Does This Bill Fight Online Child Exploitation or Kill Encryption? Depends on Who You Ask
A new bill intended to fight online child exploitation has garnered bipartisan support in Congress, but the tech industry fears it will end up undermining encryption.
The goal of the EARN IT Act—from Sens. Lindsey Graham (R-South Carolina) and Richard Blumenthal (D-Connecticut)—is to get top internet companies to follow best practices the senators believe will stamp out child sexual exploitation on the platforms. However, the legislation is facing pushback over provisions that would let US Attorney General William Barr determine what those best practices actually are—including if it means adding a backdoor into encrypted messaging systems.
The EARN IT Act proposes overhauling an important legal protection all US internet companies use to shield themselves from lawsuits: Section 230 of the Communications Decency Act. Under Section 230, if a user posts illegal content online, the hosting website isn’t necessarily liable provided it makes a “good faith” effort to pull down the content. However, past investigations have found websites can be slow or ineffective when it comes to removing the most heinous illegal content, online child pornography.
The EARN IT Act proposes changing this whole dynamic by stripping away liability protections. To get them back, internet companies would need to prove that they’re following best practices on stopping online child exploitation, which will be set forth by a national commission.
The heads of the US Justice Department, Department of Homeland Security, and the FTC would all be members of the commission. Sixteen other people appointed by Congress, including representatives from law enforcement, tech experts, and survivors of online sexual exploitation, would also join the panel.
According to a leaked draft of the bill, only 10 members on the commission would need to support a best practice for it to get approved. The same draft also says the US Attorney General, who will lead the commission, can make modifications to the recommendations when they get published.
The EARN IT Act arrives as Barr has been calling for Apple and Facebook to ditch end-to-end encryption. The Justice Department claims the encryption hinders investigations to identify child sex predators and prevents attempts to uncover evidence on criminal suspects. As a result, free speech groups and trade organizations in the tech industry all fear Barr will use the proposed legislation to undermine encryption and enforce new content standards.
“The drafters of this bill obviously want to address some real harms, yet their solutions could radically change the way we communicate online,” said Free Press Senior Policy Counsel Gaurav Laroia in a statement. “The legislation sets up the US government as the arbiter of all communications and conversations that happen on the internet — a terrible idea in any instance.”
The Software Alliance, meanwhile, said it shares Congress’s goal of stamping out online child exploitation, but wants to do so without undermining the security benefits of end-to-end encryption. “As Congress considers this legislation, it’s important to take into account the critical role encryption plays in online safety and as the first line of defense in combatting cybercrime, protecting critical infrastructure, and preserving national security,” the alliance said.
However, the bill’s sponsors are defending the legislation as necessary to help clean up the internet. “For the first time, you will have to earn blanket liability protection when it comes to protecting minors. Our goal is to do this in a balanced way that doesn’t overly inhibit innovation, but forcibly deals with child exploitation,” Sen. Graham said in today’s announcement.
On Twitter, Sen. Blumenthal said the bill simply wants tech companies to abide by “basic standards that protect kids from exploitation.” Their “near complete immunity from legal responsibility is a privilege—they have to earn it,” he writes.
A hearing on the bill is scheduled for March 11. Eight other senators have already backed the bill, but not everyone is on board. “This terrible legislation is a Trojan horse to give Attorney General Barr and Donald Trump the power to control online speech and require government access to every aspect of Americans’ lives,” Sen. Ron Wyden (D-Oregon) said in a statement.
