• by Wendy Davis  @wendyndavis, February 1, 2022

Lawmakers in the Senate have resurrected a controversial bill that would weaken tech companies' legal protections by creating new exceptions to Section 230 of the Communications Decency Act -- the law that immunizes online companies from civil lawsuits over third-party content.

The EARN IT (Eliminating Abusive and Rampant Neglect of Interactive Technologies Act) Act, re-introduced this week by Sens Lindsey Graham (R-South Carolina) and Richard Blumenthal (D-Connecticut), would eliminate tech companies' protections from civil lawsuits over user-generated posts containing child sexual abuse material. The proposed law would also do away with tech companies' immunity from prosecution over violations of state criminal or civil laws regarding child sex abuse material, and from prosecutions over violations of federal civil laws covering child sex abuse material. (Section 230 already has an exemption that allows federal law enforcement officials to bring cases against tech companies for hosting material that violates federal criminal laws.)

An earlier version of the bill, proposed in March of 2020, would have required tech companies to follow a set of “best practices” in order to avoid civil lawsuits over child sex abuse material. Those best practices would have been determined by a committee largely appointed by Congress.

The current iteration of the bill still calls for a commission to create best practices, but doesn't require companies to follow them.

The National Center on Sexual Exploitation is praising the measure, arguing it “restores privacy to victims of child sexual abuse material.”

But others, including the group Fight for the Future, which fought to scuttle the prior version of the bill, argues that the current proposal is “misguided and reckless.”

Among other criticisms, the organization says portions of the bill could discourage companies from using encryption technology.

While the bill provides that using encryption isn't in itself grounds for liability, the measure would allow courts to consider a company's use of encryption technology as evidence against it.

The digital rights watchdog Center for Democracy & Technology adds that the bill “would threaten encryption and the role it plays in protecting cybersecurity for everyone.”

“By dramatically expanding the risk of lawsuits intermediaries will face over user-generated content and their use of end-to-end encryption, the bill will cause intermediaries to over-remove even lawful content and disincentivize them from offering encrypted services, to the detriment of all internet users,” the group stated Tuesday.

The Senate Judiciary Committee is scheduled to take up the bill on Thursday.