Section 1 Short title
This Act may be cited as the “Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2023” or the “EARN IT Act of 2023”.
Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2023
A BILL
To protect victims of online child sexual abuse, and for other purposes.
Sec. 2 Protecting victims of online child sexual abuse
Section 230(e) of the Communications Act of 1934 (47 U.S.C. 230(e)) is amended by adding at the end the following:
“(6) No effect on child sexual exploitation law—Nothing in this section (other than subsection (c)(2)(A)) shall be construed to impair or limit—
“(A) any claim in a civil action brought against a provider of an interactive computer service under section 2255 of title 18, United States Code, if the conduct underlying the claim constitutes a violation of section 2252 or section 2252A of that title;
“(B) any charge in a criminal prosecution brought against a provider of an interactive computer service under State law regarding the advertisement, promotion, presentation, distribution, or solicitation of child sexual abuse material, as defined in section 2256(8) of title 18, United States Code; or
“(C) any claim in a civil action brought against a provider of an interactive computer service under State law regarding the advertisement, promotion, presentation, distribution, or solicitation of child sexual abuse material, as defined in section 2256(8) of title 18, United States Code.
“(7) Encryption technologies
“(A) In general—Notwithstanding paragraph (6), none of the following actions or circumstances shall serve as an independent basis for liability of a provider of an interactive computer service for a claim or charge described in that paragraph:
“(i) The provider utilizes full end-to-end encrypted messaging services, device encryption, or other encryption services.
“(ii) The provider does not possess the information necessary to decrypt a communication.
“(iii) The provider fails to take an action that would otherwise undermine the ability of the provider to offer full end-to-end encrypted messaging services, device encryption, or other encryption services.
“(B) Consideration of evidence—Nothing in subparagraph (A) shall be construed to prohibit a court from considering evidence of actions or circumstances described in that subparagraph if the evidence is otherwise admissible.”
Sec. 3 Use of term “child sexual abuse material”
Sense of Congress— It is the sense of Congress that the term “child sexual abuse material” has the same legal meaning as the term “child pornography”, as that term was used in Federal statutes and case law before the date of enactment of this Act.
Amendments—
Title 5, United States Code— Chapter 65 of title 5, United States Code, is amended—
in section 6502(a)(2)(B), by striking “child pornography” and inserting “child sexual abuse material”; and
in section 6504(c)(2)(F), by striking “child pornography” and inserting “child sexual abuse material”.
in section 307(b)(3)(D) (6 U.S.C. 187(b)(3)(D)), by striking “child pornography” and inserting “child sexual abuse material”; and
in section 890A (6 U.S.C. 473)—
in subsection (b)(2)(A)(ii), by striking “child pornography” and inserting “child sexual abuse material”; and
in subsection (e)(3)(B)(ii), by striking “child pornography” and inserting “child sexual abuse material”.
Immigration and Nationality Act— Section 101(a)(43)(I) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(43)(I)) is amended by striking “child pornography” and inserting “child sexual abuse material”.
Small Business Jobs Act of 2010— Section 3011(c) of the Small Business Jobs Act of 2010 (12 U.S.C. 5710(c)) is amended by striking “child pornography” and inserting “child sexual abuse material”.
Broadband Data Improvement Act— Section 214(a)(2) of the Broadband Data Improvement Act (15 U.S.C. 6554(a)(2)) is amended by striking “child pornography” and inserting “child sexual abuse material”.
CAN–SPAM Act of 2003— Section 4(b)(2)(B) of the CAN–SPAM Act of 2003 (15 U.S.C. 7703(b)(2)(B)) is amended by striking “child pornography” and inserting “child sexual abuse material”.
Title 18, United States Code— Title 18, United States Code, is amended—
in section 1956(c)(7)(D), by striking “child pornography” each place the term appears and inserting “child sexual abuse material”;
in chapter 110—
in section 2251(e), by striking “child pornography” and inserting “child sexual abuse material”;
in section 2252(b)—
in paragraph (1), by striking “child pornography” and inserting “child sexual abuse material”; and
in paragraph (2), by striking “child pornography” and inserting “child sexual abuse material”;
in section 2252A—
in the section heading, by striking “material constituting or containing child pornography” and inserting “child sexual abuse material”;
in subsection (a)—
in paragraph (1), by striking “child pornography” and inserting “child sexual abuse material”;
in paragraph (2)—
in subparagraph (A), by striking “child pornography” and inserting “child sexual abuse material”; and
in subparagraph (B), by striking “material that contains child pornography” and inserting “child sexual abuse material”;
in paragraph (3)(A), by striking “child pornography” and inserting “child sexual abuse material”;
in paragraph (4)—
in subparagraph (A), by striking “child pornography” and inserting “child sexual abuse material”; and
in subparagraph (B), by striking “child pornography” and inserting “child sexual abuse material”;
in paragraph (5)—
in subparagraph (A), by striking “material that contains an image of child pornography” and inserting “item containing child sexual abuse material”; and
in subparagraph (B), by striking “material that contains an image of child pornography” and inserting “item containing child sexual abuse material”; and
in paragraph (7)—
by striking “child pornography” and inserting “child sexual abuse material”; and
by striking the period at the end and inserting a comma;
in subsection (b)—
in paragraph (1), by striking “child pornography” and inserting “child sexual abuse material”; and
in paragraph (2), by striking “child pornography” each place the term appears and inserting “child sexual abuse material”;
in subsection (c)—
in paragraph (1)(A), by striking “child pornography” and inserting “child sexual abuse material”;
in paragraph (2), by striking “child pornography” and inserting “child sexual abuse material”; and
in the undesignated matter following paragraph (2), by striking “child pornography” and inserting “child sexual abuse material”;
in subsection (d)(1), by striking “child pornography” and inserting “child sexual abuse material”; and
in subsection (e), by striking “child pornography” each place the term appears and inserting “child sexual abuse material”;
in section 2256(8)—
by striking “child pornography” and inserting “child sexual abuse material”; and
by striking the period at the end and inserting a semicolon;
in section 2257A(h)—
in paragraph (1)(A)(iii)—
by inserting a comma after “marketed”;
by striking “such than” and inserting “such that”; and
by striking “a visual depiction that is child pornography” and inserting “child sexual abuse material”; and
in paragraph (2), by striking “any visual depiction that is child pornography” and inserting “child sexual abuse material”;
in section 2258A—
in subsection (a)(2)—
in subparagraph (A), by striking “child pornography” and inserting “child sexual abuse material”; and
in subparagraph (B), by striking “child pornography” and inserting “child sexual abuse material”;
in subsection (b)—
in paragraph (4)—
in the paragraph heading, by striking “Visual depictions of apparent child pornography” and inserting “Apparent child sexual abuse material”; and
by striking “visual depiction of apparent child pornography” and inserting “apparent child sexual abuse material”; and
in paragraph (5), by striking “visual depiction of apparent child pornography” and inserting “apparent child sexual abuse material”; and
in subsection (g)(2)(B), by striking “visual depictions of apparent child pornography” and inserting “apparent child sexual abuse material”;
in section 2258C—
in the section heading, by striking “Use to combat child pornography of technical elements relating to reports made to the CyberTipline” and inserting “Use of technical elements from reports made to the CyberTipline to combat child sexual abuse material”;
in subsection (a)—
in paragraph (2), by striking “child pornography” and inserting “child sexual abuse material”; and
in paragraph (3), by striking “the actual visual depictions of apparent child pornography” and inserting “any apparent child sexual abuse material”;
in subsection (d), by striking “child pornography visual depiction” and inserting “child sexual abuse material visual depiction”; and
in subsection (e), by striking “child pornography visual depiction” and inserting “child sexual abuse material visual depiction”;
in section 2259—
in paragraph (b)(2)—
in the paragraph heading, by striking “child pornography” and inserting “child sexual abuse material”;
in the matter preceding subparagraph (A), by striking “child pornography” and inserting “child sexual abuse material”; and
in subparagraph (A), by striking “child pornography” and inserting “child sexual abuse material”;
in subsection (c)—
in paragraph (1)—
in the paragraph heading, by striking “Child pornography production” and inserting “Production of child sexual abuse material”;
by striking “child pornography production” and inserting “production of child sexual abuse material”; and
by striking “production of child pornography” and inserting “production of child sexual abuse material”;
in paragraph (2), in the matter preceding subparagraph (A), by striking “trafficking in child pornography offenses” each place the term appears and inserting “offenses for trafficking in child sexual abuse material”; and
in paragraph (3)—
in the paragraph heading, by striking “child pornography” and inserting “child sexual abuse material”; and
by striking “child pornography” and inserting “child sexual abuse material”; and
in subsection (d)(1)—
in subparagraph (A)—
by striking “child pornography” each place the term appears and inserting “child sexual abuse material”; and
by striking “Child Pornography Victims Reserve” and inserting “Reserve for Victims of Child Sexual Abuse Material”;
in subparagraph (B), by striking “child pornography” and inserting “child sexual abuse material”; and
in subparagraph (C)—
by striking “child pornography” and inserting “child sexual abuse material”; and
by striking “Child Pornography Victims Reserve” and inserting “Reserve for Victims of Child Sexual Abuse Material”;
in section 2259A—
in the section heading, by striking “child pornography cases” and inserting “cases involving child sexual abuse material”;
in subsection (a)—
in paragraph (2), by striking “child pornography” and inserting “child sexual abuse material”; and
in paragraph (3), by striking “a child pornography production offense” and inserting “an offense for production of child sexual abuse material”; and
in subsection (d)(2)(B), by striking “child pornography production or trafficking offense that the defendant committed” and inserting “offense for production of child sexual abuse material or trafficking in child sexual abuse material committed by the defendant”; and
in section 2259B—
in the section heading, by striking “Child pornography victims reserve” and inserting “Reserve for child sexual abuse material”;
in subsection (a), by striking “Child Pornography Victims Reserve” each place the term appears and inserting “Reserve for Victims of Child Sexual Abuse Material”;
in subsection (b), by striking “Child Pornography Victims Reserve” each place the term appears and inserting “Reserve for Victims of Child Sexual Abuse Material”; and
in subsection (c), by striking “Child Pornography Victims Reserve” and inserting “Reserve for Victims of Child Sexual Abuse Material”; and
in chapter 117—
in section 2423(f)(3), by striking “child pornography” and inserting “child sexual abuse material”; and
in section 2427—
in the section heading, by striking “child pornography” and inserting “child sexual abuse material”; and
by striking “child pornography” and inserting “child sexual abuse material”;
in section 2516—
in paragraph (1)(c), by striking “material constituting or containing child pornography” and inserting “child sexual abuse material”; and
in paragraph (2), by striking “child pornography production” and inserting “production of child sexual abuse material”;
in section 3014(h)(3), by striking “child pornography victims” and inserting “victims of child sexual abuse material”;
in section 3509—
in subsection (a)(6), by striking “child pornography” and inserting “child sexual abuse material”; and
in subsection (m)—
in the subsection heading, by striking “Child Pornography” and inserting “Child Sexual Abuse Material”;
in paragraph (1), by striking “property or material that constitutes child pornography (as defined by section 2256 of this title)” and inserting “child sexual abuse material (as defined by section 2256 of this title), or property or items containing such material,”;
in paragraph (2)—
in subparagraph (A)—
by striking “property or material that constitutes child pornography (as defined by section 2256 of this title)” and inserting “child sexual abuse material (as defined by section 2256 of this title), or property or items containing such material,”; and
by striking “the property or material” and inserting “the child sexual abuse material, property, or items”; and
in subparagraph (B), by striking “property or material” each place the term appears and inserting “child sexual abuse material, property, or items”; and
in paragraph (3)—
by striking “property or material that constitutes child pornography, as defined under section 2256(8)” and inserting “child sexual abuse material (as defined by section 2256 of this title)”;
by striking “such child pornography” and inserting “such child sexual abuse material”; and
by striking “Such property or material” and inserting “Such child sexual abuse material”; and
in section 3632(d)(4)(D)(xlii), by striking “material constituting or containing child pornography” and inserting “child sexual abuse material”.
Tariff Act of 1930— Section 583(a)(2)(B) of the Tariff Act of 1930 (19 U.S.C. 1583(a)(2)(B)) is amended by striking “child pornography” and inserting “child sexual abuse material”.
Elementary and Secondary Education Act of 1965— Section 4121 of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 7131) is amended—
in subsection (a)—
in paragraph (1)(A)(ii), by striking “child pornography” and inserting “child sexual abuse material”; and
in paragraph (2)(A)(ii), by striking “child pornography” and inserting “child sexual abuse material”; and
in subsection (e)(5)—
in the paragraph heading, by striking “Child pornography” and inserting “Child sexual abuse material”; and
by striking “child pornography” and inserting “child sexual abuse material”.
Museum and Library Services Act— Section 224(f) of the Museum and Library Services Act (20 U.S.C. 9134(f)) is amended—
in paragraph (1)—
in subparagraph (A)(i)(II), by striking “child pornography” and inserting “child sexual abuse material”; and
in subparagraph (B)(i)(II), by striking “child pornography” and inserting “child sexual abuse material”; and
in paragraph (7)(A)—
in the subparagraph heading, by striking “Child pornography” and inserting “Child sexual abuse material”; and
by striking “child pornography” and inserting “child sexual abuse material”.
Omnibus Crime Control and Safe Streets Act of 1968— Section 3031(b)(3) of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (34 U.S.C. 10721(b)(3)) is amended by striking “child pornography” and inserting “child sexual abuse material”.
Juvenile Justice and Delinquency Prevention Act of 1974— Section 404(b)(1)(K) of the Juvenile Justice and Delinquency Prevention Act of 1974 (34 U.S.C. 11293(b)(1)(K)) is amended—
in clause (i)(I)(aa), by striking “child pornography” and inserting “child sexual abuse material”; and
in clause (ii), by striking “child pornography” and inserting “child sexual abuse material”.
Victims of Crime Act of 1984— Section 1402(d)(6)(A) of the Victims of Crime Act of 1984 (34 U.S.C. 20101(d)(6)(A)) is amended by striking “Child Pornography Victims Reserve” and inserting “Reserve for Victims of Child Sexual Abuse Material”.
Victims of Child Abuse Act of 1990— The Victims of Child Abuse Act of 1990 (34 U.S.C. 20301 et seq.) is amended—
in section 212(4) (34 U.S.C. 20302(4)), by striking “child pornography” and inserting “child sexual abuse material”;
in section 214(b) (34 U.S.C. 20304(b))—
in the subsection heading, by striking “Child Pornography” and inserting “Child Sexual Abuse Material”; and
by striking “child pornography” and inserting “child sexual abuse material”; and
in section 226(c)(6) (34 U.S.C. 20341(c)(6)), by striking “child pornography” and inserting “child sexual abuse material”.
Sex Offender Registration and Notification Act— Section 111 of the Sex Offender Registration and Notification Act (34 U.S.C. 20911) is amended—
in paragraph (3)(B)(iii), by striking “child pornography” and inserting “child sexual abuse material”; and
in paragraph (7)(G), by striking “child pornography” and inserting “child sexual abuse material”.
Adam Walsh Child Protection and Safety Act of 2006— Section 143(b)(3) of the Adam Walsh Child Protection and Safety Act of 2006 (34 U.S.C. 20942(b)(3)) is amended by striking “child pornography and enticement cases” and inserting “cases involving child sexual abuse material and enticement of children”.
PROTECT Our Children Act of 2008— The PROTECT Our Children Act of 2008 (34 U.S.C. 21101 et seq.) is amended—
in section 101(c) (34 U.S.C. 21111(c))—
in paragraph (16)—
in the matter preceding subparagraph (A), by striking “child pornography trafficking” and inserting “trafficking in child sexual abuse material”;
in subparagraph (A), by striking “child pornography” and inserting “child sexual abuse material”;
in subparagraph (B), by striking “child pornography” and inserting “child sexual abuse material”;
in subparagraph (C), by striking “child pornography” and inserting “child sexual abuse material”; and
in subparagraph (D), by striking “child pornography” and inserting “child sexual abuse material”; and
in paragraph (17)(A), by striking “child pornography” and inserting “child sexual abuse material”; and
in section 105(e)(1)(C) (34 U.S.C. 21115(e)(1)(C)), by striking “child pornography trafficking” and inserting “trafficking in child sexual abuse material”.
Social Security Act— Section 471(a)(20)(A)(i) of the Social Security Act (42 U.S.C. 671(a)(20)(A)(i)) is amended by striking “child pornography” and inserting “offenses involving child sexual abuse material”.
Privacy Protection Act of 1980— Section 101 of the Privacy Protection Act of 1980 (42 U.S.C. 2000aa) is amended—
in subsection (a)(1), by striking “child pornography” and inserting “child sexual abuse material”; and
in subsection (b)(1), by striking “child pornography” and inserting “child sexual abuse material”.
Child Care and Development Block Grant Act of 1990— Section 658H(c)(1) of the Child Care and Development Block Grant Act of 1990 (42 U.S.C. 9858f(c)(1)) is amended—
in subparagraph (D)(iii), by striking “child pornography” and inserting “offenses relating to child sexual abuse material”; and
in subparagraph (E), by striking “child pornography” and inserting “child sexual abuse material”.
Communications Act of 1934— Title II of the Communications Act of 1934 (47 U.S.C. 201 et seq.) is amended—
in section 223 (47 U.S.C. 223)—
in subsection (a)(1)—
in subparagraph (A), in the undesignated matter following clause (ii), by striking “child pornography” and inserting “which constitutes child sexual abuse material”; and
in subparagraph (B), in the undesignated matter following clause (ii), by striking “child pornography” and inserting “which constitutes child sexual abuse material”; and
in subsection (d)(1), in the undesignated matter following subparagraph (B), by striking “child pornography” and inserting “that constitutes child sexual abuse material”; and
in section 254(h) (47 U.S.C. 254(h))—
in paragraph (5)—
in subparagraph (B)(i)(II), by striking “child pornography” and inserting “child sexual abuse material”; and
in subparagraph (C)(i)(II), by striking “child pornography” and inserting “child sexual abuse material”;
in paragraph (6)—
in subparagraph (B)(i)(II), by striking “child pornography” and inserting “child sexual abuse material”; and
in subparagraph (C)(i)(II), by striking “child pornography” and inserting “child sexual abuse material”; and
in paragraph (7)(F)—
in the subparagraph heading, by striking “Child pornography” and inserting “Child sexual abuse material”; and
by striking “child pornography” and inserting “child sexual abuse material”.
Table of sections amendments—
Chapter 110 of title 18— The table of sections for chapter 110 of title 18, United States Code, is amended—
by striking the item relating to section 2252A and inserting the following:
by striking the item relating to section 2258C and inserting the following:
by striking the item relating to section 2259A and inserting the following:
by striking the item relating to section 2259B and inserting the following:
Chapter 117 of title 18— The table of sections for chapter 117 of title 18, United States Code, is amended by striking the item relating to section 2427 and inserting the following:
Amendment to the Federal sentencing guidelines— Pursuant to its authority under section 994(p) of title 28, United States Code, and in accordance with this section, the United States Sentencing Commission shall amend the Federal sentencing guidelines, including application notes, to replace the terms “child pornography” and “child pornographic material” with “child sexual abuse material”.
Effective date— The amendments made by this section to title 18 of the United States Code shall apply to conduct that occurred before, on, or after the date of enactment of this Act.
Sec. 4 Modernizing the Cybertipline
In general— Chapter 110 of title 18, United States Code, is amended—
in section 2258A, as amended by section 6(b) of this Act—
in subsection (a)—
in paragraph (1)(B)(ii), by inserting after “facts or circumstances” the following: “, including any available facts or circumstances sufficient to identify and locate each minor and each involved individual,”; and
in paragraph (2)(A)—
by inserting “1591 (if the violation involves a minor),” before “2251,”; and
by striking “or 2260” and inserting “2260, or 2422(b)”;
in subsection (b)—
in paragraph (1)—
by inserting “or location” after “identity”; and
by striking “other identifying information,” and inserting “other information which may identify or locate the involved individual,”;
by redesignating paragraphs (2) through (5) as paragraphs (3) through (6), respectively;
by inserting after paragraph (1) the following:
“(2) Information about the involved minor—Information relating to the identity or location of any involved minor, which may, to the extent reasonably practicable, include the electronic mail address, Internet Protocol address, uniform resource locator, or any other information which may identify or locate any involved minor, including self-reported identifying information.”
by adding at the end the following:
“(7) Formatting of reports—When in its discretion a provider voluntarily includes any content described in this subsection in a report to the CyberTipline, the provider shall use best efforts to ensure that the report conforms with the structure of the CyberTipline.”
in subsection (d)(5)(B)—
in clause (i), by striking “forwarded” and inserting “made available”; and
in clause (ii), by striking “forwarded” and inserting “made available”;
in section 2258B—
in subsection (a)—
by striking “arising from the performance” and inserting the following:
“(1) the performance”
in paragraph (1), as so designated, by striking “may not be brought in any Federal or State court.” and inserting a semicolon; and
by adding at the end the following:
“(2) transmitting, distributing, or mailing child sexual abuse material to any Federal, State, or local law enforcement agency, or giving such agency access to child sexual abuse material, in response to a search warrant, court order, or other legal process issued by such agency; or
“(3) research voluntarily undertaken by the provider or domain name registrar using any material being preserved under section 2258A(h), if the research is only for the purpose of—
“(A) improving or facilitating reporting under this section, section 2258A, or section 2258C; or
“(B) stopping the online sexual exploitation of children.”
in subsection (b)(2)(C)—
by striking “the performance of”;
by inserting “described in or performed” after “function”; and
by striking “this section, sections” and inserting “this section or section”; and
in section 2258C, as amended by section 6(b) of this Act—
in the section heading, by striking “the CyberTipline” and inserting “NCMEC”;
in subsection (a)—
in paragraph (1)—
by striking “NCMEC” and inserting the following:
“(A) Provision to providers—NCMEC”
in subparagraph (A), as so designated, by inserting “or submission to the child victim identification program described in section 404(b)(1)(K)(ii) of the Juvenile Justice and Delinquency Prevention Act of 1974 (34 U.S.C. 11293(b)(1)(K)(ii))” after “CyberTipline report”; and
by adding at the end the following:
“(B) Provision to non-profit entities—NCMEC may provide hash values or similar technical identifiers associated with visual depictions provided in a CyberTipline report or submission to the child victim identification program described in section 404(b)(1)(K)(ii) of the Juvenile Justice and Delinquency Prevention Act of 1974 (34 U.S.C. 11293(b)(1)(K)(ii)) to a non-profit entity for the sole and exclusive purpose of preventing and curtailing the online sexual exploitation of children.”
in paragraph (2)—
by inserting “(A)” after “(1)”;
by inserting “or submission to the child victim identification program described in section 404(b)(1)(K)(ii) of the Juvenile Justice and Delinquency Prevention Act of 1974 (34 U.S.C. 11293(b)(1)(K)(ii))” after “CyberTipline report”; and
by adding at the end the following: “The elements authorized under paragraph (1)(B) shall be limited to hash values or similar technical identifiers associated with visual depictions provided in a CyberTipline report or submission to the child victim identification program described in section 404(b)(1)(K)(ii) of the Juvenile Justice and Delinquency Prevention Act of 1974 (34 U.S.C. 11293(b)(1)(K)(ii)).”; and
in subsection (d), by inserting “or to the child victim identification program described in section 404(b)(1)(K)(ii) of the Juvenile Justice and Delinquency Prevention Act of 1974 (34 U.S.C. 11293(b)(1)(K)(ii))” after “CyberTipline”.
Technical and conforming amendment— The table of sections for chapter 110 of title 18, United States Code, is amended by striking the item relating to section 2258C (as amended by section 6(c)(1)(B) of this Act) and inserting the following:
Sec. 5 Eliminating network distribution of child exploitation
Section 2258A(h) of title 18, United States Code, is amended—
in paragraph (1), by striking “90 days” and inserting “1 year”; and
by adding at the end the following:
“(5) Extension of preservation—A provider of a report to the CyberTipline may voluntarily preserve the contents provided in the report (including any comingled content described in paragraph (2)) for longer than 1 year after the submission to the CyberTipline for the purpose of reducing the proliferation of online child sexual exploitation or preventing the online sexual exploitation of children.”
Sec. 6 Severability
If any provision of this Act or any amendment made by this Act, or any application of such provision or amendment to any person or circumstance, is held to be unconstitutional, the remainder of the provisions of this Act and the amendments made by this Act, and the application of the provision or amendment to any other person or circumstance, shall not be affected.