Commentary

Senate Advances Bill That Could Undermine Encryption, Hinder Online Speech

A divisive bill that critics say would harm cybersecurity efforts as well as people's ability to speak online was unanimously advanced Thursday by the Senate Judiciary Committee.

The bill officially takes aim at child pornography. But digital rights groups say the measure would pave the way for states to pass laws that could have a devastating effect on a wide range of legitimate speech.

The EARN IT (Eliminating Abusive and Rampant Neglect of Interactive Technologies Act) Act, introduced by Senators Lindsey Graham (R-South Carolina) and Richard Blumenthal (D-Connecticut), would revise Section 230 of the Communications Decency Act by stripping tech companies of protection from civil lawsuits over user-generated posts containing child sexual abuse material.

EARN IT would also subject tech companies to prosecutions for violations of state criminal and civil laws regarding child sex abuse material, as well as violations of federal civil laws. Section 230 of the Communications Decency Act currently protects sites against most civil lawsuits, and most state prosecutions.

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The National Center on Sexual Exploitation supports the measure, arguing that it “restores privacy” to victims of child pornography.

Dawn Hawkins, CEO of the organization, says tech companies currently lack an incentive to prevent child sex abuse material from appearing on their platforms.

But digital rights advocates and other critics say the bill could subject web companies to liability for hosting material they weren't aware of.

For instance, critics say, a state could make it a crime for a company to negligently host child sex abuse material -- which would subject companies to liability even if they didn't know the material was on their platforms.

The upshot is that web companies could decide to prevent users from posting anything, rather than risk criminal and civil sanctions.

The Center for Democracy & Technology and other digital rights groups pointed that possibility out in a letter sent to lawmakers this week.

The groups write that the bill allows states “to impose any liability standard they please on platforms, including holding platforms liable for [material] they did not actually know was present on their services.”

The letter continues: “By opening providers up to significantly expanded liability, the bill would make it far riskier for platforms to host user-generated content. Facing potential liability under dozens of laws regulating conduct at different standards, providers may simply choose to forgo hosting user content.”

Opponents also say the measure would harm cybersecurity by discouraging companies from using encryption.

While EARN IT states that a company's use of encryption isn't in itself grounds for liability, the bill also specifically allows judges to consider a company's use of encryption as evidence against it.

The Electronic Frontier Foundation told lawmakers this week that those provisions undermine encryption.

“Making communications less secure in the name of protecting children isn’t worth it,” the group said in a letter to leaders of the Senate Judiciary Committee. “Vulnerable people, including victims of domestic violence, and including children, rely on encrypted communications to establish safe relationships with trusted adults.”

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