The EARN IT Act will be introduced to Congress for the third time

The controversial EARN IT Act, first introduced in 2020, is returning to Congress after failing twice to land on the president’s desk. The Eliminating Abusive and Rampant Neglect of Interactive Technologies Act, (EARN IT) Act is intended to minimize the proliferation of Child Sexual Abuse Material (CSAM) throughout the web, but detractors say it goes too far and risks further eroding online privacy protections.

Here's how it would work, according to the language of the bill's reintroduction last year. Upon passing, EARN IT would create a national commission composed of politically-appointed law enforcement specialists. This body would be tasked with making a list of best practices to ostensibly curb the digital distribution of CSAM. If online service providers do not abide by these best practices, they would potentially lose blanket immunity under Section 230 of the Communications Decency Act, opening them up to all kinds of legal hurdles — including civil lawsuits and criminal charges.

Detractors say EARN IT places a whole lot of power to regulate the internet in the hands of the commission the bill would create as well as state legislatures. Additionally, language in last year's bill suggests that these guidelines would likely extend to encrypted information, so if an encrypted transmission runs afoul of any guidelines, the platform is on the hook. This will force providers to monitor encrypted communications, which goes against the whole point of encryption in the first place. Additionally, end-to-end encryption is designed so that not even the platform can read the contents. In other words, providers might not be able to offer those protections.

“This was a dangerous bill two years ago, and because it’s doubled down on its anti-encryption stance, it’s even more dangerous now,” The Center for Internet and Society at Stanford Law School wrote in a blog post last year, a stance also mirrored by the Center for Democracy and Technology. The American Civil Liberties Union, pushing back on a prior version of the bill, said that it "threatens our online speech and privacy rights in ways that will disproportionately harm LGBTQ people, sex workers and others who use the internet to privately communicate and share information and resources."

The Rape, Abuse & Incest National Network (RAINN) has come out in defense of the bill, saying that it will “incentivize technology companies to proactively search for and remove” CSAM materials. “Tech companies have the technology to detect, remove, and stop the distribution of child sexual abuse material. However, there is no incentive to do so because they are subject to no consequences for their inaction,” wrote Erin Earp, RAINN’s interim vice president for public policy.

The bipartisan Senate bills have consistently been introduced by Republican Senator Lindsay Graham and Democrat Senator Richard Blumenthal, and their companion bills in the House likewise have been sponsored by Republican Representative Ann Wagner and Democrat Representative Sylvia Garcia. The full text of H.R.2732 is not publicly available yet, so it's unclear if anything has changed since last year's attempt, though when reintroduced last year it was more of the same. (We've reached out to the offices of Reps. Wagner and Garcia for a copy of the bill's text.) A member of Senator Graham's office confirmed to Engadget that the companion bill will be introduced within the next week. It also remains to be seen if and when this will come up for a vote. Both prior versions of EARN IT died in committee before ever coming to a vote.