Undead EARN IT Act poses newly urgent threat to press freedom

Parker Higgins

Advocacy Director

Sen. Richard Blumenthal, along with Sen. Lindsey Graham, has re-introduced the dangerous EARN IT Act.

CC BY, Senate Democrats

After public backlash led to a major defeat in 2020, lawmakers are now attempting to rush the anti-privacy legislation through the Senate.

The EARN IT Act, a fundamentally anti-encryption bill targeting the cornerstone of Internet law, is on the fast track for a Senate vote after an earlier version collapsed amid widespread backlash from pro-privacy organizations. Two years ago we described the bill as a "threat to press freedom," an assessment that applies just as accurately to the current legislation.

EFF has published a tool to allow U.S. residents to contact their senators and urge them to oppose this dangerous bill. Fight for the Future has also rolled out an easy way to contact lawmakers about the bill.

The reintroduced version is in some ways worse than the draft that attracted such vehement pushback two years ago, but could be rushed through to a vote before meaningful opposition can reassemble. Expert analysis suggests it would be worse than useless at its stated goals: Though nominally aimed at reducing the spread of child sexual abuse material online, it could exacerbate that problem.

At the same time, it would wreak havoc on critical components of online infrastructure, such as strong encryption and established legal safe harbors.

Bills that complicate the deployment of strong encryption are bad for journalists, who must rely on broad privacy protections to communicate with sources and to conduct investigative research. It's no guarantee that even specialized privacy-focused platforms would be able to overcome the hurdles put in place by a law like EARN IT: two years ago, the non-profit behind Signal messenger said it would not be able to operate in the United States in such a legal environment.

The bill, if passed, would constrain existing legal safe harbors, incentivizing platforms to overzealously restrict the kinds of content that users can post and share. This kind of chilling effect followed an earlier law, SESTA/FOSTA, on which EARN IT is modeled. In the wake of SESTA/FOSTA's passage in 2018, multiple platforms did immediately shut down rather than face the legal jeopardy of continuing to operate.

A government study on the topic and a comprehensive law review article have confirmed the suspicion that the environment is now worse for investigators to find sex trafficking offenders and victims. Although the role of journalistic investigations and law enforcement investigations are very different, dynamics that restrict one can certainly impact the other.

For these reasons and more, in just the week since its reintroduction EARN IT has received vociferous opposition across the political spectrum from ACLU to Americans for Prosperity. Freedom of the Press Foundation strongly opposes the proposal, and we will be following as its backers attempt to rush it through the process.

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