WASHINGTON — The U.S. Senate’s Committee on the Judiciary voted unanimously this morning to bring the EARN IT Act to the floor of the Senate, including an amendment that explicitly separated the issue of encryption from the current scope of the legislation.
The bill, which purportedly has as its goal to “protect victims and survivors of child sexual exploitation,” is in fact a broad overhaul of Section 230 protections — known by online rights advocates as the First Amendment of the internet — to strip platforms of immunity for third-party uploaded content.
The EARN IT Act was introduced by Senators Lindsey Graham (R-S.C.) and Richard Blumenthal (D-Conn.) and co-sponsored by Senators Cramer, Feinstein, Hawley, Jones, Casey, Whitehouse, Durbin and Ernst. During today’s hearing, Senator Ted Cruz asked to be added as a co-sponsor.
The hearing included statements by several senators praising the bill and denouncing child sexual abuse. It also included praise for Senator Patrick Leahy’s (D-Vt.) amendment separating the issue of encryption, which had concerned some senators, from the scope of the current bill.
A mildly dissenting viewpoint was raised by Senator Mike Lee (R-Utah), who expressed concern about the current language allowing for “a patchwork quilt of inconsistent state laws at odds with each other” to establish different rules regarding liability outside of Section 230 protections, which in turn “might allow for the most aggressive states to set the standards,” effectively ending 230 protections altogether.
During the hearing, Senator John Kennedy (R-La.) mused somewhat unrelatedly about removing platforms from Section 230 protections if their business model is built around “pushing our hot buttons” through “algorithms.”
An End to 'Absolute Liability Protection'
The hearing began with Graham taking ownership of his co-authorship of EARN IT. “This topic means a lot to all of us,” he said, adding that while “social media sites in many ways enrich all our lives,” it is also “a place where child predators go.”
Calling online platforms, “a fertile hunting ground [for] child sexual predators,” Graham read a testimonial from a victim of child pornography, before resolutely declaring “we are gonna act.”
Graham praised some efforts by “social media sites out there who are child-proofing their sites against sexual predators” but chided the entire tech industry as a whole because “nobody is rising to the occasion to the level I expect.”
The South Carolina Republican then took aim at Section 230 as a whole, blaming it for offering “absolute liability protection” to tech companies.
“Other than a sovereign nation,” Graham said, “I don’t know many instance in the private sector where you can do whatever you want and not get sued.”
He said the EARN IT Act’s goal was to “encourage the best business practices available to be employed when it comes to child predators and child pornography.”
“If they use the best business practices, they’re immune from liability,” Graham added, before describing how the bill set up a commission to be led by Attorney General William Barr to advise on those “best practices.”
“If they make their best efforts to comply,” Graham explained, the tech companies then “EARN” the 230 protection.
“My goal is to encourage people in this industry to do better and they will never do better when they have a deal nobody else has,” Graham added.
Graham also supported the Leahy amendment separating the issue of encryption from the scope of EARN IT. “My law is not to outlaw encryption,” he said. “The debate about encryption will be a debate for another day.”
However, Graham also went on the record about his dislike for the idea of encryption. If law enforcement or intelligence operation obtain a lawful warrant, he added, there has to be a way for them to access encrypted data.
Platforms to Self-Police
Senator Blumenthal, the Democratic co-sponsor of Graham’s bill, concurred with the South Carolina senator that “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.”
Section 230, Blumenthal said, “was appropriate perhaps in this breadth and magnitude at some point in the internet’s history,” but it should be “no longer, and we are now moving forward with a narrowly crafted and tailored approach.”
He described EARN IT as “not a meat-axe Executive Order that endangers free speech,” but as being “targeted to help the victims and survivors of this absolutely hideous and insidious torture, rape, exploitation that haunts these survivors for decades, for their whole lifetimes after it initially appears — that’s the nature of the internet.”
Blumenthal also said the goal of EARN IT was to provide “incentives for the tech companies to police their platforms,” especially “platforms that knowingly enable this distribution of filth and misery.”
“Those incentives for policing enable us to force companies to take reasonable steps to protect children and survivors,” Blumenthal added, explaining that companies would be forced to “remove, report and detect” alleged “child pornography” content.
California Senator Dianne Feinstein spoke next, quoting some shockingly large numbers from unclear press statistics about the volume of “child pornography on the internet,” before criticizing Section 230 in general and describing it as “a privilege, not a constitutional right.”
Citing that a lot of the Big Tech companies “are in my backyard,” Feinstein chided them for “not having done enough.”
“It’s time to do something about it,” she concluded.
Senator Marsha Blackburn (R-Tenn.) said that though “Section 230 was important in the infancy days of the virtual space,” it is now “ripe for reform and that is what we are doing with EARN IT.”
Blackburn highlighted EARN IT’s requirement for tech companies to keep images for a period of 180 days, as opposed to 90 days, which would supposedly allow law enforcement and litigants to hold them accountable.
A Confusing Patchwork Quilt of State Laws
Utah’s Senator Mike Lee (R) described child pornography as a “vile, pernicious evil,” but he was the sole lawmaker to voice serious “constitutional concerns” about EARN IT.
Lee said he would be voting for it, but reserving the right to “fine-tune some of the provisions” before it reached the Senate floor.
The Utah senator was particularly concerned about how EARN IT’s language, as opposed to SESTA/FOSTA, did not clearly delineate the standards of Section 230 protections.
The broad language of this bill, Lee argued, “allows every individual state to define standards of liability” potentially creating “a patchwork quilt of inconsistent state laws at odds with each other.”
Lee — unexpectedly echoing the warnings of digital rights, sex worker rights and First Amendment activists — suggested the current version of EARN IT “might allow for the most aggressive states to set the standards” of liability, thus “ending 230 protections entirely.”
He also referred to the current language as “a backdoor to ending encryption.”
Claiming federal prerogative over the issue, Lee explained that like waterways and airwaves, the internet is “inherently an interstate issue” and “Congress should set the standards for the state laws.”
Punishing the Algorithm
An unexpected, somehow unrelated contribution to the conversation was offered by Senator John Kennedy (R-La.), who expressed his “enthusiastic” support for the bill.
Kennedy parsed two separate issues. First, he said, “we all support the free exchange of ideas” via social media platforms, but, second, “we all agree that poison is being spread on the internet.”
The problem, Kennedy stated, is that “we can’t agree what’s poison!”
And, he added, “I don’t want government, any government, to define poison.”
This was the prelude to a description, which managed to be both folksy and dystopian, of the current digital situation
“Many of our platforms know everything about us,” Kennedy continued. “They probably know our DNA,” and certainly “they know our hot buttons.”
What followed was an exchange between two Southern gentlemen, Kennedy and Graham, about the Tennessee senator’s modest proposal about punishing platforms that use “engagement optimization” algorithms as part of their business model:
Kennedy: You have Section 230 protection unless you decide to take our hot buttons and draft algorithms that push those hot buttons in order for us to keep coming back and staying longer and get all lubed up. In other words, you have Section 230 protection unless your business model includes engagement optimization. If you’re going to use our hot buttons as the basis for your algorithms to really keep us from seeing other points of view you don’t have section 230 protection
Graham: Fascinating
Kennedy: Something to think about…
Graham: I’m sure they’re thinking about it in California as you’re talking…
Unanimous Votes
After some remarks from Senator Chris Coons (D-Del.), Senator Ted Cruz (R-Texas) explained his support for EARN IT, asking to be added as a co-sponsor.
“Everyone on this committee has agreed with the horror of child sexual abuse and child sexual pornography that continues that abuse,” Cruz said.
Cruz also took broad shots at Section 230 in general, admitting that he wanted to target them over his main concern, “the ongoing problem of Big Tech censorship."
“This bill ought to be a warning sign to Big Tech that there is a strong, if not overwhelming, bipartisan concern with Big Tech, and that section 230 in particular will not serve as an unbreakable shield for all time to immunize Big Tech from any and all conduct they might engage in, and I think that is a positive message.”
“Couldn’t agree more,” Graham interjected.
Senator Leahy, author of the widely praised amendment separating encryption from the scope of EARN IT, spoke last, mentioning the “epidemic of child sexual assault material online.”
The tech community, Leahy said, “can do more to assist law enforcement.”
Leahy admitted being of a “different generation” which “could have never imagined” the scope of the internet child pornography situation as described during earlier hearings.
“There’s a lot to like about this legislation,” Leahy declared, but warned about “potential unintended consequences” concerning encryption.
“My goal is not to end encryption,” Graham repeated before calling votes to adopt Leahy’s amendment and to send EARN IT to the floor.
A satisfied Graham called the hearing “a very small first step of a long journey to protect children,” and added that “more will be coming.”