Questioning Everything Propaganda
Critics of the STOP CSAM Act and EARN IT Act frequently describe this dynamic as a slippery slope that could normalize pervasive surveillance across all platforms, effectively transforming them into extensions of state authority while eroding user privacy. By imposing liability for child sexual abuse material (CSAM) under broad "reckless" or negligence standards, these bills create incentives for even privacy-focused platforms to implement proactive scanning or weaken end-to-end encryption (E2EE) to avoid lawsuits and penalties. This pressure could drive a homogenization of practices industry-wide, where platforms—faced with the inevitability of bad actors exploiting secure systems—conform to government-preferred monitoring to mitigate risks, blurring the line between private entities and state actors. As bad actors predictably migrate to platforms that prioritize privacy (e.g., those using strong E2EE like Signal or ProtonMail), any undetected abuse could trigger liability claims, forcing those platforms to adapt or face existential threats, ultimately extending government influence over digital communications without direct mandates.
Migration of Bad Actors and Liability Trap: Privacy-respecting platforms become attractive havens for illicit activity because E2EE prevents server-side detection of CSAM. Under these bills, if abuse occurs and is later discovered (e.g., via user reports or law enforcement tips), platforms could be held liable for "recklessly" enabling it by not scanning—even if they lack the technical means to do so without compromising security. This creates a feedback loop: abuse leads to lawsuits, which push platforms toward client-side scanning or E2EE backdoors to demonstrate due diligence, normalizing surveillance tools that could expand beyond CSAM to other content. Organizations like the Electronic Frontier Foundation (EFF) and Center for Democracy & Technology (CDT) warn that this incentivizes over-censorship and over-reporting, overwhelming law enforcement with false positives while chilling free speech, particularly for marginalized communities (e.g., LGBTQ+ content misflagged as exploitative).
Normalization and State Actor Status: As more platforms conform to avoid liability—adopting "best practices" from the EARN IT commission or facing civil claims under STOP CSAM—the industry standard shifts toward mandatory-like monitoring. Critics argue this coercion via liability threats could classify platforms as state actors under the 4th Amendment, as their scans become de facto government-directed. This might render CSAM evidence inadmissible in court (undermining prosecutions) while enabling broader surveillance creep, such as states using the framework to target reproductive health info or political dissent under the guise of child protection. ARTICLE 19 and the American Action Forum highlight how this risks a "race to the bottom" for privacy, where even niche or international platforms feel compelled to comply to operate in the U.S. market.
Broader Implications: This slope could extend to other laws, as seen with FOSTA/SESTA (a prior anti-trafficking bill that critics say backfired by driving sex work underground and complicating investigations). The ACLU notes that such bills invite "constant government surveillance," over-targeting vulnerable users and weakening tools that protect everyone from hackers, authoritarian regimes, and corporate overreach.
Proponents, including bill sponsors like Sens. Lindsey Graham and Richard Blumenthal, maintain that the laws don't create a slippery slope or force platforms into state actor roles. They argue that liability is limited to knowing or reckless facilitation of CSAM, not privacy features alone, and that companies retain flexibility—e.g., the bills explicitly state encryption can't be the sole basis for liability. Groups like the International Justice Mission emphasize that the focus is accountability for complicity in exploitation, not broad surveillance, and that fears of privacy erosion are "unfounded" since only CSAM is targeted. They contend that without such measures, platforms remain unmotivated to address CSAM proliferation, and the bills won't homogenize practices unless companies choose inaction.
The outcome depends on how courts interpret "state action" and liability thresholds if the bills pass. As of January 2026, neither has become law, but ongoing advocacy keeps the debate alive, with potential for amendments or judicial challenges to shape the slope's trajectory.
Additionally, the scanning mechanisms encouraged by these bills introduce significant privacy invasions, even when conducted by private firms, because they involve automated and human review of users' private communications and content—often leading to the exposure of non-CSAM material through false positives and overbroad monitoring. Here's how this plays out:
Client-Side Scanning as a Core Enabler: To comply with liability standards without abandoning E2EE, platforms are pressured to implement client-side scanning, where content is analyzed on users' devices before encryption and upload. This scans photos, messages, or files for CSAM hashes or perceptual matches (e.g., using tools like Apple's NeuralHash, which has been prototyped but criticized for vulnerabilities). While intended to flag only illegal content, the process inherently accesses and processes all user data locally, creating risks of mission creep where scans could expand to other categories (e.g., hate speech or terrorism-related material) once the infrastructure is in place. Privacy experts like those at the EFF argue this undermines the fundamental promise of E2EE, turning devices into surveillance tools that report back to the platform (and potentially law enforcement) without user consent.
Human Review of Flagged Content by Private Firms: When automated scans flag potential CSAM (e.g., via hash matching or AI classifiers), private platform employees or contractors must manually review the content to confirm before reporting to authorities like the National Center for Missing & Exploited Children (NCMEC). This "human viewing" stage invades privacy because flagged items often include false positives—innocent content like family photos, medical images, or art that algorithms misidentify due to error rates (e.g., NeuralHash has documented collision issues where benign images match CSAM hashes). As a result, private firm reviewers access users' intimate, non-illegal data, such as private messages or photos, without a warrant or probable cause. The CDT highlights how this exposes sensitive information (e.g., health records or political discussions) to corporate scrutiny, normalizing a system where privacy is sacrificed for safety. In practice, platforms like Meta already review millions of flags annually, with error rates leading to wrongful account suspensions and data leaks.
Broader Privacy Erosion and Data Sharing: Once flagged and reviewed, content is often shared with law enforcement, but the initial invasion occurs within the private firm. This creates a pipeline where users' data is preemptively scrutinized, fostering self-censorship as people avoid sharing anything that might trigger flags (e.g., journalists reporting on abuse or educators discussing sensitive topics). Moreover, the data from scans can be retained or used for other purposes, like training AI models, amplifying privacy risks. Critics, including the ACLU, warn that this privatized surveillance—coerced by government liability threats—effectively outsources 4th Amendment violations, as firms act as proxies for state interests without the same accountability.
Supporters counter that such reviews are narrowly tailored to CSAM and that privacy safeguards (e.g., anonymization or limited retention) mitigate harms, but evidence from existing systems shows persistent overreach and errors. Overall, this framework risks turning private communications into a monitored space, where the mere possibility of bad actors justifies invasive practices that affect everyone.