The STOP CSAM Act – Preventing Child Sexual Exploitation Online
From 2012 to 2022, the number of reports concerning child sexual exploitation to the National Center for Missing & Exploited Children’s (“NCMEC”) CyberTipline increased by a factor of 77, with more than 32 million reports in the most recent year. Unfortunately, child sexual abuse material (“CSAM”) is rampant on the internet. As such, federal legislators have proposed the Strengthening Transparency and Obligation to Protect Children Suffering from Abuse and Mistreatment Act of 2023 (“STOP CSAM Act”) to stop the spread of CSAM online.
Current Federal Law on Online Child Sexual Exploitation
Currently, under 18 U.S.C. §2258A, online service providers have a duty to report the presence of CSAM or evidence of child sexual exploitation to NCMEC’s CyberTipline. If the provider knowingly and willfully fails to do so, the provider will be fined up to $150,000. If the provider continues to fail to report the presence of CSAM, they can be fined up to $300,000 for subsequent violations.
Proposed Legislation to Combat Online Child Sexual Exploitation
In short, the proposed legislation aims to strengthen online service providers reporting requirements and add additional protections to stop online child sexual exploitation. Accordingly, the legislation is geared to (1) support victims, (2) promote accountability and transparency by the tech industry, and (3) ensure that criminal defendants will receive sentences that reflect the severity of their crimes.
Specifically, the legislation has various provisions which will:
- Enhance protections for child victims and witness who testify in federal court in criminal prosecutions
- Facilitate restitution payments for child victims of exploitation and other crimes
- Strengthen the CyberTipline reporting requirements and transparency reporting
- Allow victims to request that online service providers remove CSAM content
- Require all programs that receive federal grants over $10,000 per year for servicing children to report child abuse
- Enhance the accountability of online service providers for hosting, storing, promoting, or facilitating CSAM
- Impose additional penalties for online service providers who fail to remove and/or report CSAM content
- Update the federal sentence guidelines for offenses involving CSAM to how criminal defendants use modern technology to commit crimes
Criticisms of the Proposed Legislation
While the proposed legislation has a very worthy goal, there are some criticisms of parts of the legislation. If the enhanced reporting requirements overwhelm NCMEC and law enforcement with reports which don’t contain CSAM or other illicit content, this may divert resources away from combating child sexual exploitation.
Moreover, the legislation creates the federal crime to “knowingly promote or facilitate” federal child exploitation crimes. The criticism here is of the drafting of the legislation, as it may end up suppressing lawful speech. Additionally, if users employ end-to-end encryption (which many use legitimately for privacy and security reasons), this may be used as evidence against online service providers. Further, it will likely require online service providers to employ content filters.
Finally, others find the “Report and Remove” option for victims to request removal of CSAM to be problematic. In essence, it places a burden on victims to police the Internet. They must notify online service providers with the hope that within 48 hours the CSAM will be removed. If the images aren’t removed, the victim will then have to hire a lawyer to bring a case with the Federal Trade Commission (“FTC”). Thereafter, they must be prepared to pay the online service provider if a judge determines the images aren’t illegal.
References:
- National Center for Missing & Exploited Children, The STOP CSAM Act. Available at: https://www.missingkids.org/content/dam/missingkids/pdfs/ncmec-support-stop-csam-act.pdf (last accessed Feb. 16, 2024).
- Senate Judiciary Chair Dick Durbin, STOP CSAM Act of 2023. Available at: https://www.durbin.senate.gov/imo/media/doc/STOP%20CSAM%20Act%20of%202023.pdf (last accessed Feb. 16, 2024).
- Emma Llansó, “The STOP CSAM Act Threatens Free Expression and Privacy Rights of Children and Adults,” Center for Democracy & Technology (May 2, 2023). Available at: https://cdt.org/insights/the-stop-csam-act-threatens-free-expression-and-privacy-rights-of-children-and-adults/ (last accessed Feb. 16, 2024).
- James R. Marsh, “The Stop CSAM Act is the worst piece of legislation for crime victims in 30 years,” Medium (Feb. 2, 2024). Available at: https://medium.com/@jamesrmarsh/the-stop-csam-act-is-the-worst-piece-of-legislation-for-crime-victims-in-30-years-3b198dddb9eb (last accessed Feb. 16, 2024).
Image: Free public domain CC0 photo