The EARN IT Act is back, and not much has changed

Here’s what you need to know.

Tom Williams via Getty Images

The EARN IT Act is a piece of legislation, first introduced in 2020 by Republican Senator Lindsay Graham and Democratic Senator Richard Blumenthal. Its sponsors, of which there are many, say that the bill will tackle the proliferation of Child Sexual Abuse Material (CSAM) posted online. Its critics say that the bill uses an emotive subject as cover to force tech companies to further erode online privacy protections and curtail freedom of speech. Much like FOSTA/SESTA before it, the bill’s key target is further weakening the legal protections of Section 230 Communications Decency Act, better known as the “26 words that created the internet.”

Originally tabled March 5th, 2020, the bill received plenty of bipartisan support in the Senate and was passed to committee soon after. It did not, however, receive a full vote at the time, likely due to the fact that COVID-19 massively disrupted the legislative process. It has now been reintroduced in largely the same form as before, and is being discussed by the Senate Judiciary Committee on Thursday, February 3rd, 2022.

Broadly speaking, the bill seeks to launch a new national commission, led by a committee of senior law enforcement officials. This body would develop a series of so-called best practices to prevent online platforms distributing CSAM. In the older version of the bill, any platform that did not adopt these best practices would subsequently lose their immunity provided to them by Section 230. In the updated version, there's no connection between best practice and the loss of immunity, it's just gone. The updated law also places a lot of power to regulate internet providers directly in the hands of state legislatures.

As Engadget explained at the start of 2020, Section 230 gives internet infrastructure providers broad legal immunity from the actions of their users. If you write something that is defamatory on your Facebook page, it’ll be you, not Mark Zuckerberg, who has to answer for it. It’s this protection from liability that has allowed a wide variety of internet businesses to flourish.

Now imagine what would happen if every online platform was on the hook for everything its users wrote. The ability to write pretty much anything online would disappear within weeks, with only the wealthiest platforms (Facebook) able to survive. Everything that wasn’t instantly shut down would be subject to even more overzealous moderation than what’s currently in use.

Think about it this way: Imagine if Yelp was itself legally liable to every restaurant which received a bad review on its service. It would either have to shut down, purge every bad review in its database, rendering it useless, or get sued into oblivion in very short order.

One of the bill’s more troubling moves is to outsource the key decision-making power to a politically-chosen body. The committee would involve the Attorney General, Secretary of Homeland Security and appointees with a background in law enforcement. There is an understandable concern that such a group would be unrepresentative in terms of the broader debate around this issue, and unaccountable for the decisions that it reaches.

This lack of accountability and the fact that the bill repeats many of the same mistakes that marked the passage of FOSTA/SESTA, advocacy groups are worried. The American Civil Liberties Union (ACLU), for instance, believe that the law’s broad scope could be used to erode basic online freedoms at the whims of politicians. At the time the bill was initially introduced, the Attorney General was William Barr, a prominent critic of encryption. Barr said, many times, that tech companies “can” and “must” put back doors into their products. The Electronic Frontier Foundation (EFF) said that such a move would enable “law enforcement agencies, from the FBI down to the local police, to scan every message sent online.” The fact that the new text explicitly nods that the use of encryption could be a reason to lose liability protection makes this even more troubling. And even if that clause is watered-down, the broad-brush power handed to the committee overall means it just takes a change in leadership and encryption is gone for good.

Part of the broader context around Section 230 is the myth, intentionally propagated by some lawmakers and journalists, that online platforms are censoring conservative voices. Time and again, prominent figures on the right decry outfits like Facebook when it takes down content that violates its terms of service. They say that it’s partisan censorship, despite the fact that Facebook has in fact bent over backwards to accommodate and keep prominent right-wing figures on its site. The attacks on S230 are to be seen as both a political cudgel to ensure major platforms continue to carve out exceptions for prominent Republicans, and as a way of censoring huge swathes of internet speech.

No discussion of Section 230 can exist without talking about the harms created by the passing of FOSTA/SESTA. That bill had a similar aim of weakening the protections of Section 230, passed under the aegis of preventing sex trafficking. Once signed into law in 2018, a number of websites dealing with sex, sex work and sexual education were forced offline. Democrats in 2019 were sufficiently concerned by the fallout from the bill that they unsuccessfully attempted to pass a bill that would study the impact of FOSTA/SESTA on vulnerable individuals.

Freedom Network, a body that works to prevent trafficking, and provide support to its victims, spoke out against EARN IT at the end of 2020. It, along with a number of other groups, backed a letter (.PDF) saying that the bill was flawed and wouldn’t succeed in its supposed aims. It said that the bill would repeat the mistakes of FOSTA/SESTA, explaining that “instead of narrowly targeting sex trafficking which used digital platforms, the law de-platformed and erased the existence of many, including sex workers, harm reduction workers and sex educators.” It added that the bill could cause disproportionate harm to LGBTQ communities who would be starved of vital educational material and access to a broader community.

Human Rights Watch, meanwhile, wrote to Graham and Dianne Feinstein in June 2020 to lodge its own opposition to the bill. It said that “the EARN IT Act not only jeopardizes privacy and threatens the right to free expression but also fails to effectively protect children from online exploitation.”

Since the bill has reemerged, these same criticisms have been leveled against it, given that little has changed about its construction. The Center for Democracy and Technology said on Tuesday that its changes “in some cases, makes things worse.” It remains to be seen, however, if these criticisms will get through to the politicians who will begin debating the bill in earnest later today.