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A Painful Reminder. A Moment for Change

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WASHINGTON — On Thursday, the Senate Judiciary Committee passed an amended EARN IT Act, paving the way for floor debate in the full Senate. Though the bill has changed substantially since its early drafts, Free Press Action continues to raise serious concerns about the legislation.

The original bill would have charged a new congressionally appointed commission within the Department of Justice to develop “best practices” that websites, applications, broadband providers and other online entities could follow to avoid liability for what the bill describes as “online child sexual abuse material” posted on their sites or sent over their services by third parties.

The bill as amended today has removed any legal authority from the DoJ commission, abandoning the premise of “earning” Section 230 protections by following the commission’s recommended practices. The amended bill has lessened, but not eliminated, the threats to free speech and encryption tools by both abandoning the attempt to give the commission’s decisions the force of law, and by adopting an amendment from Sen. Patrick Leahy (D–Vermont) to ensure that deploying cybersecurity tools like encryption does not give rise to additional liability for companies.

Senate Judiciary Committee members have not given up their plans to curtail or even outlaw effective encryption technology. That attempt to end encryption has now moved to the Lawful Access to Encrypted Data Act, which explicitly forces companies to build backdoors into their products to enable government access. That bill will likely be considered by the Judiciary Committee in the coming weeks.

As voted out by the committee, the EARN IT Act now pokes holes in Section 230’s liability shield, opening tech companies up to federal and state civil liability in addition to existing federal criminal liability for transmitting content that these platforms did not create themselves. The bill would amend Section 230 to allow state suits from countless different state laws, possibly recreating at the state level the same concerns that the original EARN IT Act presented.

Free Press Action Senior Policy Counsel Gaurav Laroia made the following statement:

“We recognize and commend the legislation’s sponsors for making significant changes to the bill. The original premise created a commission headed by Attorney General Bill Barr to control all online expression by removing Section 230’s liability shield unless internet platforms complied with the commission's vague pronouncements. That was dangerous, constitutionally suspect and could have had severe consequences for free speech.

“For example, groups disfavored and targeted by the Trump administration, like the LGBTQIA+ community, would have borne the brunt of the Barr commission’s recommendations, perhaps under the guise of age controls for access to online content that would have made it harder or even impermissible for young people to access important educational materials. Conditioning Section 230 liability in this way is dangerous, and we hope this marks the end of that line of legislating.

“As we noted previously, the drafters of this bill obviously want to address real harms from abusive materials, but the amended bill creates an enormous opening for state-level liability. Even as amended today, it invites states to begin passing all sorts of laws under the guise of protecting against abuse, but replicating the problems with the original EARN IT Act’s text.

“At the federal level, a criminal-liability standard requiring that platforms have actual knowledge of abusive materials is a more workable standard for discovering and taking down this offending material. But as the amended EARN IT Act leaves so much discretion to states to create new laws in this area, those state-level liability standards could be wildly inconsistent, and the bill incentivizes revisions to those statutes. Those lower standards in civil law and in the states could lead to the shuttering of all sorts of forums and tools that teenagers and young adults use to connect and communicate because companies are fearful of exposing themselves to an avalanche of state suits.

“Strong encryption is absolutely essential for the privacy and security of everyone’s communications and against abuse by bad actors and government overreach. Despite the encryption protections the Leahy amendment seeks, it cannot anticipate and guard against all the actions state legislatures could take to restrict and outlaw effective encryption technologies or the measures that skittish general counsels at these companies could take to avoid costly suits.

“The amended EARN IT Act may be less of a threat on its face, but simply exporting the more direct threats to speech and encryption from the federal government to the states does not satisfy those concerns. The bill could replicate the SESTA/FOSTA debacle across 50 different states with countless new laws, and countless harms.”

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