Earn It Act Gets 'Unanimous Approval' But Experts Warn of Privacy Risks

A Senate proposal designed to pressure tech firms into stricter enforcement of child abuse content was unanimously approved in the Judiciary Committee this week, but has received fierce criticism from digital rights groups.

The Bill—which is called the Eliminating Abusive and Rampant Neglect of Interactive Technologies (Earn It) Act 2020—eased through a consideration stage Thursday with a vote of 22-0 and must now be considered by the full Senate, officials said.

The bipartisan legislation was introduced by Lindsey Graham (R-South Carolina) and Senator Richard Blumenthal (D-Connecticut) in March this year as a way to force the major tech platforms to "take online child sexual exploitation seriously."

It is also being supported by Josh Hawley (R-Missouri) and Ranking Member Dianne Feinstein (D-California), and co-sponsored by six additional senators.

The fine print of the proposal has left privacy advocates alarmed, with a slew of critics claiming it could be used to weaken encryption and threaten internet freedoms.

After approval, Kate Ruane, an American Civil Liberties Union senior legislative counsel, said: "Our online freedoms are now in serious jeopardy," The Guardian reported.

Politicians have pitched the bill as a way to combat the "rapid increase of child sexual abuse material on prominent online platforms," saying it would amend Section 230 of the Communications Decency Act, which currently protects internet publishers from legal consequences if one of their users shares or uploads illegal content.

Under Earn It Act, a 19-member panel including the heads of the Justice Department, Homeland Security and the Federal Trade Commission, would create a set of "best practices" linked to "identifying and reporting online child sexual exploitation."

Failure to comply with the legislation would leave tech firms without the Section 230 protections, potentially them open to the threat of costly lawsuits.

The proposals have gained the support of the National Center for Missing & Exploited Children (NCMEC), Rights4Girls, and the National Center on Sexual Exploitation.

But digital rights and advocacy groups fear the law, if passed in its current form, could result in vast over-reach, causing tech firms to over-censor by default.

The Electronic Frontier Foundation (EFF) blasted the "unelected commission" that would be spearheaded by Attorney General William Barr, who has long been a vocal critic of end-to-end encryption, a protocol that keeps content secure and private.

The group claimed the Act could "end user privacy as we know it" as tech firms that provide encryption could be forced to alter software to allow special access.

It said: "Section 230 is what protects owners of small online forums, websites, and blogs with comment sections, from being punished for the speech of others.

"Without Section 230 protections, platform owners and online moderators will have every incentive to over-censor speech, since they could potentially be sued out of existence based on someone else's statements."

The EFF added: "Proponents of Earn It say that the bill isn't about encryption or privacy. They're cynically using crimes against children as an excuse to change online privacy standards. But it's perfectly clear what the sponsors' priorities are.

"Sen. Lindsay Graham (R-SC), one of Earn It's co-sponsors, has introduced another bill that's a direct attack on encrypted messaging. And Barr has said over and over again that encrypted services should be forced to offer police special access."

The American Civil Liberties Union, also in strong opposition, says the Act will grant "broad authority" to the panel to make practices that could "encourage platforms to undermine strong encryption methods and place our online privacy at risk."

It stated in a letter to senators the Act could "chill vast amounts of protected speech online" by undermining the privacy of communications while forcing the tech firms to "adopt overbroad content censorship and moderation practices."

"Though it purports to address some of society's worst crimes, in reality, the Earn It Act will do far more harm than good," the ACLU continued. "It will jeopardize the privacy of every American, fundamentally alter the freedom of our online communications, disproportionately harm LGBTQ people, sexworkers, and those with marginalized or minority views, and... undermine the very prosecutions it claims to enable."

In its own letter, to Sen. Graham and Sen. Graham, Human Rights Watch said the Act could "limit free expression on the internet, be exploited to target encryption."

Its letter said the approach "forces internet companies to make a choice: manage the online expression of users based on best practices developed behind closed doors by an unelected 19-member commission, or face increased liability."

"As written, the Earn It Act's approach will likely result in the overbroad censorship of protected speech alongside the removal of CSAM, without distinction."

Yesterday, responding to the approval, Blumenthal stood by the Act's design, saying: "There is no reason for these platforms to have blanket immunity, a shield against any accountability that is not enjoyed by any other industry in the same way."

Sen Lindsey Graham
Chairman Sen Lindsey Graham (R-SC) presides during a Senate Judiciary Committee hearing to examine issues involving race and policing practices in the aftermath of the death in Minneapolis police custody of George Floyd and the civil unrest that followed, on Capitol Hill on June 16, 2020 in Washington, DC. Jonathan Ernst-Pool/Getty