WASHINGTON D.C.  Today, the Senate Judiciary Committee held a markup on the “Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2019” — the “EARN IT Act of 2019.” Sponsored by Sens. Lindsey Graham (R-SC) and Richard Blumenthal (D-CT), the bill 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 explains how the bill would backfire and violate the constitution in a detailed legal analysis, summarized in a short letter to lawmakers. The committee quickly approved a manager’s amendment to rewrite the bill, addressing some but not all of our concerns, as we explain in a second letter to lawmakers.

“As introduced, the EARN IT Act would actually make it harder to stop the spread of CSAM, while also limiting the First Amendment rights of adults to access lawful content and use secure services for private communications,” said Berin Szóka, Senior Fellow at TechFreedom. “The bill raises a host of constitutional problems. Most notably, 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. The good news is that the Committee seems to recognize that the bill is unworkable. The bad news is that the manager’s amendment doesn’t solve all these problems, and creates some new ones.”

“The manager’s amendment creates liability that could be just even more sweeping than the existing draft set for markup,” warned Szóka. “Two provisions authorize state laws that create civil and criminal liability for CSAM but without specifying a knowledge standard. Thus, the revised bill 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 to avoid gaining knowledge and, ironically, encrypt user communications so they can’t read them.”“The stakes are too high, and this issue is too complicated, for lawmakers to try to completely rewrite this bill at markup,” concluded Szóka. “The Committee’s work simply isn’t anywhere near done. Simply sending it to the Senate floor without hearings would mean failing to vet legislation, both for its real-world effects and its constitutionality. It would harm, rather than help, children while also burdening the lawful speech of adults.”

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We can be reached for comment at media@techfreedom.org. See more of our work on free speech and Section 230 on our website, including:

  • 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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