WASHINGTON D.C.  Today, Reps. Sylvia Garcia (D-TX) and Ann Wagner (R-MO) introduced a House companion version of the “Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2019” — the “EARN IT Act of 2019,” which was introduced in the Senate by Sens. Lindsey Graham (R-SC) and Richard Blumenthal (D-CT) and voted out of the Senate Commerce Committee in July. The two bills are identical except that the House version narrows protections for encryption as an amendment to the Senate version by Sen. Patrick Leahy (D-VT). EARN IT aims to force operators websites, messaging services and other tools for sharing images and videos to do more to combat the spread of child sexual abuse material (CSAM). TechFreedom led a diverse coalition in a letter that opposes this misguided legislation and explains how the bill would backfire and violate the Constitution:

First, rather than stopping the scourges of child sexual exploitation (CSE) and child sexual abuse material (CSAM), the bill would risk having criminal prosecutions of those who sexually exploit children invalidated on Fourth Amendment grounds. Second, despite an amendment intended to protect encryption, the bill may still compromise the security of encrypted communications tools used by most Americans. Finally, the bill will interfere with the First Amendment rights of adults to use Internet services anonymously and to communicate with minors online, including their relatives. 

“EARN IT would actually make it harder to stop the spread of CSAM,” said Berin Szóka, Senior Fellow at TechFreedom. “The bill could lead courts to require a warrant before tech companies can turn over CSAM evidence to law enforcement — just as courts have ruled NCMEC, the nominally private clearinghouse for handling CSAM, is a government actor. If so, those convicted of exploiting children based on evidence collected without a warrant could walk free.”

“In 1998, Congress tried directly mandating age verification, only to see the courts strike down that law as infringing on adults’ rights to anonymous speech,” continued Szóka, “Now, EARN IT would do the same thing indirectly: instead of an explicit mandate, the bill would create such broad liability whenever websites make it possible for adults to communicate with minors that operators may have no choice but to require all users to prove their age. This will be especially true for encrypted services like WhatsApp and  iMessage. Once users’ ages have been established, these services will have a strong incentive to segment them by age. In both respects, EARN IT would interfere with the First Amendment rights of both adults and minors.” 

“The Senate Judiciary Committee made the bill worse with its manager’s amendment by creating even more sweeping liability,” warned Szóka. “Two provisions authorize state laws that create civil and criminal liability for CSAM but without specifying a knowledge standard. Thus, the current version could make it even easier to sue websites for offering strong encryption, for not age-verifying users, or for allowing adults to communicate with minors (even in the most innocent settings). But even the third provision, limited to cases of ‘actual knowledge,’ is unworkable on its own: it will simply encourage websites not to monitor communications lest they gain knowledge and, ironically, encrypt user communications so they can’t read them.”

 “Garcia has simply doubled down on the Senate’s mistakes,” concluded Szóka. “We appreciated Sen. Leahy’s amendment, but it won’t stop tech companies prosecuted for deciding not to compromise the security of their apps. But even the limited protection offered by the Leahy amendment is undermined by the House version’s only substantive change: while offering encryption could not be an ‘independent basis for liability,’ it could be considered with other evidence. If this becomes law, this risk will discourage companies from offering encryption to protect user communications. That’s not surprising, because undermining encryption has always been a key purpose of this legislation.”

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Read our coalition letter here.

Our past work on free speech and Section 230 includes:

  • Our press release on the previous draft of The EARN IT Act (March 5, 2020)
  • Our post DOJ Section 230 Workshop blog posts on Techdirt: Part I, Part II, Part III
  • Our op-ed in The Washington Examiner: “Lindsey Graham’s new bill would end the internet as we know it”
  • Our op-ed in Morning Consult: “Bill Barr Declares War on the Internet as We Know It”
  • Our blogpost on techdirt breaking down the Graham’s bill language; Twitter thread on the Graham bill
  • Coalition letter by 27 civil society organizations and 53 academics a set of seven principles to guide conversation about amending Section 230 of the Communications Decency Act of 1996
  • Our statement on the passage of SESTA
  • Our statement on the takedown of Backpage and its implications for Section 230 and recent sex trafficking legislation
  • Tech Policy Podcast #251: SESTA/FOSTA Hurts Victims It Aims to Protect

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