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EARN IT Act

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EARN IT Act
Great Seal of the United States
Other short titlesEliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2023
Long titleTo establish a National Commission on Online Child Sexual Exploitation Prevention, and for other purposes.
Announced inthe 118th United States Congress
Sponsored byHouse: Ann Wagner
Senate: Lindsey Graham
Number of co-sponsorsHouse: 29
Senate: 24
Codification
Acts affected
U.S.C. sections affectedSection 230 (47 U.S.C. § 230)
Agencies affected
Legislative history

The EARN IT Act (S. 3538) is a proposed legislation first introduced in 2020 in the United States Congress. It aims to amend Section 230 of the Communications Act of 1934, which allows operators of websites to remove user-posted content that they deem inappropriate, and provides them with immunity from civil lawsuits related to such posting. Section 230 is the only surviving portion of the Communications Decency Act, passed in 1996.

A number of events in the 2010s led lawmakers to question the legal freedom that website operators have, and among other legislation options, the EARN IT Act was proposed to alter Section 230's protections and put more responsibility on website operators. While it initially failed to pass in 2020, it was reintroduced in 2022 and for a third time in 2023.

Background

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Main article: Section 230

Section 230 was introduced as an amendment with the 1996 Communications Decency Act (CDA) that sought to amend the Communications Act of 1934. Section 230 was introduced by Senators Christopher Cox and Ron Wyden after seeing news of a pair of lawsuits, Cubby, Inc. v. CompuServe Inc. and Stratton Oakmont, Inc. v. Prodigy Services Co., which ruled very differently for two interactive computer services on the matter of their liability for user content solely because Prodigy moderated its content and CompuServe did not.[1][2] The intent of Section 230 was to provide the same metaphor that ISPs were simply distributors of materials like booksellers, rather than publishers, and thus should not be responsible for the content they distribute for fear of creating a chilling effect on free speech.[3]

Section 230 contained two primary clauses that apply to any "interactive computer service" such as a website, an ISP, or similar content provider.

  • Section 230(c)(1) states simply that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."
  • Section 230(c)(2) is considered the "Good Samaritan clause," that as long as any service provider or user finds any content "obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable", constitutionally protected or otherwise, they may take actions in good faith to restrict said content.

The CDA passed and was signed into law, but it was immediately challenged in the court system under Reno v. American Civil Liberties Union. The case concluded in 1997, ruling that all of the CDA excluding Section 230 was unconstitutional.[4]

Section 230 itself was challenged in other cases, but case law established its constitutionality, primarily with Zeran v. America Online, Inc. in 1997, in which the Fourth Circuit stated that Congress had recognized the threat of tort-based challenges to the growing Internet and properly provided the liability protections that ISPs needed to sustain operations.[5] Since then, Section 230 has generally survived all subsequent legal challenges, and the ability for the Internet to grow at a great pace has been attributed to it. Congress has passed one law that has impacted Section 230, the FOSTA-SESTA Act in 2018 that specifically removed liability protection from services that did not take actions against users knowingly involved in sex exploitation of children or sex trafficking.[6]

Events leading to EARN IT

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The 2016 United States presidential election drew concerns about possible Russian interference in the elections. In the wake of various allegations, the U.S. government, then with a Republican leadership, started questioning the role of the Big Tech companies—Google, Apple, Microsoft, and Facebook—as well as other social media sites like Twitter in moderating content. They faced increased pressure to address misinformation, hate, and violent content on their sites.[7] Social media sites took steps to moderate content[8] and, under their Section 230 allowance, blocked accounts they had deemed to violate their terms of service, most of which had come out of alt- and far-right groups. This led Republican lawmakers to claim that these sites were using Section 230 immunity to create a bias.[9][10][11] Senator Ted Cruz argued that section 230 should only apply to providers that are politically "neutral", suggesting that a provider "should be considered to be a liable 'publisher or speaker' of user content if they pick and choose what gets published or spoke."[12] Senator Josh Hawley alleged that Section 230 immunity was a "sweetheart deal between big tech and big government".[13][14]

Legislation

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The bill, as amended,[15] would create a National Commission On Online Child Sexual Exploitation Prevention, a 19-member panel. The Attorney General, the Secretary of the Department of Homeland Security, and the Chairman of the Federal Communications Commission (or their representatives) would serve as three of the members, while the remaining 16 are selected by the majority and minority leaders of both the House and Senate from experts in investigating child exploitation, assisting those that have been exploited as children, consumer protections, and computer security, including representatives from computer services. The Commission once formed will develop and continually update a Best Practices document aimed to provide guidance to service providers to help them to prevent child exploitation and aid in investigation of such crimes.

The bill also crafts two additional changes to Section 230(c)(2)'s liability, allows any state to bring a lawsuit to service providers if they fail to deal with child sexual abuse material on their service.

Finally, the bill replaces nearly all instances of the wording "child pornography" in existing laws with "child sexual abuse material".

Legislative history

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Senator Lindsey Graham introduced the EARN Act in the Senate on March 5, 2020, with co-sponsors Richard Blumenthal, Kevin Cramer, Dianne Feinstein, Josh Hawley, Doug Jones, Robert Casey, Sheldon Whitehouse, Richard Durbin and Joni Ernst; Senators John Kennedy, Ted Cruz, Chuck Grassley, and Rob Portman co-sponsored the bill later.[16] The bill was reviewed in the Committee on the Judiciary, and passed out of that committee on July 20, 2020 with an amended version to be voted by the Senate.[17] The bill was introduced to the House on October 2, 2020.[18]

The bill was reintroduced by Lindsey Graham and Richard Blumenthal in February 2022[19] and passed unanimously by the Senate Judiciary Committee.[20]

The Act was reintroduced by Lindsey Graham in April 2023 to the 118th Congress.[21][22]

Congress Short title Bill number(s) Date introduced Sponsor(s) # of cosponsors Latest status
116th Congress EARN IT Act of 2020 H.R.8454 September 30, 2020 Sylvia Garcia

(D-TX)

5 Died in Committee.
S.3398 March 5, 2020 Lindsey Graham(R-SC) 16 Died in Committee.
117th Congress EARN IT Act of 2022 H.R.6544 February 1, 2022 Sylvia Garcia

(D-TX)

15 Died in Committee.
S.3538 January 31, 2022 Lindsey Graham(R-SC) 23 Died in Committee.
118th Congress EARN IT Act of 2023 H.R. 2732 April 19, 2023 Ann Wagner

(R-MO)

29 Referred to committees of jurisdiction.
S.1207 April 19, 2023 Lindsey Graham (R-SC) 24 Referred to committees of jurisdiction.

Reception

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Non-governmental organizations

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The National Center for Missing and Exploited Children endorsed the EARN IT Act on March 5, 2020, writing that "it provides ESPs [electronic service providers] with a roadmap to adopt specific, consistent best practices developed by industry and subject matter experts to prevent, reduce, and respond to the online sexual exploitation of children".[23] On the same day, the National Center on Sexual Exploitation, an anti-pornography organization, praised the act as "the best piece of accountability in the tech space since the passage of FOSTA-SESTA in 2018, which makes it illegal for interactive computer services to knowingly facilitate sex trafficking".[24]

A coalition of 25 organizations, including FreedomWorks and the Wikimedia Foundation, published an open letter on March 6, 2020, expressing "strong opposition" to the EARN IT Act, citing perceived conflicts with the First and Fourth Amendments.[25][26] The EARN IT Act was also criticized by the Electronic Frontier Foundation as "a direct threat to constitutional protections for free speech and expression" on January 31,[27][28] by Human Rights Watch as a bill that "falsely suggests that we must choose between protecting children and protecting other fundamental rights, including privacy and free expression" on June 1,[29][30] and by the American Civil Liberties Union, which stated that "the EARN IT Act will undermine the privacy of every single American, stifle our ability to communicate freely online, and harm LGBTQ people, sex workers, and protesters" on July 1.[31][32] Opponents of the EARN IT Act argued that some of the "best practices" would most likely include a backdoor for law enforcement into any encryption used on the site, in addition to the dismantling of Section 230's approach, based on commentary made by members of the federal agencies that would be placed on this commission. For example, former Attorney General Barr has extensively argued that the use of end-to-end encryption by online services can obstruct investigations by law enforcement, especially those involving child exploitation and has pushed for a governmental backdoor into encryption services. The Senators behind EARN IT have stated that there is no intent to bring any such encryption backdoors with this legislation;[33] according to The Washington Post, Richard Blumenthal said that "lawmakers wouldn't offer a blanket exemption to using encryption as evidence, arguing companies might use it as a 'get-out-of-jail-free card.'"[34][35]

In February 2022, 60 privacy and human rights groups sent a letter to lawmakers expressing opposition to the EARN IT Act.[36]

Kir Nuthi, former Public Affairs Manager for NetChoice, explained in Slate that compelling all internet services to proactively monitor for child sexual abuse material could make it inadmissible as evidence under the Fourth Amendment due to the Exclusionary rule, as it was not collected voluntarily.[37]

Members of Congress

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In a statement following the Senate Judiciary Committee's unanimous passage of the bill, Graham praised the bipartisanship against the "scourge of child sexual abuse material and the exploitation of children on the internet."[38] Further, he asserted that social media companies and internet service providers would be able to defend themselves in a civil suit as long as they employ "the best business practices."[38][non-primary source needed]

Wyden was critical of the bill, calling it "a transparent and deeply cynical effort by a few well-connected corporations and the Trump administration to use child sexual abuse to their political advantage, the impact to free speech and the security and privacy of every single American be damned."[16][39] Graham stated that the goal of the bill was "to do this in a balanced way that doesn't overly inhibit innovation, but forcibly deals with child exploitation."[40] As an implicit response to EARN IT, Wyden along with House Representative Anna G. Eshoo proposed a new bill, the Invest in Child Safety Act, in May 2020 that would give US$5 billion to the Department of Justice to give additional manpower and tools to enable them to address child exploitation directly rather than to rely on technology companies to rein in the problem.[41]

Technical implications

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While the language of the proposed bill does not directly mention encryption, security experts anticipate that it will be addressed in committee recommendations should the bill pass. These recommendations may include requiring any online service that provides end-to-end encryption to begin including backdoors that would allow government or law enforcement to read private communications.[42] Many companies with strong security use end-to-end encryption on data transmitted between the company and the consumer. This encryption also means, by definition, that no-one, including governments, is able to scan this data for child sexual abuse material and other prohibited content before it reaches its destination. Some experts worry that companies may eliminate encryption on their online platforms because they fear civil and criminal liability if they are unable to prevent such content from being posted on their platforms.[43] These experts argue that the proposed bill could discourage the use of encryption, resulting in less secure personal data that may be more easily accessible to hackers.[44] Other experts have gone a step further, arguing that any barriers to the use of encryption will result in a more dangerous and less free internet.[45][46]

References

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  1. ^ "Cubby, Inc. v. CompuServe Inc., 776 F. Supp. 135 (S.D.N.Y. 1991)". Justia Law. Archived from the original on May 2, 2023. Retrieved May 2, 2023.
  2. ^ "Stratton Oakmont v. Prodigy Servs. Co. | Case Brief for Law School | LexisNexis". Community. Archived from the original on May 2, 2023. Retrieved May 2, 2023.
  3. ^ Reynolds, Matt (March 24, 2019). "The strange story of Section 230, the obscure law that created our flawed, broken internet". Wired UK. Archived from the original on January 5, 2021. Retrieved August 12, 2019.
  4. ^ Reno v. ACLU, 521 844, 885 (United States Supreme Court 1997).
  5. ^ Shroud, Matt (August 19, 2014). "These six lawsuits shaped the internet". The Verge. Archived from the original on February 8, 2021. Retrieved July 2, 2019.
  6. ^ Dias, Elizabeth (April 11, 2018). "Trump Signs Bill Amid Momentum to Crack Down on Trafficking". New York Times. Archived from the original on April 12, 2018. Retrieved April 11, 2018.
  7. ^ Zakrzewski, Cat (January 14, 2021). "The Technology 202: It's not just social media: Capitol violence spurs changes at Airbnb, GoFundMe and more". Washington Post. Archived from the original on January 26, 2021. Retrieved April 30, 2021.
  8. ^ Zhou, Li; Scola, Nancy; Gold, Ashley (November 1, 2017). "Senators to Facebook, Google, Twitter: Wake up to Russian threat". Politico. Archived from the original on January 14, 2021. Retrieved March 12, 2019.
  9. ^ Harmon, Elliot (April 12, 2018). "No, Section 230 Does Not Require Platforms to Be "Neutral"". Electronic Frontier Foundation. Archived from the original on February 17, 2021. Retrieved July 17, 2019.
  10. ^ Robertson, Adi (June 21, 2019). "Why the internet's most important law exists and how people are still getting it wrong". The Verge. Archived from the original on February 26, 2021. Retrieved July 17, 2019.
  11. ^ Lecher, Colin (June 20, 2019). "Both parties are mad about a proposal for federal anti-bias certification". The Verge. Archived from the original on February 24, 2021. Retrieved July 17, 2019.
  12. ^ Masnick, Mike (April 13, 2018). "Ted Cruz Demands A Return Of The Fairness Doctrine, Which He Has Mocked In The Past, Due To Misunderstanding CDA 230". Techdirt. Archived from the original on December 7, 2020. Retrieved July 17, 2019.
  13. ^ Vas, Nicole (March 19, 2019). "GOP steps up attack over tech bias claims". The Hill. Archived from the original on February 25, 2021. Retrieved July 17, 2019.
  14. ^ Eggerton, John. "Sen. Hawley: Big Tech's Sec. 230 Sweetheart Deal Must End". Multichannel. Archived from the original on August 21, 2020. Retrieved July 17, 2019.
  15. ^ Senate S.3538 text Archived April 22, 2022, at the Wayback Machine, Text of Senate version of EARN IT 2022
  16. ^ a b Robertson, Adi (March 5, 2020). "Congress proposes anti-child abuse rules to punish web platforms — and raises fears about encryption". The Verge. Archived from the original on January 11, 2021. Retrieved March 5, 2020.
  17. ^ Fisher, Christine (July 2, 2020). "EARN IT Act amendments transfer the fight over Section 230 to the states". Engadget. Archived from the original on January 26, 2021. Retrieved September 16, 2020.
  18. ^ Mullin, Joe (October 2, 2020). "Urgent: EARN IT Act Introduced in House of Representatives". EFF. Archived from the original on February 23, 2021. Retrieved October 2, 2020.
  19. ^ Robertson, Adi (February 1, 2022). "The EARN IT Act is back in Congress". The Verge. Archived from the original on February 1, 2022. Retrieved February 1, 2022.
  20. ^ McKinnon, John D. (February 10, 2022). "Websites Could Be Liable for Child-Sex-Abuse Content Under Bill Passed by Senate Panel". The Wall Street Journal. Archived from the original on February 10, 2022. Retrieved February 10, 2022.
  21. ^ "S.1207 - 118th Congress (2023-2024): EARN IT Act of 2023 | Congress.gov | Library of Congress". Congress.gov. April 30, 2023. Archived from the original on April 30, 2023. Retrieved April 30, 2023.
  22. ^ Bonk, Lawrence (April 20, 2023). "The EARN IT Act will be introduced to Congress for the third time". Engadget. Archived from the original on April 20, 2023. Retrieved April 20, 2023.
  23. ^ Clark, John F. (March 5, 2020). "EARN IT Act 2020". National Center for Missing & Exploited Children. Archived from the original on January 23, 2021. Retrieved October 6, 2020.
  24. ^ "STATEMENT - National Center on Sexual Exploitation Supports EARN IT Act". National Center on Sexual Exploitation. March 5, 2020. Archived from the original on March 6, 2021. Retrieved October 6, 2020.
  25. ^ Gross, Grant (March 13, 2020). "Child exploitation bill earns strong opposition from encryption advocates". Washington Examiner. Archived from the original on October 8, 2020. Retrieved October 6, 2020.
  26. ^ "Coalition letter opposing EARN IT 3-6-20" (PDF). March 6, 2020. Archived (PDF) from the original on November 24, 2020. Retrieved October 6, 2020.
  27. ^ "Internet freedom activists: Congress must reject hotly contested EARN IT Act". The Daily Dot. March 6, 2020. Archived from the original on January 15, 2021. Retrieved October 6, 2020.
  28. ^ Harmon, Elliot (January 31, 2020). "Congress Must Stop the Graham-Blumenthal Anti-Security Bill". Electronic Frontier Foundation. Archived from the original on February 25, 2021. Retrieved October 6, 2020.
  29. ^ Kurnick, Chelsea (September 15, 2020). "Censorship Disguised". East Bay Express. Archived from the original on January 26, 2021. Retrieved October 6, 2020.
  30. ^ "US: Senate Should Reject EARN IT Act". Human Rights Watch. June 1, 2020. Archived from the original on November 16, 2020. Retrieved October 6, 2020.
  31. ^ Fisher, Christine (July 2, 2020). "EARN IT Act amendments transfer the fight over Section 230 to the states". Engadget. Archived from the original on January 26, 2021. Retrieved October 6, 2020.
  32. ^ Newman, Ronald; Ruane, Kate; Guliani, Neema Singh; Thompson, Ian (July 1, 2020). "ACLU Letter of Opposition to EARN IT Act Manager's Amendment". American Civil Liberties Union. Archived from the original on October 31, 2020. Retrieved October 6, 2020.
  33. ^ Feiner, Lauren (March 11, 2020). "Senators dispute industry claims that a bill targeting tech's legal shield would prohibit encryption". CNBC. Archived from the original on January 3, 2021. Retrieved April 2, 2020.
  34. ^ Zakrzewski, Cat (February 10, 2022). "A bill aiming to protect children online reignites a battle over privacy and free speech". The Washington Post. ISSN 0190-8286. Archived from the original on February 19, 2022. Retrieved February 16, 2022.
  35. ^ Wille, Matt (February 13, 2022). "EARN IT Act lawmaker finally admits the bill is targeting encryption". Input. Archived from the original on February 16, 2022. Retrieved February 16, 2022.
  36. ^ McKinnon, John D. (February 10, 2022). "Websites Could Be Liable for Child-Sex-Abuse Content Under Bill Passed by Senate Panel". The Wall Street Journal. ISSN 0099-9660. Archived from the original on February 11, 2022. Retrieved February 13, 2022.
  37. ^ Nuthi, Kir (February 11, 2022). "The EARN IT Act Would Give Criminal Defendants a Get-Out-of-Jail-Free Card". Slate Magazine. Archived from the original on February 14, 2022. Retrieved February 14, 2022.
  38. ^ a b "Chairman Graham Applauds Senate Judiciary Committee for Unanimously Approving the EARN IT Act | United States Senate Committee on the Judiciary". www.judiciary.senate.gov. July 2, 2020. Archived from the original on October 20, 2020. Retrieved October 20, 2020.
  39. ^ Romm, Tony (March 3, 2020). "Congress, Justice Department take aim at tech, hoping to halt spread of child sexual exploitation online". The Washington Post. Archived from the original on January 14, 2021. Retrieved March 3, 2020.
  40. ^ "Graham, Blumenthal, Hawley, Feinstein Introduce EARN IT Act to Encourage Tech Industry to Take Online Child Sexual Exploitation Seriously" (Press release). United States Senate Committee on the Judiciary. March 5, 2020. Archived from the original on January 17, 2021. Retrieved March 10, 2020.
  41. ^ Keller, Michael (May 5, 2020). "A $5 Billion Proposal to Fight Online Child Sexual Abuse". The New York Times. Archived from the original on February 5, 2021. Retrieved May 28, 2020.
  42. ^ "Is Congress ending end-to-end encryption with the EARN IT Act 2022?". Decriminalize Sex Work. Archived from the original on April 14, 2023. Retrieved April 14, 2023.
  43. ^ Nuthi, Kir (November 14, 2022). "The Effect of International Proposals for Monitoring Obligations on End-to-End Encryption" (PDF). Center for Data Innovation. Archived (PDF) from the original on January 19, 2023. Retrieved February 2, 2023.
  44. ^ Newman, Lily Hay. "The EARN IT Act Is a Sneak Attack on Encryption". Wired. ISSN 1059-1028. Archived from the original on May 14, 2022. Retrieved April 11, 2022.
  45. ^ "Banning Strong Encryption Does Not Mean Catching Criminals. It Only Makes You Less Safe from Them". cyberlaw.stanford.edu. Archived from the original on April 9, 2022. Retrieved April 11, 2022.
  46. ^ Reiman, Phillip (January 1, 1996). "Cryptography and the First Amendment: The Right to be Unheard, 14 J. Marshall J. Computer & Info. L. 325 (1996)". UIC John Marshall Journal of Information Technology & Privacy Law. 14 (2). ISSN 1078-4128. Archived from the original on January 20, 2022. Retrieved April 11, 2022.
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