The Threat of the STOP CSAM Act to Free Speech

​Every decent person deplores child sexual abuse material (CSAM) and supports every reasonable effort to eradicate it. Existing laws already make it a crime for anyone – including social media platforms – to “facilitate,” “distribute,” “promote,” or “possess” CSAM.

But a new proposal would inadvertently threaten the privacy and encryption that shield women and children from stalkers, whistleblowers from wrongdoers, and journalists and dissidents from cartels and tyrants. It would also incentivize lawsuits, based on loose standards, that could chill and censor legitimate speech.

These are the problems with the STOP CSAM Act, which has been quietly added to the latest defense authorization bill. It’s the same crossroads we arrived at in 2023, when Electronic Frontier Foundation (EFF) contributors Jason Kelley and Sophia Cope detailed why this bill’s approach is flawed.

The STOP CSAM Act would allow lawsuits that could compromise the privacy of millions of Americans who simply wish their digital communications to be as private as their conversations with friends in a park. Encryption isn’t a crime or a problem. In the digital age, it’s how we ensure true privacy.

Because digital privacy supports digital expression, the STOP CSAM Act and similar measures could also threaten all manner of speech. All Americans, including minors, have an inherent right to access the internet as “our nation’s primary marketplace of ideas.”

As EFF puts it, the punitive regulatory regime imposed by this legislation would “certainly be gamed by bad actors, exposing platforms and users to bogus takedown requests, likely involving First Amendment-protected content …To mitigate the risk of new civil lawsuits and administrative proceedings, platforms would censor more and more user content and accounts, with minimal regard as to whether that content is in fact legal.”

EFF is not spinning wild theories. These are likely outcomes.

The bill is a trial lawyer’s dream, basing liability on “recklessness” – allowing plaintiffs to recover at least $300,000, punitive damages, and litigation costs. This could give platforms an incentive to remove anything remotely edgy.

The bill’s nebulous crimes of “promotion” and “aiding and abetting” could reach beyond illegal images to discussions, links, searches, private messages, or services. This could easily suppress lawful conversations about sexuality, abuse recovery, reproductive health, or sex education. When the penalty for leaving something remotely questionable online is so enormous, platforms will embrace a “remove first and ask questions later” approach.

Under the revised bill, encryption alone would not constitute a basis for civil liability, but it could still be used as evidence in litigation. This would pressure companies to scan messages, weaken encryption, or abandon encryption altogether. Such pressure creates the risk of mistaking ordinary conversations among teenagers, parents, teachers, doctors, or counselors for evidence of grooming or exploitation.

We applaud congressional efforts to blot out CSAM and punish its purveyors. But this bill would create a system with so many uncertainties and financial threats that private platforms would be forced to become overzealous censorship agents.
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Simply put, this well-intentioned bill has too many unintended consequences.

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