from the why-doesn't-anyone-understand-this dept
We’ve talked about so many problems with the EARN IT Act, but there are more! I touched on this a bit in my post about how EARN IT is worse than FOSTA, but it came up a bit in the markup last week, and it showed that the Senators pushing for this do not understand the issues around the knowledge standard required here, and how various state laws complicate things. Is it somewhat pathetic that the very senators pushing for a law that would make major changes impacting a wide variety of things don’t seem to understand the underlying mechanisms at play? Sure is! But rest assured that you can be smarter than a senator.
First, let’s start here: the senators supporting EARN IT seem to think that if you remove Section 230 for a type of law-violating content (in this case, child sexual abuse material, or CSAM), that magically means that website will be liable for that content — and because of that they’ll magically make it disappear. The problem is that this is not how any of this actually works. Section 230 expert and law professor Jeff Kosseff broke the details down in a great thread, but I want to make it even more clear.
Today's EARN IT Act markup had a lot of discussion about what mens rea would be necessary for platforms to face civil liability for distributing CSAM. The discussion wasn't terribly clear, so I'm going to try to break down what we do know about the legal standards.
— Jeff Kosseff (@jkosseff) February 10, 2022
As a reminder, Section 230 has never been a “get out of jail free” card, as some of its critics suggest. It’s a procedural benefit that gets cases that would otherwise lose on 1st Amendment grounds tossed out at an earlier stage (when it’s much less costly, and thus, much less likely to destroy a smaller company).
So, here, the senators supporting EARN IT seem to think, falsely, that if they remove Section 230 for CSAM that (1) it will make websites automatically liable for CSAM, and (2) that will somehow spur them into action to take down all CSAM because of the legal risk and that this will somehow make CSAM go away. Both of these assumptions are wrong, and wrong in such stupid ways that, again, EARN IT would likely make problems worse, not better. The real problem underlying both of these is the question of “knowledge.” The legal folks like Jeff Kosseff dress this up as “mens rea” but the key thing is about whether or not a website knows about the illegal content.
This impacts everything in multiple ways. As Kosseff points out in his thread, Supreme Court precedent (which you would know if you read just the first chapter of his Section 230 book) says that for a distributor to be held liable for content that is not protected by the 1st Amendment, it needs to have knowledge of the illegal content. Supporters of EARN IT counteract with the correct, but meaningless, line that “CSAM is not protected by the 1st Amendment.” And, it’s not. But that’s not the question when it comes to distributor liability. In Smith v. California, the Supreme Court overturned a conviction of Eleazar Smith (his bookstore sold a book the police believed was obscene), noting that even if the book’s content was not protected by the 1st Amendment, the 1st Amendment cannot impose liability on a distributor, if that distributor does not have knowledge of the unprotected nature of the content. Any other result, Justice Brennan correctly noted, would lead distributors to be much more censorial, including of protected speech:
There is no specific constitutional inhibition against making the distributors of good the strictest censors of their merchandise, but the constitutional guarantees of the freedom of speech and of the press stand in the way of imposing a similar requirement on the bookseller. By dispensing with any requirement of knowledge of the contents of the book on the part of the seller, the ordinance tends to impose a severe limitation on the public’s access to constitutionally protected matter. For if the bookseller is criminally liable without knowledge of the contents, and the ordinance fulfills its purpose, he will tend to restrict the books he sells to those he has inspected; and thus the State will have imposed a restriction upon the distribution of constitutionally protected as well as obscene literature. It has been well observed of a statute construed as dispensing with any requirement of scienter that: ‘Every bookseller would be placed under an obligation to make himself aware of the contents of every book in his shop. It would be altogether unreasonable to demand so near an approach to omniscience.’ The King v. Ewart, 25 N.Z.L.R. 709, 729 (C.A.). And the bookseller’s burden would become the public’s burden, for by restricting him the public’s access to reading matter would be restricted. If the contents of bookshops and periodical stands were restricted to material of which their proprietors had made an inspection, they might be depleted indeed. The bookseller’s limitation in the amount of reading material with which he could familiarize himself, and his timidity in the face of his absolute criminal liability, thus would tend to restrict the public’s access to forms of the printed word which the State could not constitutionally suppress directly. The bookseller’s self-censorship, compelled by the State, would be a censorship affecting the whole public, hardly less virulent for being privately administered. Through it, the distribution of all books, both obscene and not obscene, would be impeded.
While there are some other cases, this remains precedent and it’s difficult to see how the courts would (or could) say that a website is strictly liable for content that it does not know about.
This creates a bunch of problems. First and foremost, removing 230 in this context then gives websites not an incentive to do more to find CSAM, but actually to do less to find CSAM, because the lack of knowledge would most likely protect them from liability. That is the opposite of what everyone should want.
Second, it creates various problems in how EARN IT interacts with various state laws. As we’ve pointed out in the past, EARN IT isn’t just about the federal standards for CSAM, but it opens up websites to legal claims regarding state laws as well. And the knowledge standards regarding CSAM in state laws is, literally, all over the map. Many do require actual knowledge (which again, reverses the incentives here). Others, however, have much more troubling standards around “should have known” or “good reason to know” or in some cases, they set a standard of “recklessness” for not knowing.
Some of those, if challenged, might not stand up to 1st Amendment scrutiny, such as what’s found in Smith v. California, which should require actual knowledge, but either way the law would create a huge mess — with it mostly incentivizing companies not to look for this. And considering that the sponsors of the bill keep saying that the whole reason of the bill is to get companies to do more looking for CSAM, they’ve literally got the entire law backwards.
What’s most troubling, is that when Senator Blumenthal was pushed on this point during the markup, and it was mentioned that different states have different standards, rather than realizing one of the many (many) problems with the bill, he literally suggested that he hoped more states would change their standards to a potentially unconstitutional level, in which actual knowledge is not required for liability. And that’s just setting up a really dangerous confrontation with the 1st Amendment.
If Senator Blumenthal and his legislative staffers actually cared about stopping CSAM, they would be willing to engage and talk about this. Instead, they refuse to engage, and mock anyone who brings up these points. Perhaps it’s fun for them to generate false headlines while fundamentally causing massive problems for the internet and speech and making the CSAM problem worse while pretending the reverse is happening. But some of us find it immensely problematic.