Josh Hawley Rages Ignorantly And Misleadingly In Trying To Push Encryption-Destroying STOP CSAM Bill

Too Much Free Time

from the where-is-the-STOP-HAWLEY-act? dept

Every week it’s some other dumb thing going on in the Senate. On Tuesday Senator Josh Hawley went to the (mostly empty) Senate floor to “seek unanimous consent” for the STOP CSAM bill. That’s basically a process to rush the bill forward before it’s ready.

We’ve written about STOP CSAM before. Despite it’s name, it won’t actually “stop CSAM” but could do a lot of other harm, including effectively undermine end-to-end encryption by allowing plaintiffs to argue that companies that employ encryption are “intentionally, knowingly, recklessly, or negligently” enabling the sharing of child sexual abuse material.

Of course Hawley didn’t actually engage with any of the underlying bits about STOP CSAM. He just wanted a stage in which he could ignorantly bleat on about the evils of “big tech” and how Section 230 is a problem. You can see the entire thing here. Almost everything Hawley says is either wrong or misleading.

Hawley starts out, as is the standard operating procedure for grandstanding politicians to demand we all just “think about the children” he is using as props for political gain. Is he looking out for their health and safety with better schooling and better healthcare? Is he looking to help protect them from the threat of school shootings? Of course not. He’s mad that the internet exists.

He claims that at last week’s hearing Mark Zuckerberg felt “forced to apologize to the parents there in the room” because of what he heard at that hearing. Of course, anyone who actually watched the hearing knows that the only thing that forced Zuck to apologize was Josh Hawley demanding he apologize (and also demanding Zuck give money to the people in the room, which was just weird).

Hawley also showed this chart to claim it shows just how bad the tech companies are… but that report shows the opposite, as anyone with any knowledge in this space would know. It shows how the companies have gotten much better at finding and reporting CSAM on their platforms to the CyberTipline run by NCMEC. To use that chart to say it proves the companies are a problem is just flat out stupid. The companies are following the law, and reporting the CSAM they find, and they’ve gotten better (through hash matching and other technologies) at finding, blocking, and reporting this material. That should be a cause for celebration. Instead people like Hawley misrepresent it as showing the companies aren’t doing enough.

What it really shows, though, is that the DOJ isn’t doing enough. NCMEC then reports this information to the DOJ who can go after the traffickers, but the DOJ generally ignores much of this. This is why we think Senator Ron Wyden’s bill to actually get the DOJ to do its job and to give NCMEC more resources makes much more sense. But Hawley isn’t pushing that bill. He’s pushing this terrible one.

Why? Because he hates Section 230 and is deliberately misrepresenting 230 to pretend that’s what allows companies to not be held liable for Section 230.

Because Hawley then goes on to complain about Section 230 is the problem. But… that’s just factually false. Section 230 directly and explicitly exempts federal criminal law, including laws relating to the sexual exploitation of children. And, every platform knows full well that if it becomes aware of CSAM it is in legal deep shit if it does not report it to the CyberTipline as soon as possible. That’s got literally nothing to do with Section 230. And changing Section 230 won’t change any of that.

Hawley’s rant about 230 is just fundamentally stupid:

Oh and the tech executives, they know all about it, Mr. President, and they’re not doing a thing about it. Why? Because they are not accountable. Here’s the bottom line. This is the only industry in the country that can make a product that will literally kill you and, if it does, you cannot do anything about it. If it kills your child, you can’t do anything about it. If it harms you, you can’t do anything about it. Just think about it for a second.

In this country, if a Coca Cola manufacturer makes a bottle that explodes in your hands, you can sue them. If a drug company makes drugs that are full of adulterated products that cause harms that are not disclosed that kill people, you can sue them. If an automobile maker makes cars that explode, you can sue ‘em. Not these companies. No (obnoxious fake chuckle), not these companies. These companies have a special immunity from suit.

So, basically all of that is bullshit. 100% bullshit. Unadulterated, harmful bullshit. Can we sue Hawley over that? Of course not. Because he has immunity. Why? Well, first, as an elected official he has a special immunity just for Congress under the speech & debate clause.

But also, because of the 1st Amendment. He is free to mislead the public with impunity because the 1st Amendment allows it.

To respond to the specifics here: (1) Section 230’s immunity does not apply to CSAM. (2) The immunity that is provided to all internet users and websites (not just some special industry) only applies to holding one party liable for a third party’s speech. (3) The examples of physical harm are totally inapplicable here. If Facebook literally exploded and killed someone you could still sue. The problem is that Facebook doesn’t explode. It’s not “Facebook” that is causing the harm here, it’s users on Facebook and their speech. And that’s why the 1st Amendment issue comes back up again. Which Hawley pretends not to understand. Oh, and also the claim that the tech industry isn’t “doing anything” is proven directly and obviously false by his chart in the image above, which shows they are reporting tons of accounts to NCMEC.

Thankfully, Senator Ron Wyden stood up to object to Hawley, and did so passionately. He highlighted how terrible CSAM is and the “monsters” behind it. But noted that the STOP CSAM bill does not actually help. Indeed, the attack on encryption in STOP CSAM would put people at much greater risk by removing important protections from everyone.

He also highlighted his own bill (which again, everyone is ignoring) which actually would help protect kids.

Hawley then got back up and claimed that the bill explicitly says it doesn’t outlaw encryption, but that’s incredibly misleading. It pretends to do so, just like similar language in the EARN IT Act did. It says that the bill shouldn’t be interpreted to impact encryption, but still allows plaintiffs to point to encryption as evidence of negligence, thereby making it a liability to offer encrypted communications.

Wyden followed up by pointing out that it’s weird that Hawley is even pushing this bill right now, when Senator Durbin (who is the author/sponsor of the bill) is currently going around shopping a greatly amended version of the bill (Hawley was pushing for unanimous consent on the old version).

Of course, this was all theater. Hawley knew it wasn’t going to happen. He just wanted airtime to lie about the tech industry and about Section 230. Because better to do that kind of grandstanding than to deal with his own home state press calling out his support for insurrectionists, or how he’s making the problem at the border worse himself because he thinks it will harm President Biden.

Hawley, of course, is not a real leader. He needs to deflect and distract. And that’s all this little show was. That he’s using children as props and lying about the law is a small consequence for him as he tries to lead a populist charge to hide his own failings.

Filed Under: encryption, grandstanding, josh hawley, protect the children, ron wyden, section 230, stop csam