Imagine you are working with the police to track down someone who has distributed your child’s image online only to be told that the social media company storing the image had deleted it. How would you feel if a 90 day policy window closed preventing you from getting justice against your child’s abuser? A new federal bill seeks to stop that from happening by giving police and prosecutors more time to build their cases.
On December 10, 2019, Representative Anthony Gonzalez, a Republican from Ohio, submitted a 2-page bill with 7 co-sponsors showing bi-partisan support. HR 5376, the Eliminate Network Distribution of Children Exploitation Act (END Child Exploitation Act), proposes one simply thing: to extend the amount of time communications companies like Google, Dropbox, and Facebook are required to retain child sexual abuse materials they find on their platforms.
Right now, federal law requires these providers to report any child pornography or other sexually abusive content to a federal CyberTipline and preserve the contents of those reports for 90 days while investigators follow up on the tips. But for many state and local police departments, 90 days is simply not enough time to complete their investigation. The END Child Exploitation Act would expand that period to 180 days. It would also allow providers to voluntarily retain the images and videos longer if doing so is part of an effort to “reduc[e] the proliferation of online child sexual exploitation or prevent the online sexual exploitation of children.”
In late 2019, the New York Times reported that cloud storage and social media companies were facing an overwhelming number of digital child pornography images. In 2018, a record 45 million photos and videos were flagged as Child Sexual Abuse Material (CSAM). That number has been growing uncontrollably for more than a decade. In 2008, the number was less than 1 million images, but Washington already felt it was facing a crisis. Tech companies, law enforcement agencies, and federal legislators came together to create the PROTECT Our Children Act, which became law on October 13, 2008.
But as the problem continued to grow, the law, and the law enforcement agencies who enforce it can’t keep up. The Justice Department, which the PROTECT Our Children Act empowered to fight the problem, never even wrote mandatory monitoring reports or assigned a senior-executive level employee to handle the matter. At the same time, law enforcement agencies have difficulty recruiting and retaining skilled IT professionals with the technological knowledge and ability to perform the investigations. Some have taken to prioritizing cases based on the age of the victim. The New York Times reports:
“‘We go home and think, “Good grief, the fact that we have to prioritize by age is just really disturbing,”’ said Detective Paula Meares, who has investigated child sex crimes for more than 10 years at the Los Angeles Police Department.”
According to the Times, one significant bottleneck in investigating child sexual abuse materials online is the tech companies themselves. Microsoft has developed tools to automatically screen for child pornography and other illegal or illicit content, but it and other tech companies refuse to use it consistently across all their platforms. Federal law requires them to report any CSAM they find, but they aren’t required to look. When investigators send requests for information, they can take weeks or months to respond, if at all. By then, the 90-day retention window has often passed, and their response is simply that the company has no records.
Funding continues to be a problem as well. Congress has allocated $60 million to the issue, but diverted about half of that money to state and local law enforcement rather than the Department of Justice, which oversees investigations that cross state lines. The Department of Homeland Security has also diverted nearly $6 million from cybercrimes to immigration enforcement -- a 40% budget cut.
The problem isn’t just with the government either. The National Center for Missing and Exploited Children faces ever-evolving technological encryption using 20-year-old technology. With their limited resources, it is hard to keep engineers on the job.
The END Child Exploitation Act hopes to help investigators catch more of these cyber-criminals by forcing tech companies to hold on to the reported images long enough for investigators to complete their investigations. The bill was immediately referred to the House Judiciary Committee, but there has been no activity since that time. However, simply extending the timeline won’t solve all the problems facing law enforcement agencies and child sex abuse survivors’ advocates. Sex abuse victims’ advocates, legislators, and law enforcement will need to work together to find new solutions to protect children and their families from this ever-growing threat to their privacy and personal dignity.
At Eisenberg & Baum, our sexual abuse attorneys to stand beside child victims and their families against their abusers and the social media companies. We know how to work with law enforcement and tech companies to get the evidence you need to protect your loved ones. Contact us today to schedule a free consultation.