TR Daily Senate Child Online Exploitation Bill Takes Aim at CDA Section 230
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Thursday, March 5, 2020

Senate Child Online Exploitation Bill Takes Aim at CDA Section 230

Sens. Lindsey Graham (R., S.C.), Richard Blumenthal (D., Conn.), Josh Hawley (R., Mo.), and Dianne Feinstein (D., Calif.) stirred widespread tech and public interest sector opposition with a bill they introduced today that would require Internet intermediaries to “earn” their protection from liability for third-party content under section 230 of the Communications Decency Act when it comes to violations of law related to child sexual abuse material.

Opponents warned of the potential detrimental effects of weakening a key provision they view as creating platforms for free expression, as well as the possibility that the bill might be used to undermine encryption and security.

The proposed Eliminating Abusive and Rampant Neglect of Interactive Technologies (EARN IT) Act would establish a National Commission on Online Child Sexual Exploitation Prevention “to recommend best practices related to identifying and reporting online child sexual exploitation,” according to a press release issued by the bill’s sponsors. The attorney general, the secretary of Homeland Security, and the chairman of the Federal Trade Commission would be among the members of the commission, which would also include representatives from law enforcement, survivors and victims’ services organizations, and industry, along with constitutional law experts and technical experts.

Congress would review the recommended best practices, and then companies seeking section 230 liability protections would have to certify compliance.

“Companies can choose to certify compliance with best practices in order to maintain immunity from child sexual abuse material statutes. If companies do not want to certify compliance with best practices, they can maintain immunity by establishing that they have other reasonable practices in place to prevent child sexual exploitation,” the press release says.

It adds that the bill would provide civil recourse for survivors “if companies choose not to comply with best practices or establish reasonable practices.”

Sen. Graham said, “For the first time, you will have to earn blanket liability protection when it comes to protecting minors. Our goal is to do this in a balanced way that doesn’t overly inhibit innovation, but forcibly deals with child exploitation.”

Sen. Blumenthal said, “The internet is infested with stomach-churning images of children who have been brutally assaulted and exploited, and who are forced to endure a lifetime of pain after these photographs and videos are circulated online. Simply put, tech companies need to do better. Tech companies have an extraordinary special safeguard against legal liability, but that unique protection comes with a responsibility. Companies that fail to comport with basic standards that protect children from exploitation have betrayed the public trust granted them by this special exemption. Online platforms’ near complete immunity from legal responsibility is a privilege—they have to earn it—and that’s what our bipartisan bill requires.”

Co-sponsors include Sens. Kevin Cramer (R., N.D.), Doug Jones (D., Ala.), Joni Ernst (R., Iowa), Bob Casey (D., Pa.), Sheldon Whitehouse (D., R.I.), and Dick Durbin (D., Ill.).

Sen. Ron Wyden (D., Ore.) criticized the EARN IT Act as “deeply flawed and counterproductive.”

“This terrible legislation is a Trojan horse to give Attorney General [Bill] Barr and Donald Trump the power to control online speech and require government access to every aspect of Americans’ lives. It is a desperate attempt to distract from the Justice Department’s failure to request the manpower, funding and resources to combat this scourge, despite clear direction from Congress more than a decade ago,” Sen. Wyden said.

“While Section 230 does nothing to stop the federal government from prosecuting crimes, these senators claim that making it easier to sue websites is somehow going to stop pedophiles. This bill is a transparent and deeply cynical effort by a few well-connected corporations and the Trump administration to use child sexual abuse to their political advantage, the impact to free speech and the security and privacy of every single American be damned,” he added.

“I'll be offering legislation in the coming days to drastically increase the number of prosecutors and agents hunting down child predators, require a single person in the White House to be personally responsible for these efforts and direct mandatory funding to the people who can actually make a difference in this fight,” Sen. Wyden said.

The tech sector and some public interest groups also responded strongly with criticism of the bill, with many warning that the best practices could be used to impose a requirement to provide a backdoor to encryption.

Information Technology Industry Council President and Chief Executive Officer Jason Oxman said, “Above all else, the technology industry supports a safe online environment. We remain committed to continuing our work with policymakers to address harmful content on the internet. Despite the legislation’s stated goals, we believe the EARN IT Act would fail to meaningfully tackle exploitative content beyond current tools and laws and contains fatal flaws that would undermine cybersecurity, privacy, and free speech. The tech industry will continue to work with governments, law enforcement, users, and communities, including with the sponsors of this bill, to ensure that tech products and services continue to create a safe environment online.”

Computer & Communications Industry Association President Matt Schruers said, “Technology providers need the flexibility to make digital products and services safer and more secure. Law enforcement needs the resources and direction to prioritize prosecuting bad actors. Everyone has a role to play in meeting our shared goal of reducing crime online. Unfortunately, creating a new federal commission to second-guess how private Internet companies manage content and secure their users is not the best way to fight crime.”

CCIA joined the Consumer Technology Association, the Internet Association, the Internet Infrastructure Coalition, and NetChoice in a letter to Sens. Graham and Blumenthal expressing concern about the bill’s constitutional issues and its implications for security.

Internet Association Senior Vice President–global government affairs Michael Bloom said, “IA member companies strive to end child exploitation online. They take a variety of actions, including dedicating engineering resources to the development of tools like PhotoDNA and building close partnerships with law enforcement agencies and organizations like the National Center for Missing and Exploited Children. Section 230 empowers internet companies to proactively identify and remove CSAM and other illegal or objectionable material. It’s important to remember that the law does not grant immunity to those who violate child exploitation laws.

“IA and its member companies share the goal of helping to eradicate child exploitation online and offline. We have very strong concerns, however, that the EARN IT Act as introduced may impede existing industry efforts to achieve this shared goal. We look forward to working with Chairman Graham and Senator Blumenthal on a path forward,” Mr. Bloom added.

Free Press Action Senior Policy Counsel Gaurav Laroia said, “The EARN IT Act is constitutionally suspect. It threatens key First and Fourth Amendment rights while failing to specify how it could or would administer the tests online entities need to pass to preserve those rights for themselves and their users.”

He added, “The drafters of this bill obviously want to address some real harms, yet their solutions could radically change the way we communicate online. The legislation sets up the U.S. government as the arbiter of all communications and conversations that happen on the internet—a terrible idea in any instance, and a truly terrifying one when the person driving this effort and seeking this power is none other than Donald Trump’s attorney general, Bill Barr.”

Mr. Laroia said, “Online child sexual-abuse material, as the bill labels it, is a heinous problem. It’s understandable that the co-sponsors of this bill want to address it. But the legislation’s construct could upset the entire internet ecosystem to combat activities that are already clearly unlawful.”

Section 230 of the CDA “has no impact on federal criminal law, which already makes production and distribution of child sexual-abuse material a crime and already requires online entities to tell law enforcement about the existence of any such material they find on their networks. Subjecting online providers to new civil suits and state laws unless they comply with the Earn It Act’s currently undefined best practices is a poor substitute for strengthening existing federal criminal laws as needed,” he continued.

Mr. Laroia added, “The particularly frightening part is the collateral damage caused by ceding so much authority to this government or any government. For example, handing over this kind of power to an administration and attorney general with such an abysmal record on LGBTQIA+ rights could seriously impact the availability of lifesaving information. We wouldn’t want an ordinary administration to have the authority to police the content that flows over our communications networks. The threats are that much greater with the Trump administration.”

In addition, he said, that it is “likely that AG Barr would advance standards that would enable him to outlaw secure encryption, based on the notion that the police should have a key to every lock and a transcript of every private conversation.”

Kate Ruane, senior legislative counsel for the American Civil Liberties Union, said, “The EARN It Act threatens the safety of activists, domestic violence victims, and millions of others who rely on strong encryption every day. Because of the safety and security encryption provides, Congress has repeatedly rejected legislation that would create an encryption backdoor. This legislation would empower an unelected commission to effectively mandate what Congress has time and again decided against, while also jeopardizing free expression on the Internet in the process. This bill is not the solution to the real and serious harms it claims to address.”

Billy Easley, senior policy analyst at Americans for Prosperity, said, “The EARN IT Act provides no guarantee that these so-called backdoors won’t be exploited by bad actors to gain access to our most personal information. Make no mistake: a backdoor for law enforcement is a front door for criminals. It is not possible to separate the two. Every American has a stake in seeing this legislation fail because we all rely on encryption to protect our conversations, our finances, and our internet-connected devices. We urge Congress to soundly reject this bill.”

John Bergmayer, legal director at Public Knowledge, said, “Many platforms could do more to prevent the exploitation of children on their services. We are open to legislative ideas that ensure that Section 230 continues to serve its intended purpose, which is to promote legitimate free expression, as well as proposals that protect children and give law enforcement the tools and resources they need to prosecute cases.

“However,” he added, “we cannot support a bill that could discourage the use of privacy-promoting technologies like end-to-end encryption. These technologies protect users of all kinds, including children, members of our armed services, and diverse vulnerable communities. While we appreciate that the bill attempts to ensure that any best practices recommended by the committee it sets up take into account issues of user security and the broader public interest, we remain concerned that either the practices or the underlying standard of ‘recklessness’ could put the thumb on the scale of law enforcement backdoors to communications and other data, which is inconsistent with the requirements of secure communications.”

Mr. Bergmayer said, “Additionally, a process that allows online platforms to regain a liability shield is likely to mostly benefit larger and more dominant platforms who have the resources to certify their compliance. Internet laws should not subject smaller platforms to higher levels of legal risk, as this harms competition and new entry. Among other things, this makes dominant platforms even more likely to be targeted by people who would misuse them.

“We look forward to working with Congress on solutions to the problems this bill seeks to address,” he concluded.

Greg Nojeim, director at the Freedom, Security & Technology Project at the Center for Democracy & Technology, said, “This bill blurs the line between companies and government in dangerous ways. If companies’ policies about looking for and discovering material containing child sexual abuse are overly dictated by the Commission’s guidelines, they may be considered agents of the government conducting warrantless searches. Congress could be giving a get-out-of-jail-free card to defendants in child exploitation cases.”

TechFreedom President Berin Szóka said, “The EARN IT Act could actually make law enforcement’s job significantly harder by ending today’s close cooperation between law enforcement and tech companies.” If reporting processes are mandated, it could convert companies “into ‘government actors’ for Fourth Amendment purposes. That would mean courts would have to issue a warrant before nominally private companies could ‘search’ private communications,” he said. —Lynn Stanton, [email protected]

MainStory: FederalNews Congress InternetIoT

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