Yesterday, TechFreedom sent a letter to the Senate Judiciary Committee raising concerns about the Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2023 (EARN IT Act). As it did when introduced in each of the past two sessions of Congress, the EARN IT Act undermines the privacy, security, and safety of law-abiding users while making prosecution of child sexual abuse crimes more difficult.

“As reintroduced, EARN IT dramatically increases the risk of liability for any service that offers end-to-end encryption,” said Ari Cohn, TechFreedom’s Free Speech Counsel. “The bill pretends to allow companies to offer encrypted services but in reality ensures that offering those services will be considered as evidence in cases brought under state laws. No rational business will offer end-to-end encryption if it can be evidence that they were reckless or negligent because they were unable to detect or block offending communications.”

“If lawmakers are truly concerned that foreign adversaries and rogue government agencies are snooping on private communications, undermining encryption is the last thing they should do,” Cohn continued. Last month, Elon Musk sparked outrage by alleging that the federal government previously had access to Twitter users’ private direct messages. Access, Musk added, that was possible only because DMs are not encrypted. And buried under concerns about TikTok is a report that a state-sponsored Chinese hacking group is actively targeting companies—including social media and telecommunications companies—to collect intelligence. “Coercing services to abandon encryption only makes us more vulnerable to government overreach and attacks from hostile foreign adversaries,” Cohn noted.

“EARN IT shoots itself in the other foot, too: it will undermine, not assist, prosecutions for CSE and CSAM offenses,” Cohn continued. EARN IT supporters have admitted that their goal is to force companies to do more to combat CSAM, including by monitoring user communications and searching for offending content—facilitated by the abandonment of strong encryption. But that coercion likely transforms companies’ efforts into state action subject to the Fourth Amendment. Because private companies cannot obtain a warrant, evidence obtained from such activities would be inadmissible in court—allowing predators to go free. “There simply is no upside to EARN IT,” Cohn concluded. “For three years now we have explained the harms of this legislation; it’s time Congress listened.”

In our letter sent prior to EARN IT’s markup last year, we addressed these and other concerns in more detail, suggesting revisions that may ameliorate them to some degree.


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