America's EARN IT Act attacking Section 230 is back – and once again threatening the internet, critics say

Legislation to punish online services for users' illegal content would damage speech and encryption, it's claimed

The EARN IT Act, a legislative bill intended "to encourage the tech industry to take online child sexual exploitation seriously" has been revived in the US Senate after it died in committee back in 2020.

And advocacy groups have once again decried the bill for threatening free speech and access to encryption, and for imperiling the liability protection that allows online service providers to host third-party content. In other words, the bill's reception has been much the same as it was two years ago.

US Senators Lindsey Graham (R-SC) and Richard Blumenthal (D-CT) on Tuesday reintroduced the bill [PDF] claiming that online service providers are disinterested in keeping child sexual abuse material (CSAM) off their platforms.

"Tech companies have long had ready access to low-cost, or even free tools to combat the scourge of child sexual abuse material but have failed to act," said Blumenthal in a statement. "Millions of these horrifying images go unidentified and unreported by the tech platforms that host them because there are so few consequences when these companies look the other way. That ends with the EARN IT Act."

The EARN IT ACT, which stands for ​​Eliminating Abusive and Rampant Neglect of Interactive Technologies Act, removes the liability protection afforded to internet services under Section 230 of the Communications Decency Act in the context of CSAM.

Section 230 largely protects online service providers from being held responsible for what their users do; removing protection where CSAM is involved would open service providers to costly litigation and liability for failing to police their customers.

The bill also creates a government panel responsible for developing best practices for content policing, though these would not be legally binding obligations.

The bill's backers posit that big tech firms ignore CSAM, though that's clearly not the case. Google, for example, says it made 3.4 million reports to the National Center for Exploited and Missing Children (NCMEC) during the first half of 2021 and disabled more than 129,000 accounts during this period.

Meta (Facebook) says it took action on 20.9 million instances of CSAM in Q3 2021. Social media companies do actually have an incentive to prevent ad customer product pitches from appearing next to child abuse images or the like, and they spend money to do it.

Despite such evidence, the lawmakers supporting the bill contend that exposing companies to legal liability for allowing CSAM on their services will make them even more attentive, a claim critics of the bill dispute.

Censorship looming warn critics

"The EARN IT Act assumes that Internet companies could do more to fight CSAM, but Section 230 reduces their motivation to do so," wrote Eric Goldman, law professor at Santa Clara University, in a blog post back in 2020. "Any such assumption is unquestionably false. Internet services have always treated CSAM as toxic content."

More likely, Goldman argued, what the bill will do, if it becomes law, is either encourage overbroad censorship to reduce the chance of being sued, spur efforts to encrypt everything to prevent awareness of unlawful content, or force companies to shut down to avoid the otherwise unsupportable legal risk.

However, the possibility that the bill will prompt internet providers to censor too broadly for their own protection bodes ill for free speech.

"The EARN IT Act is one of the most poorly conceived and dangerous pieces of Internet legislation I have seen in my entire career, and that’s saying a lot," said Evan Greer, director of Fight the Future, in a statement.

"This bill will make children less safe, not more safe. And in the process, it will trample human rights and online free expression, particularly for trans and queer folks."

Greer expressed frustration that Congress has chosen to waste energy on a misguided proposal while failing to actually address the issues raised by large technology platforms, like the need for a federal data privacy law, for meaningful antitrust enforcement, and for curtailing algorithmic harms like biased AI systems.

The Center for Democracy and Technology argues that the bill, despite language that tries to create a safe harbor by ruling out liability solely on the basis of the use of encryption, would still punish encryption.

"Under the new version of the bill, offering users encrypted services can be considered evidence of an intermediary’s liability for these claims, even if it cannot be considered an 'independent basis' for that liability," the rights group said in a blog post.

"By dramatically expanding the risk of lawsuits intermediaries will face over user-generated content and their use of end-to-end encryption, the bill will cause intermediaries to over-remove even lawful content and disincentivize them from offering encrypted services, to the detriment of all internet users."

The Chamber of Progress, a "center-left tech industry policy coalition," pointed to the 2018 FOSTA-SESTA legislation as an example of the undesirable consequences that have arisen from meddling with Section 230.

"The last time the Senate chipped away at Section 230, the results were disastrous,” said Chamber of Progress CEO Adam Kovacevich, in an emailed statement.

"The EARN It Act goes even farther, giving platforms one of two options: quit moderating content altogether, or enforce invasive content moderation with outsized impacts on LGBTQ people and other marginalized communities. As Democrats, we need to think critically about the harm this legislation could do to groups that have a long history of being excluded and overlooked." ®

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