- GOP South Carolina Sen. Lindsey Graham’s EARN IT Act is a bipartisan effort to protect children online.
- But tech experts said the act would violate Section 230 of the Communications Decency Act and has the ability to “end the internet as we know it.”
- “The EARN IT Act could actually make law enforcement’s job significantly harder by ending today’s close cooperation between law enforcement and tech companies,” one expert said.
The bipartisan EARN IT Act tackles the crucial issue of protecting children on the internet, but tech experts warn that it not only violates Section 230 but also has the ability to “end the internet as we know it.”
Republican South Carolina Sen. Lindsey Graham introduced the EARN IT Act on March 5 in collaboration with Democratic Sens. Richard Blumenthal of Connecticut, Diane Feinstein of California, Doug Jones of Alabama, Robert Casey of Pennsylvania, Shelden Whitehouse of Rhode Island, and Dick Durbin of Illinois as well as Republican Sens. Joni Ernst of Iowa, Josh Hawley of Missouri, and Kevin Cramer of North Dakota.
The EARN IT Act
The act promises to establish a National Commission on Online Child Sexual Exploitation Prevention and seeks to develop “recommended best practices that providers of interactive computer services may choose to implement to prevent, reduce, and respond to the online sexual exploitation of children.”
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This includes enticement, grooming, sex trafficking, and child sexual abuse as well as the proliferation of online child sexual abuse material.
But tech experts told the Daily Caller News Foundation that it would “end the internet as we know it” and seriously undermine encryption.
— EFF (@EFF) March 12, 2020
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“The EARN IT Act could actually make law enforcement’s job significantly harder by ending today’s close cooperation between law enforcement and tech companies,” TechFreedom Director of Civil Liberties Ashkhen Kazaryan told the DCNF.
Child protection advocates have expressed frustration that current laws allow companies to decide how to report Cyber Security Assessment and Management to the National Center for Missing & Exploited Children, Kazaryan said.
“But Congress consciously chose to make this system voluntary for a good reason: compelling companies to handle reports in specific ways risks converting them into ‘government actors’ for Fourth Amendment purposes,” she said. “That would mean courts would have to issue a warrant before nominally private companies could ‘search’ private communications.”
Kazaryan said the EARN IT Act’s structure “reflects a calculated attempt to circumvent the Fourth Amendment by dressing up what will effectively be legal mandates as mere ‘best practices.’”
“There’s good reason to think courts will see through this sham,” she added. “If they do, today’s largely effective system for policing CSAM will come crashing down overnight — and those convicted of generating, disseminating and consuming CSAM could walk free.”
Weissman further maintains that the bill would undermine encryption by allowing the attorney general to force companies to compromise both the security of their products and the privacy of law abiding users.
“For nearly three decades, U.S. law enforcement and intelligence agencies have been trying to restrict the private sector’s use of encryption,” she said, offering the example of Congress considering requiring tech companies to “retain extensive logs of user activity” in 2011 — an idea that she says was abandoned after backlash.
“Courts have repeatedly blocked efforts to mandate age-verification online because it restricts anonymous speech. But the EARN IT Act would give DOJ a short-cut, presenting Congress with de facto legal mandates that lawmakers would never pass on their own,” she said.
“This goes far, far beyond addressing the shortcomings of today’s system of handling CSAM. It would mean giving a blank check to law enforcement to ban strong encryption, require extensive data retention, age-gate users, and much, much more.”
Shoshanna Weissman, senior manager of Digital Media and Fellow at the R Street Institute, also said the EARN IT Act could be “counterproductive to the overall goal of the bill as well as to maintaining a free and open internet.”
“I’m not a fan of really any means this bill takes,” she told the DCNF. “I would be open to seeing it restructured, because there are always aspects I’m sure I’ve failed to consider. However, the structure of the bill is just not conducive to its goals.”
“Larger platforms such as Facebook would likely have to divert resources away from other goals, such as fighting abusive speech or even terrorism, toward the EARN IT Act’s best practices.” https://t.co/vJATaPFNd3 @dcexaminer @senatorshoshana @DaisySRivkin
— R Street Institute (@RSI) March 11, 2020
Weissman’s concerns mainly center around infringements on Section 230, a provision of the Communications Decency Act saying that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
Section 230 encourages both content moderation and a free and open internet, Weissman said.
“The specific way in which this bill removes 230 protections would likely discourage platforms from wanting users to be able to post at all,” she added.
“Furthermore, conditioning 230 immunity on practices that are to be determined is an arbitrary and dangerous idea,” the R Street Institute senior manager said. “Finally, the fact that the attorney general has ultimate say regarding who does and does not get immunity makes me worried it will become a tool for arbitrary power and favoritism wielded by the AG — current and future.”
So Why Are Senators Pushing It?
Graham, the sponsor of the bill, did not respond to requests for comment from the DCNF regarding the EARN IT Act’s implications for Section 230. Kazaryan suggests “techlash” may be at the root of the senators’ approval of the bill.
“Tech companies aren’t the public’s sweethearts anymore,” Kazaryan said. “Multiple scandals at different companies, a new political strategy of being tough on ‘Big Tech’ have led to a phenomenon known as ‘techlash.’”
Weissman said that while she believes the senators “care and are of pure intention,” some legislators don’t fully understand “how vital 230 is for a free and open internet.”
“It’s not something that ought to be conditioned generally, let alone conditioned on practices that haven’t even been determined yet,” she said.
Kazaryan added that protecting children is “obviously good” and should be supported.
“During the EARN IT Act hearing the Senators all acknowledged the lack of funding and resources for investigating these horrific crimes, but for some reason EARN IT didn’t include any funding for law enforcement,” she said.
“This bill is a ploy to get more power into hands of the DOJ and it is heartbreaking to see that they are using children and their safety to get there while putting the children in jeopardy.”
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