ACLU, Allies Warn Internet Bills 'Would Undermine Free Speech, Privacy, and Security'

As the U.S. Senate Judiciary Committee considered a series of bills on Thursday, the ACLU and other digital rights advocates warned against federal legislation that would promote censorship, disincentivize protecting users with strong encryption, and expand law enforcement access to personal data.

A trio of ACLU policy experts sent a letter to the committee about three bills: the Cooper Davis Act, the Eliminating Abusive and Rampant Neglect of Interactive Technologies (EARN IT) Act, and the Strengthening Transparency and Obligation to Protect Children Suffering from Abuse and Mistreatment (STOP CSAM) Act.

"These bills purport to hold powerful companies accountable for their failure to protect children and other vulnerable communities from dangers on their services when, in reality, increasing censorship and weakening encryption would not only be ineffective at solving these concerns, it would in fact exacerbate them," said one of the experts, ACLU senior policy counsel Cody Venzke.

Named for a Kansas teenager who died after taking a pill laced with fentanyl, the Cooper Davis Act (S. 1080) would require social media companies and other communication service providers to give federal agencies information about illicit activity related to the synthetic opioid on their platforms.

The EARN IT Act (S. 1207)—which targets Section 230 of the Communications Decency Act—would remove tech companies' blanket liability protection for civil or criminal law violations related to online child sexual abuse material and establish a national commission to craft voluntary "best practices" for providers.

Sponsored by committee Chair Dick Durbin (D-Ill.), the STOP CSAM Act (S. 1199) would, among other provisions, enable survivors of online child sexual exploitation to bring a civil cause of action against tech companies that promoted or facilitated the abuse.

The ACLU warns that the proposals "would undermine free speech, privacy, and security." As the letter explains:

First, they incentivize platforms to monitor and censor their users' speech and interfere with content moderation decisions. Second, they disincentivize platforms from providing end-to-end encrypted communications services, exposing the public to abusive commercial and government surveillance practices and as a result, dissuading people from communicating with each other electronically about everything from healthcare decisions to business transactions. And third, they expand warrantless government access to private data. As longtime champions of privacy, free speech, and an open internet, we strongly urge you to vote against reporting these bills out of committee.

Despite the ACLU's argument that "there are other avenues to protect children, privacy, and safety online that do not lead to increased surveillance, censorship, and policing," the committee on Thursday unanimously advanced the EARN IT Act, spearheaded by Ranking Member Lindsey Graham (R-S.C.).

As Common Dreams reported Tuesday, the Center for Democracy & Technology led 132 other groups—including the ACLU—in a letter to the panel which says: "We support curbing the scourge of child exploitation online. However, EARN IT will instead make it harder for law enforcement to protect children. It will also result in online censorship that will disproportionately impact marginalized communities."

Fight for the Future, another signatory to that letter, tweeted Thursday that "the dangerous, anti-encryption #EARNITAct passed out of committee this morning. We know this bill—it's back from the dead to restrict the internet and make everyone less safe online."

The group also thanked Sen. Alex Padilla (D-Calif.) for entering the coalition's letter about the EARN IT Act into the record.

Representatives from the ACLU, Electronic Frontier Foundation, Equality Arizona, Fight for the Future, Reframe Health and Justice, and Woodhull Freedom Foundation came together with grassroots organizer Melissa Kadri and Sen. Ron Wyden (D-Ore.) on Wednesday for a press conference on some of the internet bills being considered by Congress.

Along with criticizing the EARN IT and STOP CSAM proposals, the event's speakers sounded the alarm about the Kids Online Safety Act (KOSA) and Restricting the Emergence of Security Threats that Risk Information and Communications Technology (RESTRICT) Act.

Specifically naming Bolivia, China, Cuba, Iran, North Korea, and Russia as "foreign adversaries," the RESTRICT Act (S. 686) would empower the U.S. Department of Commerce to "review, prevent, and mitigate information communications and technology transactions that pose undue risk to our national security."

KOSA, which was officially reintroduced on Tuesday, would increase parental controls, force social media platforms to prevent and mitigate certain harms to minors, and require independent audits.

"I'm a parent of a 12-year-old, and I care deeply about my 12-year-old's future. And for me, I want to ask not just what policies will make the internet more sanitized or safer for my child, but what policies governing the internet will lead to the type of world that I want my child to grow up in," said Fight for the Future director Evan Greer.

"That's a world where she has access to human rights, where she has access to accurate life-saving information about issues like mental health and substance abuse, and where she has access to online community," she continued. "And that is true for so many children, particularly LGBTQ kids who are facing unprecedented assaults across the country."

Citing Fred Rogers' philosophy that what can be mentioned can be managed, Greer added that "a lot of these bills are based on the idea that we protect our kids by sequestering them off from discussion of these important topics; unfortunately, we actually know from evidence and data that that harms our kids, and that our kids are safer when they are able to discuss... with their peers and with experts these issues that affect them. These bills would, unfortunately, cut kids off from those resources, and that's why we believe that they will make kids less safe, and not more safe."

Wyden agreed that "these bills are going to make kids less safe." Specifically, he expressed concern about EARN IT and STOP CSAM bills attacking "the single strongest technology protecting kids and families online," warning that "weakening encryption is probably the premier gift you could give to predators and god-awful people who want to stalk and spy on kids."

"I want to make one quick point about the Kids Online Safety Act: Giving extremist governors the power to decide what content is safe for kids is a nonstarter," he said, calling out the GOP leaders of Florida and Texas. "Ron DeSantis and Greg Abbott are using every bit of power they have to go after queer and trans kids, censor information about reproductive health, and scrub basic history about race in America. I'm not about to give them even more power... I urge my colleagues to focus on elements that are actually going to protect kids rather than just handing big quantities of more power to MAGA Republicans to wage a culture war against children."

"I think the most important thing Congress can do to improve the internet for kids and everybody else is to pass comprehensive privacy legislation," Wyden asserted. "This fight... has been the longest-running battle since the Trojan War, and it's time to take on the special interests and get a strong bill passed."