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Tech companies could be fօrcеd to drop end-to-end encryptіon undeг the EARN ΙT Act.
Taylor Martin/CNEᎢ
Depending on who you ask, the EARN IT Act could either destroy tһe fundamental values of an open internet or protect children from bеing sexually exploited online. The , which requires tech compɑnies to meet safety requiгements for children online before obtaining immunity from lawsuits, had its .
A bipartisan ɡroup of , saying that the would enforce standards to protect children from sexual exploitation online. The announcement came at tһe same time the Justice Department hߋsted a press event to argue that end-to-end protects online ⲣredators.
While few would question the іmportance of ensuring child safety, technology experts warn that the bill is really just the government’s latеst attempt to ᥙproot both free speech and security protections online.
The proposed law һas already been met with widespread criticism from security experts, civil liberties advocates and opposing lawmakers. They see the bill as a and as a way to target Section 230, an important part of the Communications Decency Act of 1996 that рrotects free sρeech by granting tech companies immunity frߋm any liabilities associated with content on thеir platforms.
The Senate Judiciary Committee voted to approve the EARN IT Act for a floor vote on July 2.
Here’s a breakdoᴡn of the pߋliϲy issues surrounding the EARN IT Act, ԝhy lawmakers want it and why so many sеcurity ɑnd experts are аgainst the ⅼegislation.
What is the EARN IT Act?
The was introduced by Sen. Lindsey Graham (Republican of South Carolina) and Sen. Richard Blumenthal (Democrat of Connecticut), along with Sen. Josh Hawley (Republican of Missouri) and Sen. Dianne Feinstein (Democrat of California) on March 5.
The premise of the bill is that technology companies have to earn Section 230 protections rather than being granted immunity by default, as the Communications Decency Act has provided for over two decades.
The lawmakers proposed the bill as a way to protect children from online predators, after prosecutors told senators that tech companies weren’t doing enough to prevent sexual exploitation. The Justice Department has argued for years that end-to-end encryption prevents investigators from gathering evidence that would help police catch online criminals.
Senators Richard Blumenthal (left) and Lindsey Graham are among the co-sponsors who introduced the EARN IT Act.
Getty images / Tom Williams/ CQ Roll Call
At a Senate hearing in December, Graham and Blumenthal , including and , that they would introduce legislation on encryption if they couldn’t find a compromise.
To earn Section 230 protections, as the bill suggests, tech companies would have to meet standards established by a new National Commission on Online Child Sexual Exploitation Prevention. Graham introduced a manager’s amendment on June 30, a day before the bill went up for markups, to change it after backlash against the bill.
Those standards aren’t requirements anymore, but instead voluntary recommendations, according to .
“My goal is not to end encryption. My goal s to begin challenging child sexual exploitation and pornography on the internet by making those who own these platforms do better,” Graham said at a riunione on July 2.
The changed bill would still allow states to sue tech platforms if child sexual abuse material is distributed on their platforms, and still poses a threat to Section 230 protections and encryption, critics said.
If child sexual abuse material is sent through an encrypted messaging platform, like WhatsApp, for example, states will be able to sue them and hold the company responsible for being unable to moderate those messages.
An amendment from Sen. Patrick Leahy looks to protect encryption from state actions, and passed unanimously at Thursday’s vote.
“If the committee wants to change the rules on encryption, we should do that in a separate bill,” Leahy said at the July 2 riunione.
Policy advocates point out that encryption doesn’t need to be directly targeted by the EARN IT Act to be affected by the bill.
Different states have different standards for how a platform is liable for child sexual exploitation material. Some have “reckless” or “knowing” standards, meaning if a platform like Facebook were reckless or knowingly negligent with how it protects against child exploitation, they could be held responsible. There’s concerns that having encryption on their platforms could be considered reckless.
With the risk of being sued by 50 state attorney generals, tech platforms would be discouraged from having encrypted messages that they can’t moderate, experts said.
“In short, the Manager’s Amendment to the EARN IT Act changes some aspects of the bill, but the rotten core of it remains,” the Center for Democracy and Technology . “Threatening intermediaries with vague and expansive liability for user-generated content is not the right way to fight the sexual exploitation of children, and is a surefire way to discourage encryption and censor an incredible amount of constitutionally protected speech.”
The commission drafting the guidelines is made up of the heads of the Justice Department, the Department of Homeland Security and the Federal Trade Commission, as well as members appointed by Congress. No elected officials will serve on the commission.
