• by Wendy Davis  @wendyndavis, February 4, 2022

A controversial bill that would expose web companies to civil lawsuits and state prosecutions for hosting user-generated child sex-abuse material is drawing opposition from Senator Ron Wyden (D-Oregon) as well as watchdogs including the Electronic Frontier Foundation and Open Technology Institute.

Wyden wrote this week on Twitter that the “sadly misguided” EARN IT (Eliminating Abusive and Rampant Neglect of Interactive Technologies) Act "will not protect children, stop the spread of vile child exploitation material or target the monsters that produce it."

“Instead,” he wrote, “the EARN IT Act threatens the privacy and security of law-abiding Americans.”

The EARN IT Act, re-introduced this week by Senators 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 strip tech companies of 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.

Web companies currently are protected from most civil suits over user-generated content by Section 230 of the Communications Decency Act. That law has several exceptions, including one that allows federal prosecutors to charge web companies with violating federal criminal law.

The National Center on Sexual Exploitation supports the bill, but critics say it threatens privacy and cybersecurity by discouraging companies from using encryption.

The EARN IT Act provides that using encryption technology isn't in itself grounds for liability, but also specifically says courts can consider a company's use of encryption as evidence against it.

The upshot, according to the digital rights group Electronic Frontier Foundation, is that prosecutors and private attorneys “would be able to drag an online service provider into court over accusations that their users committed crimes, then use the fact that the service chose to use encryption as evidence against them.”

That organization adds that the bill “would pave the way for a massive new surveillance system, run by private companies, that would roll back some of the most important privacy and security features in technology used by people around the globe.”

New America's Open Technology Institute also weighed in against the bill, stating Friday that it “would incentivize providers to over-censor and suppress online speech, and create encryption backdoors for law enforcement, undermining everyone’s cybersecurity.”