Senate Waters Down EARN IT At The Last Minute; Gives Civil Liberties Groups No Time To Point Out The Many Remaining Problems

from the this-is-still-a-bad-bill dept

As expected, the EARN IT Act is set to be marked up this week, and today (a day before the markup) Senators Graham and Blumenthal announced a “manager’s amendment” that basically rewrites the entire bill. It has some resemblance to the original bill, in that this bill will also create a giant “national commission on online child sexual exploitation prevention” to “develop recommended best practices” that various websites can use to “prevent, reduce, and respond to the online sexual exploitation of children,” but then has removed the whole “earn it” part of the “EARN IT” Act in that there seems to be no legal consequences for any site not following these “best practices” (yet). In the original bill, not following the best practices would lose sites their Section 230 protections. Now… not following them is just… not following them. The Commission just gets to shout into the wind.

Of course, we’ve seen mission creep on things like this before, where “best practices” later get encoded into law, so there remain significant concerns about how this all plays out in the long run, even if they’ve removed some of the bite from this version.

Instead, the major “change” with this version of EARN IT, is that it basically replicates FOSTA in creating a specific “carve out” for child sexual abuse material (CSAM, or the artist formerly known as “child porn”). It’s almost an exact replica of FOSTA, except instead of “sex trafficking and prostitution” they say the same thing about 230 not impacting laws regarding CSAM. This is… weird? And pointless? It’s not like there is some long list of cases regarding CSAM where Section 230 got in the way. There are no sites anyone can point to as “hiding behind Section 230” in order to encourage such content. This is all… performative. And, if anything, we’re already seeing people realize that FOSTA did nothing to stop sex trafficking, but did have massive unintended consequences.

That said, there are still massive problems with this bill, and that includes significant constitutional concerns. First off, it remains unclear why the government needs to set up this commission. The companies have spent years working with various stakeholders to build out a set of voluntary best practices that have been implemented and have been effective in finding and stopping a huge amount of CSAM. Of course, there remains a lot more out there, and users get ever sneakier in trying to produce and share such content — but a big part of the problem seems to be that the government is so focused on blaming tech platforms for CSAM that they do little to nothing to stop the people who are actually creating and sharing the material. That’s why Senator Wyden tried to call law enforcement’s bluff over all of this by putting out a competing bill that basically pushes law enforcement to do its job, which it has mostly been ignoring.

On the encryption front: much of the early concern was that this commission (with Attorney General Bill Barr’s hand heavily leaning on the scales) would say that offering end-to-end encryption was not a “best practice” and thus could lead to sites that offered such communication tools losing 230 protections for other parts of their site. This version of EARN IT removes that specific concern… but it’s still a threat to encryption, though in a roundabout way. Specifically, in that FOSTA-like carve out, the bill would allow states to enforce federal criminal laws regarding CSAM, and would allow states to set their own laws for what standard counts as the standard necessary to show that a site “knowingly” aided in the “advertisement, promotion, presentation, distribution or solicitation” of CSAM.

And… you could certainly see some states move (perhaps with a nudge from Bill Barr or some other law enforcement) to say that offering end-to-end encryption trips the knowledge standard on something like “distribution.” It’s roundabout, but it remains a threat to encryption.

Then there are the constitutional concerns. A bunch of people had raised significant 4th Amendment concerns in that if the government was determining the standards for fighting CSAM, that would turn the platforms into “state actors” for the purpose of fighting CSAM — meaning that 4th Amendment standards would apply to what the companies themselves could do to hunt down and stop those passing around CSAM. That would make it significantly harder to actually track down the stuff. With the rewritten bill, this again is not as clear, and there remain concerns about the interaction with state law. Under this law, a site can be held liable for CSAM if it was “reckless” and there are reasons to believe that state laws might suggest that it’s reckless not to do monitoring for CSAM — which could put us right back into that state actor 4th Amendment issue.

These are not all of the problems with the bill, but frankly, the new version is just… weird? It’s like they had that original “earn” 230 idea worked out, and were convinced that couldn’t actually work, but were too wedded to the general idea to try to craft a law that actually works. So they just kinda chucked it all and said “recreate FOSTA” despite that not making any sense.

Oh, and they spring this on everybody the day before they mark it up, giving most experts almost no time to review and analyze. This is not how good lawmaking is done. But what do you expect these days?

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Comments on “Senate Waters Down EARN IT At The Last Minute; Gives Civil Liberties Groups No Time To Point Out The Many Remaining Problems”

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Harry Gush says:

I do not know if some of you are aware

The USMCA Trump trade bill went into effect yesterday. My hedge fund owns thousands of shares of Twitter and Facebook and I spoke to South Carolina Senator Graham and told him we would sue if the Earn it act become law. He laughed at me until I quoted the USMCA and threatened talk to the social media companies about filing An investor dispute if you did not change some of this Earn it act bill. Do not know if he changed it on account of me but I was not aware of this until a female employee who reads boing boing and tech dirt let me know about it during a lunch. The operator got in touch quick with Graham considering I am a contributor to his campaign with money but apparently he changed the bill so that is good. Thanks Techdirt for letting me know. I will fight a little more to get this bill right or thrown out.

Anonymous Coward says:


I think you’ve hit the nail on this one. The word to describe this revision is “weird” and “half-baked.” In one way, it is an improvement over the original, mainly because it no longer fucks over two things (mainly section 230). But on the other hand, EARN IT still have issues like potential abuse of power, cracking encryption, and security and constitutional problems yet to address.

Just because it’s an improvement, doesn’t mean that EARN IT is no longer terrible. It’s STILL incredibly flawed.

Anonymous Coward says:

Re: Better...?

I don’t think anyone has any illusions it’s better but it’s weird and half-baked. Like they took out everything and as the article said, put in the FOSTA language.

What’s weird is on the 230 front it already exempts federal crimes from what’s covered.

The cynic in me is saying this is part of a larger plan likely in conjunction with the other bill Graham introduced that attacks encryption directly.

This comment has been deemed insightful by the community.
That One Guy (profile) says:

Kill it with fire

Specifically, in that FOSTA-like carve out, the bill would allow states to enforce federal criminal laws regarding CSAM, and would allow states to set their own laws for what standard counts as the standard necessary to show that a site "knowingly" aided in the "advertisement, promotion, presentation, distribution or solicitation" of CSAM.

So instead of one terrible federal law sites would be faced with fifty potential laws, and to play it safe they would have to follow the most restrictive, making it a moot point if other states have better standards.

If anything that change just made it worse.

It was a terrible bill before, it’s still a terrible bill, and it still deserves the same fate, to be killed off before it can cause some real damage.

Anonymous Coward says:


So let me get this straight. This Manager’s Amendment strips pretty much all of what made EARN IT into what it is and has become in essence FOSTA 2.0.

It still establishes a commission to recommend "best practices" but without any legal teeth for not following them all while allowing states to sue companies under state law over something that already wasn’t covered under 230 IN ADDITION to allowing each state to decide the standard for a company being "reckless" in regards to CSAM which makes it likely they will opt for either the most restrictive practices so as to avoid liability or not moderate at all.

All while the specter of those "best practices" being later codified into law looms. Serving as a "menu" of sorts for legislators who want to score easy victories and how they’re "Doing Something".

This bill while terrible seems to go out of it’s way to be a legal quagmire all while the core problems that this bill originally had still remain unfixed and instead of dealing with one terrible federal law, it spawns 50 mini EARN ITs.

Code Monkey (profile) says:

The last line....

..Oh, and they spring this on everybody the day before they mark it up, giving most experts almost no time to review and analyze. This is not how good lawmaking is done….

When did the constitution change, and mandate that anyone review and analyze bills in Congress?? Or that experts of any sort are to be afforded such niceties?

Isn’t that the whole reason we have representative government?

(troll food: I’m not saying our form of representative gov’t is working as well as we want it to, but, there again, that’s why we have elections….)

Cody says:

This is wierd

So we basically have a new fosta? But it’s actually redundant since CSAM was excluded in the first place for Section 230??? The only concerning area is opening up state lawsuits but it looks like several senators want to fix that. Also this thing is probably DOA in the House Judiciary, the vice chair is adamantly against it, and several members were co sponsors to a bill that was questioning fosta/sesta on its effectiveness and unintended consequences. With this being basically another Fosta/Sesta, I can see where this is going….

Anonymous Coward says:

let’s be honest, if any law can be enacted that hurts the people and/or gives extra powers to law enforcement, even in a round about way, it will be done! not one of those in Congress gives a flyin toss about the people! they are all only interested in turning the USA into a worse police State than it already is, while making bigger bank balances for themselves on route!!

bobob says:

Saying that civil liberties groups didn’t have time to point out "remaining problems" just excuses the ignorance of those who decided to support the bill after it was watered down. That just gives cover to fence straddlers who don’t want to take a position. Anyone who opposed it to begin with should have opposed it, period.

Anonymous Coward says:

Re: Re:

But they have. Most Civil Liberties groups have opposed EARN IT at every step from when the draft of it first leaked to when it was officially introduced and have pointed out the numerous problems with it not least being the constitutional problems.

What happened was this Manager’s Amendment came out the DAY BEFORE the markup blindsiding everyone and not giving these groups a chance to look over the bill to see if it fixed the structural deficiencies from the original version.

Also, they’re still against it since it still threatens free speech and encryption albeit in a roundabout way and instead of one terrible federal law it’s more of a "Death By A Thousand Cuts" type of thing since each states has different standards for what’s considered reckless and leaves the door open for them to make their own laws on the matter.

Anonymous Coward says:

"CSAM", a term pushed by the same folks that pushed FOSTA

Mike, stop pushing the term "child sex abuse material". This terminology was coined and pushed by ECPAT, an international NGO that presents itself as an anti child porn and anti sex trafficking group but is actually just a front group for christain fundamentalists to push their sanctimonius bible-thumping bullshit. Specifically, the exact document the term "child sex abuse material" originates from is the Luxembourg Guidelines, a document whose production ECPAT specifically facilitated and which explicitly states the intent behind this term is to muddy the language so as to associate actual CP with harmless materials like loli/shota hentai and strictly literary works.

ECPAT also played a major role in pushing for SESTA/FOSTA. They have a strong connection to the team behind the documentary "I Am Jane Doe", which is basically Section 230’s "Reefer Madness", and even hosted a congressional panel the day after the film was screened to select congresscritters.

Ohio Senator Rob Portman even personally thanked ECPAT saying they were "a great partner in this fight". (Archive because the actual site has its SSL certificate expired. Scroll down to the second image for proof.)

Also, take some time and read these articles by the founder of Swedens Pirate Party, Rick Falkvinge. He calls out ECPAT and their origins as christain fundamentalists in the first article:

These people are snakes that will shift their messaging to appeal to whatever political party is in power to push their reckless agenda. And there’s a whole network of these loons. Think the whole jewish conspiracy the neo-nazis rage about, except it’s actually christains. Look up the National Council of Churches and the World Council of Churches. Look up ecumenism. Look up the Society of Jesus. Anytime there’s an unconstitutional bill making the rounds wrapped in "think of the children" messaging you can bet that these sociopathic zealots are the driving force behind it.

Seriously Mike, do some research before you just start mindlessly parroting newspeak terms invented by your enemies.

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