• by Wendy Davis , Staff Writer @wendyndavis, March 5, 2020

The tech industry and digital rights activists are gearing up to fight the controversial EARN IT Act -- a bill proposed Thursday that could give online companies an incentive to weaken tools that protect users' privacy.

The bill, introduced by Sens Lindsey Graham (R-South Carolina) and Richard Blumenthal (D-Connecticut), would carve out a new exception to Section 230 of the Communications Decency Act -- the law that immunizes online companies from civil lawsuits over content posted by users. Specifically, the EARN IT Act would require tech companies to follow a set of “best practices,” in order to avoid civil lawsuits over material that sexually exploits children.

The best practices -- to be determined by a committee appointed by Congress and led by Attorney General William Barr -- would almost certainly include a ban on end-to-end encryption, as well as new obligations to monitor posts by users.

The bill, first floated months ago, is supported by some groups including the National Center for Missing and Exploited Children and the National Center on Sexual Exploitation.

But it has drawn criticism by a wide range of groups, including the Silicon Valley lobbying organization Internet Association and digital rights advocates.

“After the federal government spent years ignoring the law and millions of reports of the most heinous crimes against children, William Barr, Lindsay Graham and Richard Blumenthal are offering a deeply flawed and counterproductive bill in response,” Wyden stated. “This terrible legislation is a Trojan horse to give Attorney General Barr and Donald Trump the power to control online speech and require government access to every aspect of Americans' lives.”

The Center for Democracy & Technology's Emma Llanso says the bill would give government officials “unprecedented powers” to regulate online speech.

“Online service providers would almost certainly err on the side of caution and take down anything -- including a lot of lawful, constitutionally protected speech -- that the Attorney General might not like," Llanso stated Thursday.

John Bergmayer, legal director at Public Knowledge, notes that privacy technologies like encryption offer benefits to many web users.

“These technologies protect users of all kinds, including children, members of our armed services, and diverse vulnerable communities,” Bergmayer states.

Others, including Santa Clara University law professor Eric Goldman, have pointed out that Section 230 already has an exception for federal crimes. In other words, the federal government doesn't need to revise Section 230 in order to prosecute web platforms over material that violates federal laws.

Sen. Ron Wyden (D-Oregon), who authored Section 230, blasted the proposed EARN It Act, which he calls “disastrous.”

“After the federal government spent years ignoring the law and millions of reports of the most heinous crimes against children, William Barr, Lindsay Graham and Richard Blumenthal are offering a deeply flawed and counterproductive bill in response,” Wyden stated. “This terrible legislation is a Trojan horse to give Attorney General Barr and Donald Trump the power to control online speech and require government access to every aspect of Americans' lives.”