The Top Ten Mistakes Senators Made During Today's EARN IT Markup
from the getting-everything-wrong dept
Today, the Senate Judiciary Committee unanimously approved the EARN IT Act and sent that legislation to the Senate floor. As drafted, the bill will be a disaster. Only by monitoring what users communicate could tech services avoid vast new liability, and only by abandoning, or compromising, end-to-end encryption, could they implement such monitoring. Thus, the bill poses a dire threat to the privacy, security and safety of law-abiding Internet users around the world, especially those whose lives depend on having messaging tools that governments cannot crack. Aiding such dissidents is precisely why it was the U.S. government that initially funded the development of the end-to-end encryption (E2EE) now found in Signal, Whatsapp and other such tools. Even worse, the bill will do the opposite of what it claims: instead of helping law enforcement crack down on child sexual abuse material (CSAM), the bill will actually help the most odious criminals walk free.
As with the July 2020 markup of the last Congress’s version of this bill, the vote was unanimous. This time, no amendments were adopted; indeed, none were even put up for a vote. We knew there wouldn’t be much time for discussion because Sen. Dick Durbin kicked off the discussion by noting that Sen. Lindsey Graham would have to leave soon for a floor vote.
The Committee didn’t bother holding a hearing on the bill before rushing it to markup. The one and only hearing on the bill occurred just six days after its introduction back in March 2020. The Committee thereafter made major (but largely cosmetic) changes to the bill, leaving its Members more confused than ever about what the bill actually does. Today’s markup was a singular low-point in the history of what is supposed to be one of the most serious bodies in Congress. It showed that there is nothing remotely judicious about the Judiciary Committee; that most of its members have little understanding of the Internet and even less of how the, ahem, judiciary actually works; and, saddest of all, that they simply do not care.
Here are the top ten legal and technical mistakes the Committee made today.
Mistake #1: “Encryption Is not Threatened by This Bill”
Strong encryption is essential to online life today. It protects our commerce and our communications from the prying eyes of criminals, hostile authorian regimes and other malicious actors.
Sen. Richard Blumenthal called encryption a “red herring,” relying on his work with Sen. Leahy’s office to implement language from his 2020 amendment to the previous version of EARN IT (even as he admitted to a reporter that encryption was a target). Leahy’s 2020 amendment aimed to preserve companies’ ability to offer secure encryption in their products by providing that a company could not be found in violation of the law because it utilized secure encryption, doesn’t have the ability to decrypt communications, or fails to undermine the security of their encryption (for example, by building in a backdoor for use by law enforcement).
But while the 2022 EARN IT Act contains the same list of protected activities, the authors snuck in new language that undermines that very protection. This version of the bill says that those activities can’t be an independent basis of liability, but that courts can consider them as evidence while proving the civil and criminal claims permitted by the bill’s provisions. That’s a big deal. EARN IT opens the door to liability under an enormous number of state civil and criminal laws, some of which require (or could require, if state legislatures so choose) a showing that a company was only reckless in its actions—a far lower showing than federal law’s requirement that a defendant have acted “knowingly.” If a court can consider the use of encryption, or failure to create security flaws in that encryption, as evidence that a company was “reckless,” it is effectively the same as imposing liability for encryption itself. No sane company would take the chance of being found liable for transmitting CSAM; they’ll just stop offering strong encryption instead.
Mistake #2: The Bill’s Sponsors Readily Conceded that EARN IT Would Coerce Monitoring for CSAM
EARN IT’s sponsors repeatedly complained that tech companies aren’t doing enough to monitor for CSAM—and that their goal was to force them to do more. As Sen. Blumenthal noted, free software (PhotoDNA) makes it easy to detect CSAM, and it’s simply outrageous that some sites aren’t even using it. He didn’t get specific but we will: both Parler and Gettr, the alternative social networks favored by the MAGA right, have refused to use PhotoDNA. When asked about it, Parler’s COO told The Washington Post: “I don’t look for that content, so why should I know it exists?” The Stanford Internet Observatory’s David Thiel responded:
This, frankly, is just reckless. You cannot run a social media site, particularly one targeted to include content forbidden from mainstream platforms, solely with voluntary flagging. Implementing PhotoDNA to prevent CEI is the bare minimum for a site allowing image uploads. 9/10
— David Thiel (@elegant_wallaby) August 12, 2021
We agree completely—morally. So why, as Berin asked when EARN IT was first introduced, doesn’t Congress just directly mandate the use of such easy filtering tools? The answer lies in understanding why Parler and Gettr can get away with this today. Back in 2008, Congress required tech companies that become aware of CSAM to report it immediately to NCMEC, the quasi-governmental clearinghouse that administers the database of CSAM hashes used by PhotoDNA to identify known CSAM. Instead of requiring companies to monitor for CSAM, Congress said exactly the opposite: nothing in 18 U.S.C. § 2258A “shall be construed to require a provider to monitor [for CSAM].”
Why? Was Congress soft on child predators back then? Obviously not. Just the opposite: they understood that requiring tech companies to conduct searches for CSAM would make them state actors subject to the Fourth Amendment’s warrant requirement—and they didn’t want to jeopardize criminal prosecutions.
Conceding that the purpose of EARN IT Act is to coerce searches for CSAM is a mistake, a colossal one, because it invites courts to rule that searching wasn’t voluntary.
Mistake #3: The Leahy Amendment Alone Won’t Protect Privacy & Security, or Avoid Triggering the Fourth Amendment
While Sen. Leahy’s 2020 amendment was a positive step towards protecting the privacy and security of online communications, and Lee’s proposal today to revive it is welcome, it was always an incomplete solution. While it protected companies against liability for offering encryption or failing to undermine the security of their encryption, it did not protect the refusal to conduct monitoring of user communications. A company offering E2EE products might still be coerced into compromising the security of its devices by scanning user communications “client-side” (i.e., on the device) prior to encrypting sent communications or after decrypting received communications.
Apple recently proposed such a technology for such client-side scanning, raising concerns from privacy advocates and civil society groups. For its part, Apple assured that safeguards would limit use of the system to known CSAM to prevent the capability from being abused by foreign governments or rogue actors. But the capacity to conduct such surveillance presents an inherent risk of being exploited by malicious actors. Some companies may be able to successfully safeguard such surveillance architecture from misuse or exploitation. However, resources and approaches will vary across companies, and it is a virtual certainty that not all of them will be successful. And if done under coercion, create a risk that such efforts will be ruled state action requiring a warrant under the Fourth Amendment.
Our letter to the Committee proposes an easy way to expand the Leahy amendment to ensure that companies won’t be held liable for not monitoring user content: borrow language directly from Section 2258A(f).
Mistake #4: EARN IT’s Sponsors Just Don’t Understand the Fourth Amendment Problem
Sen. Blumenthal insisted, repeatedly, that EARN IT contained no explicit requirement not to use encryption. The original version of the bill would, indeed, have allowed a commission to develop “best practices” that would be “required” as conditions of “earning” back the Section 230 immunity tech companies need to operate—hence the bill’s name. But dropping that concept didn’t really make the bill less coercive because the commission and its recommendations were always a sideshow. The bill has always coerced monitoring of user communications—and, to do that, the abandonment or bypassing of strong encryption—indirectly, through the threat of vast legal liability for not doing enough to stop the spread of CSAM.
Blumenthal simply misunderstands how the courts assess whether a company is conducting unconstitutional warrantless searches as a “government actor.” “Even when a search is not required by law, … if a statute or regulation so strongly encourages a private party to conduct a search that the search is not ‘primarily the result of private initiative,’ then the Fourth Amendment applies.” U.S. v. Stevenson, 727 F.3d 826, 829 (8th Cir. 2013) (quoting Skinner v. Railway Labor Executives’ Assn, 489 U.S. 602, 615 (1989)). In that case, the court found that AOL was not a government actor because it “began using the filtering process for business reasons: to detect files that threaten the operation of AOL’s network, like malware and spam, as well as files containing what the affidavit describes as “reputational” threats, like images depicting child pornography.” AOL insisted that it “operate[d] its file-scanning program independently of any government program designed to identify either sex-offenders or images of child pornography, and the government never asked AOL to scan Stevenson’s e-mail.” Id. By contrast, every time EARN IT’s supporters explain their bill, they make clear that they intend to force companies to search user communications in ways they’re not doing today.
Mistake #2 Again: EARN IT’s Sponsors Make Clear that Coercion Is the Point
In his opening remarks today, Sen. Graham didn’t hide the ball:
“Our goal is to tell the social media companies ‘get involved and stop this crap. And if you don’t take responsibility for what’s on your platform, then Section 230 will not be there for you.’ And it’s never going to end until we change the game.”
Sen. Chris Coons added that he is “hopeful that this will send a strong signal that technology companies … need to do more.” And so on and so forth.
If they had any idea what they were doing, if they understood the Fourth Amendment issue, these Senators would never admit that they’re using liability as a cudgel to force companies to take affirmative steps to combat CSAM. By making intentions unmistakable, they’ve given the most vile criminals exactly what they need to to challenge the admissibility of CSAM evidence resulting from companies “getting involved” and “doing more.” Though some companies, concerned with negative publicity, may tell courts that they conducted searches of user communications for “business reasons,” we know what defendants will argue: the companies’ “business reason” is avoiding the wide, loose liability that EARN IT subjected them to. EARN IT’s sponsors said so.
Mistake #5: EARN IT’s Sponsors Misunderstanding How Liability Would Work
Except for Sen. Mike Lee, no one on the Committee seemed to understand what kind of liability rolling back Section 230 immunity, as EARN IT does, would create. Sen. Blumenthal repeatedly claimed that the bill requires actual knowledge. One of the bill’s amendments (the new Section 230(e)(6)(A)) would, indeed, require actual knowledge by enabling civil claims under 18 U.S.C. § 2255 “if the conduct underlying the claim constitutes a violation of section 2252 or section 2252A,” both of which contain knowledge requirements. This amendment is certainly an improvement over the original version of EARN IT, which would have explicitly allowed 2255 claims under a recklessness standard.
But the two other changes to Section 230 clearly don’t require knowledge. As Sen. Lee pointed out today, a church could be sued, or even prosecuted, simply because someone posted CSAM on its bulletin board. Multiple existing state laws already create liability based on something less than actual knowledge of CSAM. As Lee noted, a state could pass a law creating strict liability for hosting CSAM. Allowing states to hold websites liable for recklessness (or even less) while claiming that the bill requires actual knowledge is simply dishonest. All these less-than-knowledge standards will have the same result: coercing sites into monitoring user communications, and into abandoning strong encryption as an obstacle to such monitoring.
Blumenthal made it clear that this is precisely what he intends, saying: “Other states may wish to follow [those using the “recklessness” standard]. As Justice Brandeis said, states are the laboratories of democracy … and as a former state attorney general I welcome states using that flexibility. I would be loath to straightjacket them in their adoption of different standards.”
Mistake #6: “This Is a Criminal statute, This Is Not Civil Liability”
So said Sen. Lindsey Graham, apparently forgetting what his own bill says. Sen. Dianne Feinstein added her own misunderstanding, saying that she “didn’t know that there was a blanket immunity in this area of the law.” But if either of those statements were true, the EARN IT Act wouldn’t really do much at all. Section 230 has always explicitly carved out federal criminal law from its immunities; companies can already be charged for knowing distribution of child sexual abuse material (CSAM) or child sexual exploitation (CSE) under federal criminal statutes. Indeed, Backpage and its founders were criminally prosecuted even without SESTA’s 2017 changes to Section 230. If the federal government needs assistance in enforcing those laws, it could adopt Sen. Mike Lee’s amendment to permit state criminal prosecutions when the conduct would constitute a violation of federal law. Better yet, the Attorney General could use an existing federal law (28 U.S.C. § 543) to deputize state, local, and tribal prosecutors as “special attorneys” empowered to prosecute violations of federal law. Why no AG has bothered to do so yet is unclear.
What is clear is that EARN IT isn’t just about criminal law. EARN IT expressly carves out civil claims under certain federal statutes, and also under whatever state laws arguably relate to “the advertisement, promotion, presentation, distribution, or solicitation of child sexual abuse material” as defined by federal law. Those laws can and do vary, not only with respect to the substance of what is prohibited, but also the mental state required for liability. This expansive breadth of potential civil liability is part of what makes this bill so dangerous in the first place.
Mistake #7: “If They Can Censor Conservatives, They Can Stop CSAM!”
As at the 2020 markup, Sen. Lee seemed to understand most clearly how EARN IT would work, the Fourth Amendment problems it raises, and how to fix at least some of them. A former Supreme Court Clerk, Lee has a sharp legal mind, but he seems to misunderstand much of how the bill would work in practice, and how content moderation works more generally.
Lee complained that, if Big Tech companies can be so aggressive in “censoring” speech they don’t like, surely they can do the same for CSAM. He’s mixing apples and oranges in two ways. First, CSAM is the digital equivalent of radioactive waste: if a platform gains knowledge of it, it must take it down immediately and report it to NCMEC, and faces stiff criminal penalties if it doesn’t. And while “free speech” platforms like Parler and Gettr refuse to proactively monitor for CSAM (as discussed below), every mainstream service goes out of its way to stamp out CSAM on unencrypted service. Like AOL in the Stevenson case, they do so for business and reputational reasons.
By contrast no website even tries to block all “conservative” speech; rather, mainstream platforms must make difficult judgment calls about taking down politically charged content, such as Trump’s account only after he incited an insurrection in an attempted coup and misinformation about the 2020 election being stolen. Republicans are mad about where tech companies draw such lines.
Second, social media platforms can only moderate content that they can monitor. Signal can’t moderate user content and that is precisely the point: end-to-end-encryption means that no one other than the parties to a communication can see it. Unlike normal communications, which may be protected by lesser forms of “encryption,” the provider isn’t standing in the middle of the communication and it doesn’t have the keys to unlock the messages that it is passing back and forth. Yes, some users will abuse E2EE to share CSAM, but the alternative is to ban it for everyone. There simply isn’t a middle ground.
There may indeed be more that some tech companies could do about content they can see—both public content like social media posts and private content like messages (protected by something less than E2EE). But their being aggressive about, say, misinformation about COVID or the 2020 election has nothing whatsoever to do with the cold, hard reality that they can’t moderate content protected by strong encryption.
It’s hard to tell whether Lee understands these distinctions. Maybe not. Maybe he’s just looking to wave the bloody shirt of “censorship” again. Maybe he’s saying the same thing everyone else is saying, essentially: “Ah, yes, but if only Facebook, Apple and Google didn’t use end-to-end encryption for their messaging services, then they could monitor those for CSAM just like they monitor and moderate other content!” Proposing to amend the bill to require actual knowledge under both state and federal law suggests he doesn’t want this result, but who knows?
Mistake #8: Assuming the Fourth Amendment Won’t Require Warrants If It Applies
Visibility to the provider relates to one important legal distinction not discussed at all today—but that may well explain why the bill’s sponsors don’t seem to care about Fourth Amendment concerns. It’s an argument Senate staffers have used to defend the bill since its introduction. Even if compulsion through vast legal liability did make tech companies government actors, the Fourth Amendment requires a warrant only for searches of material for which users have a reasonable expectation of privacy. Kyllo v. United States, 533 U.S. 27, 33 (2001); see Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). Courts long held that users had no such expectations for digital messages like email held by third parties.
But that began to change in 2010. If searches of emails trigger the Fourth Amendment—and U.S. v. Warshak, 631 F.3d 266 (6th Cir. 2010) said they do—searches of private messaging certainly would. The entire purpose of E2EE is to give users rock-solid expectations of privacy in their communications. More recently, the Supreme Court has said that, “given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection.” Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018). These cases draw the line Sen. Lee is missing: no, of course users don’t have reasonable expectations of privacy in public social media posts—which is what he’s talking about when he points to “censorship” of conservative speech. EARN IT could avoid the Fourth Amendment by focusing on content providers can see, but it doesn’t, because it’s intended to force companies to be able to see all user communications.
Mistake #9: What They didn’t Discuss: Anonymous Speech
The Committee didn’t discuss how EARN IT would affect speech protected by the First Amendment. No, of course CSAM isn’t protected speech, but the bill would affect lawful speech by law-abiding citizens—primarily by restricting anonymous speech. Critically, EARN IT doesn’t just create liability for trafficking in CSAM. The bill also creates liability for failing to stop communications that “solicit” or “promote” CSAM. Software like PhotoDNA can flag CSAM (by matching cryptographic hashes to known images in NCMEC’s database) but identifying “solicitation” or “promotion” is infinitely more complicated. Every flirtatious conversation between two adult users could be “solicitation” of CSAM—or it might be two adults doing adult things. (Adults sext each other—a lot. Get over it!) But “on the Internet, nobody knows you’re a dog”—and there’s no sure way to distinguish between adults and children.
The federal government tried to do just that in the Communications Decency Act (CDA) of 1996 (nearly all of which, except Section 230, was struck down) and the Child Online Protection Act (COPA) of 1998. Both laws were struck down as infringing on the First Amendment right to accessing lawful content anonymously. EARN IT accomplishes much the same thing indirectly, the same way it attacks encryption: basing liability on anything less than knowledge means you can be sued for not actively monitoring, or for not age-verifying users, especially when the risks are particularly high (such as when you “should have known” you were dealing with minor users).
Indeed, EARN IT is even more constitutionally suspect. At least COPA focused on content deemed “harmful to minors.” Instead of requiring age-gating for sites that offered porn and sex-related content (e.g., LGBTQ teen health), EARN IT would affect all users of private communications services, regardless of the nature of the content they access or exchange. Again, the point of E2EE is that the service provider has no way of knowing whether messages are innocent chatter or CSAM.
EARN IT could raise other novel First Amendment problems. Companies could be held liable not only for failing to age-verify all users—a clear First Amendment violation— but also for failing to bar minors from using E2EE services so that their communications can be monitored or failing to use client-side monitoring on minors’ devices, and even failing to segregate adults from minors so they can’t communicate with each other.
Without the Lee Amendment, EARN IT leaves states free to base liability on explicitly requiring age-verification or limits on what minors can do.
Mistake #10: Claiming the Bill Is “Narrowly Crafted”
If you’ve read this far, Sen. Blumenthal’s stubborn insistence that this bill is a “narrowly targeted approach” should make you laugh—or sigh. If he truly believes that, either he hasn’t adequately thought about what this bill really does or he’s so confident in his own genius that he can simply ignore the chorus of protest from civil liberties groups, privacy advocates, human rights activists, minority groups, and civil society—all of whom are saying that this bill is bad policy.
If he doesn’t truly believe what he’s saying, well… that’s another problem entirely.
Bonus Mistake!: A Postscript About the Real CSAM problem
Lee never mentioned that the only significant social media services that don’t take basic measures to identify and block CSAM are Parler, Gettr and other fringe sites celebrated by Republicans as “neutral public fora” for “free speech.” Has any Congressional Republican sent letters to these sites asking why they refuse to use PhotoDNA?
Instead, Lee did join Rep. Ken Buck in March 2021 to interrogate Apple about its decision to take down the Parler app. Answer: Parler hadn’t bothered setting any meaningful content moderation system. Only after Parler agreed to start doing some moderation of what appeared in its Apple app (but not its website) did Apple reinstate the app.
Filed Under: 1st amendment, 4th amendment, chris coons, content moderation, csam, dianne feinstein, e2ee, earn it, encryption, lindsey graham, mike lee, monitoring, pat leahy, photodna, richard blumenthal, section 230