Senate's New EARN IT Bill Will Make Child Exploitation Problem Worse, Not Better, And Still Attacks Encryption

Legal Issues

from the it's-a-bad-bill dept

You may recall the terrible and dangerous EARN IT Act from two years ago, which was a push by Senators Richard Blumenthal and Lindsey Graham to chip away more at Section 230 and to blame tech companies for child sexual abuse material (CSAM). When it was initially introduced, many people noticed that it would undermine both encryption and Section 230 in a single bill. While the supporters of the bill insisted that it wouldn’t undermine encryption, the nature of the bill clearly set things up so that you either needed to encrypt everything or to spy on everything. Eventually, the Senators were persuaded to adopt an amendment from Senator Patrick Leahy to more explicitly attempt to exempt encryption from the bill, but it was done in a pretty weak manner. That said, the bill still died.

But, as with 2020, 2022 is an election year, and in an election year some politicians just really want to get their name in headlines about how they’re “protecting the children,” and Senator Richard Blumenthal loves the fake “protecting the children” limelight more than most other Senators. And thus he has reintroduced the EARN IT Act, claiming (falsely) that it will somehow “hold tech companies responsible for their complicity in sexual abuse and exploitation of children.” This is false. It will actually make it more difficult to stop child sexual abuse, but we’ll get there. You can read the bill text here, and note that it is nearly identical to the version that came out of the 2020 markup process with the Leahy Amendment, with a few very minor tweaks. The bill has a lot of big name Senators as co-sponsors, and that’s from both parties, suggesting that this bill has a very real chance of becoming law. And that would be dangerous.

If you want to know just how bad the bill is, I found out about the re-introduction of the bill — before it was announced anywhere else — via a press release sent to me by NCOSE, formerly “morality in media,” the busybody organization of prudes who believe that all pornography should be banned. NCOSE was also a driving force behind FOSTA — the dangerous law with many similarities to EARN IT that (as we predicted) did nothing to stop sex trafficking, and plenty of things to increase the problem of sex trafficking, while putting women in danger and making it more difficult for the police to actually stop trafficking.

Amusingly (?!?) NCOSE’s press release tells me both that without EARN IT tech platforms “have no incentive to prevent” CSAM, and that in 2019 tech platforms reported 70 million CSAM images to NCMEC. They use the former to insist that the law is needed, and the latter to suggest that the problem is obviously out of control — apparently missing the fact that the latter actually shows how the platforms are doing everything they can to stop CSAM on their platforms (and others!) by following existing laws and reporting it to NCMEC where it can be put into a hash database and shared and blocked elsewhere.

But facts are not what’s important here. Emotions, headlines, and votes in November are.

Speaking of the lack of facts necessary, with the bill, they also have a “myth v. fact” sheet which is just chock full of misleading and simply incorrect nonsense. I’ll break that down in a separate post, but just as one key example, the document really leans heavily on the fact that Amazon sends a lot fewer reports of CSAM to NCMEC than Facebook does. But, if you think for more than 3 seconds about it (and aren’t just grandstanding for headlines) you might notice that Facebook is a social media site and Amazon is not. It’s comparing two totally different types of services.

However, for this post I want to focus on the key problems of EARN IT. In the very original version of EARN IT, the bill created a committee to study if exempting CSAM from Section 230 would help stop CSAM. Then it shifted to the same form it’s in now where the committee still exists, but they skip the part where the committee has to determine if chipping away at 230 will help, and just includes that as a key part of the bill. The 230 part mimics FOSTA (again which has completely failed to do what it claimed and has made the actual problems worse), in that it adds a new exemption to Section 230 that exempts any CSAM from Section 230.

EARN IT will make the CSAM problem much, much worse.

At least in the FOSTA case, supporters could (incorrectly and misleadingly, as it turned out) point to Backpage as an example of a site that had been sued for trafficking and used Section 230 to block the lawsuit. But here… there’s nothing. There really aren’t* examples of websites using Section 230 to try to block claims of child sexual abuse material*. So it’s not even clear what problem these Senators think they’re solving (unless the problem is “not enough headlines during an election year about how I’m protecting the children.”)

* Update: After publishing this story, a lawyer pointed out a couple of examples of cases, so I’ll qualify the original statement to say there really aren’t any credible examples of cases where Section 230 blocked legitimate complaints. The main example the lawyer sent over was a case we had written about just a week earlier regarding a clear nuisance lawsuit against Omegle, in which someone was trying to sue the company because creepy people used the site. This is actually a perfect example of why Section 230 is so important, because it kills such nuisance suits quickly. Without it, the range of internet services would be greatly diminished. Another case involves a recent one against Twitter, which again actually demonstrates the importance and benefits of Section 230, in that people are trying to hold Twitter responsible for the actions of users, rather than going after the actual perpetrators.

The best they can say is that companies need the threat of law to report and takedown CSAM. Except, again, pretty much every major website that hosts user content already does this. This is why groups like NCOSE can trumpet “70 million CSAM images” being reported to NCMEC. Because all of the major internet companies actually do what they’re supposed to do.

And here’s where we get into one of the many reasons this bill is so dangerous. It totally misunderstands how Section 230 works, and in doing so (as with FOSTA) it is likely to make the very real problem of CSAM worse, not better. Section 230 gives companies the flexibility to try different approaches to dealing with various content moderation challenges. It allows for greater and greater experimentation and adjustments as they learn what works — without fear of liability for any “failure.” Removing Section 230 protections does the opposite. It says if you do anything, you may face crippling legal liability. This actually makes companies less willing to do anything that involves trying to seek out, take down, and report CSAM because of the greatly increased liability that comes with admitting that there is CSAM on your platform to search for and deal with.

EARN IT gets the problem exactly backwards. It disincentivizes action by companies, because the vast majority of actions will actually increase rather than decrease liability. As Eric Goldman wrote two years ago, this version of EARN IT doesn’t penalize companies for CSAM, it penalizes them for (1) not magically making all CSAM disappear, for (2) knowing too much about CSAM (i.e., telling them to stop looking for it and taking it down) or (3) not exiting the industry altogether (as we saw a bunch of dating sites do post FOSTA).

EARN IT is based on the extremely faulty assumption that internet companies don’t care about CSAM and need more incentive to do so, rather than the real problem, which is that CSAM has always been a huge problem and stopping it requires actual law enforcement work focused on the producers of that content. But by threatening internet websites with massive liability if they make a mistake, it actually makes law enforcement’s job harder, because they will be less able to actually work with law enforcement. This is not theoretical. We already saw exactly this problem with FOSTA, in which multiple law enforcement agencies have said that FOSTA made their job harder because they can no longer find the information they need to stop sex traffickers. EARN IT creates the exact same problem for CSAM.

So the end result is that by misunderstanding Section 230, by misunderstanding internet company’s existing willingness to fight CSAM, EARN IT will undoubtedly make the CSAM problem worse by making it more difficult for companies to track CSAM down and report it, and more difficult for law enforcement to track down an arrest those actually responsible for it. It’s a very, very bad and dangerous bill — and that’s before we even get to the issue of encryption!

EARN IT is still very dangerous for encryption

EARN IT supporters claim they “fixed” the threat to encryption in the original bill by using text similar to Senator Leahy’s amendment to say that using encryption cannot “serve as an independent basis for liability.” But, the language still puts encryption very much at risk. As we’ve seen, the law enforcement/political class is very quick to want to (falsely) blame encryption for CSAM. And by saying that encryption cannot serve as “an independent basis” for liability, that still leaves open the door to using it as one piece of evidence in a case under EARN IT.

Indeed, one of the changes to the bill from the one in 2020 is that immediately after saying encryption can’t be an independent basis for liability it adds a new section that wasn’t there before that effectively walks back the encryption-protecting stuff. The new section says: “Nothing in [the part that says encryption isn’t a basis for liability] shall be construed to prohibit a court from considering evidence of actions or circumstances described in that subparagraph if the evidence is otherwise admissable.” In other words, as long as anyone bringing a case under EARN IT can point to something that is not related to encryption, it can point to the use of encryption as additional evidence of liability for CSAM on the platform.

Again, the end result is drastically increasing liability for the use of encryption. While no one will be able to use the encryption alone as evidence, as long as they point to one other thing — such as a failure to find a single piece of CSAM — then they can bring the encryption evidence back in and suggest (incorrectly) some sort of pattern or willful blindness.

And this doesn’t even touch on what will come out of the “committee” and its best practices recommendations, which very well might include an attack on end-to-end encryption.

The end result is that (1) EARN IT is attacking a problem that doesn’t exist (the use Section 230 to avoid responsibility for CSAM) (2) EARN IT will make the actual problem of CSAM worse by making it much more risky for internet companies to fight CSAM and (3) EARN IT puts encryption at risk by potentially increasing the liability risk of any company that offers encryption.

It’s a bad and dangerous bill and the many, many Senators supporting it for kicks and headlines should be ashamed of themselves.

Filed Under: csam, earn it, encryption, fosta, lindsey graham, richard blumenthal, section 230