor or search consumers for CSAM.

Secondly, the amended EARN IT Act granted Section 230 exceptions to state laws regarding CSAM liability. Effectively submitting online platforms to the harshest state CSAM liability laws. The Fourth Amendment may apply if any of those laws compel online platforms to monitor private conversations.

If this is the case, as argued by various legal experts, then any CSAM uncovered as a result of the EARN IT Act could be suppressed in court. This outcome would effectively protect predators from the law, entitling them to an increased level of constitutional protection. As soon as the state begins to compel companies to monitor citizens, enforcement becomes harder, not easier.

Isaac Schick is a policy analyst at the American Consumer Institute, a nonprofit education and research organization. For more information about the Institute, visit www.TheAmericanConsumer.Org or follow us on Twitter @ConsumerPal.

This article was also published on Medium.