A controversial bill to protect children online has just been introduced in the Senate. Here’s what you need to know

By Brian Fung, CNN

A controversial bill targeting how tech platforms and websites handle child sexual abuse material cleared a major hurdle on Thursday as a Senate panel voted to approve the legislation despite vocal objections from civil rights groups who say the proposal as written will backfire on all internet users.

The legislation, known as the EARN IT Act of 2022, has reignited debate over legal protections for tech platforms under federal law. It comes as U.S. lawmakers increasingly push to amend Section 230 of the Communications Act of 1934, which tech platforms have cited for years to dodge lawsuits over user-created content that they host on their websites.

By narrowing the scope of Section 230, the latest bill aims to create greater legal exposure for companies that don’t do enough to remove child sexual exploitation material (CSAM). Tech platforms can already be criminally prosecuted at the federal level for knowingly facilitating the spread of child pornography, but the legislation goes further, allowing states to also bring civil and criminal lawsuits about it.

The bill also seeks to create a commission, led by federal law enforcement, to publish voluntary best practices for tech platforms on how to combat child pornography. It’s a carrot and stick approach that effectively tells websites how they can, as the name of the bill suggests, earn their liability protections.

“Our goal is to say to social media companies, ‘Get involved and stop this shit, and if you don’t take responsibility for what’s on your platform, then Section 230 won’t be there for you.’ you,'” Sen. Lindsey Graham, a co-sponsor of the bill, said during Thursday’s committee meeting.

Senator Richard Blumenthal, another co-author, said that while drafting the bill, the Senate Judiciary Committee heard of many examples of platforms, including Twitter and Reddit, failing to act to remove the child pornography despite having been informed of it. (Twitter declined to comment; a Reddit spokesperson said the company relies on human reviewers and automated tools to detect CSAM and removes any content it finds, along with users who post it. of the platform.) Blumenthal also said the bill has support. by 250 law enforcement, child protection and government agencies.

But critics of the legislation say the standard for what is considered “sufficient” enforcement is ambiguous in the bill and opens the door to vast excess by federal and state governments; Internet censorship; and the weakening of encryption technology that is essential to protecting everything from consumer email accounts to sensitive trade and military secrets.

The purpose of the bill

The EARN IT Act is part of a broader bipartisan campaign to curb tech platforms, joining a slew of bills related to antitrust policy, content moderation or other issues.

On Thursday, the EARN IT Act left the Senate Judiciary Committee with unanimous support; its next stop is the Senate floor, though several senators on the panel have expressed reservations about some provisions.

Supporters of the bill say it aims to give victims of digital child pornography – who may have had sexually explicit videos of themselves as minors shared without consent on social media – “a day in court” .

Blumenthal said the legislation gives victims “access to our justice system so they can create an incentive for these companies to do the right thing.”

He acknowledged that “there is some controversy” surrounding the proposal, but urged his fellow senators to “imagine, for the moment, the most unspeakable and despicable violation of your physical being…. repeated, thousands of times on the Internet, for millions of strangers to watch with sadistic pleasure – following you throughout your life.

For many opponents of the bill, however, the EARN IT Act is a reminder of how Congress botched its latest attempt to use Section 230 as a cudgel against sex crimes.

A story of unintended consequences

In 2018, President Donald Trump signed a bill known as SESTA/FOSTA, which created new ways under Section 230 for websites to be prosecuted if their users created advertisements for online prostitution. While the law was intended to prevent sex trafficking, numerous reports have highlighted its unintended consequences – driving sex work further underground and making it more dangerous, according to sex workers themselves. A Government Accountability Office report from 2021 found that since its passage the law has only been invoked once, raising questions about its actual usefulness.

A similar effect could occur with the EARN IT Act, critics say. A letter written on Tuesday by dozens of groups, including the American Civil Liberties Union, Human Rights Campaign and the Wikimedia Foundation (the organization behind Wikipedia), said the bill could actually lead to a lack of accountability for people broadcasting CSAM online.

If a state law requires websites “to monitor or screen their users’ content so that it can be turned over to the government for criminal prosecution, the provider becomes a government agent and any CSAM it finds could become the product of an unconstitutional warrantless search,” the letter said.

This would render the evidence inadmissible in court, they added, defeating the purpose of the bill and leaving the abusers free.

Senator Mike Lee appeared to share some of the same hesitations with the bill in its current form.

“I’m a bit concerned that current language is inadvertently forcing interactive computing services to do for government what government itself is prohibited from doing,” he said, “which engages in indefinite policing – accessing and then recording private and protected data – without the protections of the law.

How this bill would change law enforcement

Federal law already requires companies to report CSAM when they find it. In 2020, the National Center for Missing and Exploited Children said it received 20 million such reports from Facebook, over half a million from Google, and over 96,000 from Microsoft.

Under current law, however, platforms are not obligated to go after CSAMs – their obligations only begin when they become aware of them.

This is where the general provisions of the EARN IT Act on state authority come into play. The bill gives state attorneys general, for the first time, the power to bring civil or criminal lawsuits against websites and technology platforms “regarding the advertising, promotion, presentation, distribution, or solicitation of child pornography”.

The legislation leaves it up to each state to set the legal standard by which websites can be judged, an issue that Lee said should cause concern.

“If a state, say New York, enacted a law stating that any interactive computer service…does not remove CSAM within one hour of its publication is liable for damages of up to $1 million, a church with such a site Interactive Web could be strictly liable under this New York law,” Lee said — adding that small businesses could be crushed under a “patchwork” of state laws.

States could also seek to use other legal standards, such as recklessness or negligence, further lowering the bar for litigation, Lee said.

Blumenthal replied that it is a feature of the bill, not a bug.

“As a former state attorney general,” he said, “I welcome states using this flexibility and would be reluctant to force them to adopt different standards.”

Why it’s controversial

The EARN IT Act has also been the subject of controversy in its implications for encryption, the technology used by email providers, messaging apps, banks, cloud storage companies and the government itself to protect sensitive data.

The issue has created some strange bedfellows, as digital rights groups that have opposed Big Tech have aligned themselves with tech industry groups to warn that the EARN IT Act could have unintended consequences. for digital security.

Law enforcement groups have long argued that encryption makes it easier for criminals to conceal their illegal activities and that tech platforms have a responsibility to cooperate with police to allow access to this data. Tech groups have strongly opposed these calls, saying that a decision to give even selective access to encrypted communications would allow criminals and foreign adversaries to figure out how to break all encryption, because all encryption works on the same principles, whatever the context.

In response to concerns that the EARN IT Act could allow government officials to prohibit encryption, the bill’s co-sponsors added a provision prohibiting the use of encryption as the sole justification for CSAM lawsuits.

But that will not be enough, civil society groups wrote in their letter on Tuesday. A platform’s support for encryption could easily be cited in a guilty-by-association lawsuit, with its mere existence serving as suggestive evidence of a website’s wrongdoing. And that, the groups said, “will be a strong deterrent to deploying encrypted services in the first place.”

Beyond the potential return to consumers, businesses and national security, civil rights advocates say a cooling in encryption is likely to endanger those the bill is meant to help by eliminating safe ways for victims. and marginalized groups to confide in trusted allies.

But Blumenthal dismissed concerns on Thursday as a “gigantic red herring”.

“Big Tech and their armies of lobbyists and allies have sought to turn this into an encryption issue,” he said. “It’s not about encryption.”

And after?

With the bill headed for the Senate and still subject to revisions, there is a long way to go before the EARN IT Act becomes law.

But its passage by the Senate Judiciary Committee on Thursday shows how the bill continues to enjoy bipartisan support, even despite widespread criticism.

Opponents of the bill have sought to mount a massive campaign to defeat it, with activist group Fight for the Future saying on Thursday it had mustered 600,000 supporters to contact lawmakers on the issue.

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