The amended EARN IT Act remains a threat to press freedom
Audrey Kim | Summer Research Fellow
July 21, 2020
Senator Lindsey Graham, co-author of the EARN IT Act.
The full Senate is expected to vote on the controversial EARN IT Act in the coming days, after unanimous approval from the Judiciary Committee on July 2. EARN IT would open the door to criminalizing encryption protections and increase censorship online, posing a significant threat to press freedom and whistleblowers.
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EARN IT, which nominally stands for the “Eliminating Abusive and Rampant Neglect of Interactive Technologies” Act, represents yet another attempt at opening government access to online communications at the expense of privacy. Sponsored by Senator Lindsey Graham (R-SC) and a bipartisan group of co-sponsors, the act’s stated goal is to protect children from sexual exploitation and eliminate the distribution of child sexual abuse material (CSAM) online.
However, it aims to achieve this by increasing the potential for government overreach of the Internet instead — potentially placing sweeping restrictions on encryption technology and increasing legal risk for online platforms for user content. It calls for the creation of a National Commission on Online Child Sexual Exploitation Prevention, led by an Attorney General whose office has attempted to remove legal protections for online platforms time and again, to outline “best practices” for addressing CSAM that online platforms must follow. The original bill conditioned liability protections currently afforded by CDA Section 230 on meeting the Committee’s guidelines, meaning that social media companies would have to comply (in other words, “earn it”) or be left open to costly lawsuits for the content that third-party users post.
Before the committee vote, an amendment removed that requirement, but digital platforms and encryption tools are far from safe. The bill no longer dangles Section 230 protection as a carrot for online platforms to comply with arbitrary guidelines, pushing questions of liability to state laws and federal civil claims instead. This means that social media companies remain vulnerable to lawsuits for content posted by their users since they would have to navigate 50+ state legal systems. For example, journalists could be barred from signal boosting their reporting on online platforms if their work centers around issues that state laws may find unsavory. Because of the threat of liability, social media companies would have no choice but to move towards heavy censorship of user content.
The amended EARN IT bill also threatens end-to-end encryption communication tools that journalists use to communicate sensitive information with sources. If passed, encryption tools could face enormous legal costs as they navigate liability under 50+ state legal systems. Signal announced that “it would not be possible for a small nonprofit like Signal to continue to operate within the United States” when EARN IT was introduced in April. The bill proposes that the committee includes members such as the Attorney General William Barr, who has publicly expressed his disdain for encryption technology. This campaign is sure to influence the committee’s guidelines of “best practices.” The end result will mean secure communication channels used by whistleblowers, which are central to the function of public-serving journalism and the press freedom at the heart of FPF’s mission, may be too costly and legally risky to operate.
The Center for Democracy and Technology put it best: “In short, the Manager’s Amendment to the EARN IT Act changes some aspects of the bill, but the rotten core of it remains.”
Protecting children from exploitation is a noble goal but does not excuse all haphazard actions taken in its name, especially when there are better alternatives available. For example, Senator Ron Wyden (D-Oregon) introduced the Invest in Child Safety Act, which would increase funding to hire investigators and therapists to achieve the same result without restricting freedom online as EARN IT would. Free and open discourse on the Internet cannot exist without legal protections for encryption tools and online platforms. If it has regard for the critical function that the press plays in a democracy, Congress must block the EARN IT Act.
You can contact your representative about the EARN IT Act by accessing EFF’s easy-to-use tool. For more information about the EARN IT Act, read Riana Pfefferkorn’s post on the Stanford Center for Internet and Society blog about the amended bill.