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While these bills' supporters aim to hold tech giants accountable for not protecting vulnerable communities, one expert warned, "increasing censorship and weakening encryption would not only be ineffective at solving these concerns, it would in fact exacerbate them."
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.
\u201cThe EARN IT Act claims to make the Internet safer for children, but instead invites constant government surveillance.\n\nThis is a big threat to our privacy and our right to free speech online \u2014 we can't let it pass.https://t.co/vETVy5jZGC\u201d— ACLU (@ACLU) 1683223921
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.
\u201cThe Kids Online Safety Act would require surveillance of anyone 16 and under on social media, and would put the tools of censorship in the hands of state attorneys general. If it passes, adults too will likely face hurdles to accessing legal content online.https://t.co/J5hSGVIcqB\u201d— EFF (@EFF) 1683211560
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."
\u201c"When bad things don\u2019t happen, there is no news. This is the paradox of encryption. Because it\u2019s impossible to count \u201cprevented harms,\u201d we can\u2019t put a number on the vast number of children encryption has protected. But we know that it does."\u201d— Dr. Joseph Lorenzo Hall (@Dr. Joseph Lorenzo Hall) 1683159447
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."
"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."
As U.S. lawmakers renew efforts to pass a bipartisan bill intended to combat sexual exploitation of children online, 11 dozen advocacy groups argued Tuesday that the federal legislation would actually not only fall short in its mission but also endanger digital privacy and free expression.
U.S. Sens. Lindsey Graham (R-S.C.), Marsha Blackburn (R-Tenn.), and Richard Blumenthal (D-Conn.) along with Reps. Ann Wagner (R-Mo.) and Sylvia Garcia (D-Texas) last week reintroduced the Eliminating Abusive and Rampant Neglect of Interactive Technologies (EARN IT) Act.
The EARN IT Act (S. 1207/H.R. 2732) takes aim at Section 230 of the Communications Decency Act, which states that "no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."
The controversial bill would remove that blanket liability protection for civil or criminal law violations related to online child sexual abuse material (CSAM) and establish a national commission—filled with members of federal agencies, law enforcement, and survivor groups as well as legal and technical experts—to craft voluntary "best practices" for providers.
"EARN IT will jeopardize access to encrypted services, undermining a critical foundation of security, confidentiality, and safety on the internet."
In their Tuesday letter to the Senate Judiciary Committee, 133 groups led by the Center for Democracy & Technology wrote: "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."
"In addition, EARN IT will jeopardize access to encrypted services, undermining a critical foundation of security, confidentiality, and safety on the internet," they continued. "Dozens of organizations and experts have repeatedly warned this committee of these risks when this bill has been previously considered, and those same risks remain. We urge you to oppose this bill."
The letter—also signed by Access Now, ACLU, Amnesty International USA, Demand Progress, Electronic Frontier Foundation (EFF), Fight for the Future, Free Press Action, GLAAD, Human Rights Campaign, PEN America, Public Knowledge, Transgender Law Center, Tor Project, Wikimedia Foundation, and more—lays out the groups' critiques in detail.
"Section 230's liability shield applies to smaller and start-up companies that are interactive computer service providers, not just a handful of large companies like Google and Meta," the letter stresses. "By opening providers up to significantly expanded liability, the bill would make it far riskier for platforms to host user-generated content," which could cause providers to stop hosting such content altogether or engage in "overbroad censorship" that removes constitutionally protected material.
\u201cToday, we\u2019re joining 130+ LGBTQ+ & other human rights orgs in a coalition urging Congress to oppose the latest iteration of the flawed #EarnItAct. It strongly threatens encryption & free speech while making it harder to protect children from online abuse. \nhttps://t.co/b3j2n6YcfZ\u201d— Woodhull Freedom Foundation (@Woodhull Freedom Foundation) 1683052950
"These wide-ranging removals of online speech will negatively impact diverse communities in particular, including LGBTQ people, whose posts are disproportionately labeled erroneously as sexually explicit," the rights organizations warned, pointing to lessons learned from the anti-trafficking law widely known as SESTA/FOSTA.
SESTA/FOSTA "has forced sex workers—whether voluntarily engaging in sex work or forced into sex trafficking against their will—offline and into harm's way," the groups noted, citing federal research. The law has also "chilled their online expression," and all of "these burdens have fallen most heavily on smaller platforms that either served as allies and created spaces for the LGBTQ and sex worker communities or simply could not withstand the legal risks and compliance costs."
In addition to putting online free expression at risk, the EARN IT Act would disincentivize end-to-end encryption, which "ensures the privacy and security of sensitive communications by making certain that only the sender and receiver can view them," the groups highlighted. "Billions of people worldwide rely on encryption to secure their daily activities online, from web browsing to online banking to communicating with friends and family."
"Everyone who communicates with others on the internet should be able to do so privately. However, this security is especially relied upon by journalists, Congress, the military, domestic violence survivors, union organizers, immigrants, and anyone who seeks to keep their communications secure from malicious hackers," the letter says, emphasizing that abortion patients also rely on the technology, especially since last year's U.S. Supreme Court decision and subsequent state laws restricting reproductive rights.
Though the EARN IT Act is backed by various groups that work to prevent the exploitation of children, the letter makes the case that the bill "risks undermining child abuse prosecutions by transforming providers into agents of the government for purposes of the Fourth Amendment," explaining:
If a state law has the effect of compelling providers to monitor or filter their users' content so it can be turned over to the government for criminal prosecution, the provider becomes an agent of the government, and any CSAM it finds could become the fruit of an unconstitutional warrantless search. In that case, the CSAM would properly be suppressed as evidence in a prosecution and the purveyor of it could go free. At least two state laws—those of Illinois and South Carolina—would have that effect.
Rather than passing Graham and Wagner's bill, the letter asserts, "Congress should instead consider more tailored approaches to deal with the real harms of CSAM online, and it should commit to conducting a full, independent internet impact assessment to identify potential harm likely to result from any internet-related legislation, such as harms to users' freedom of expression and privacy, before the legislation is voted upon."
The rights groups' alarm over the EARN IT Act comes amid debates over other thematically related proposals such as the Kids Online Safety Act (KOSA), which is supported by some advocates for children's rights, health, and privacy but opposed by some signatories to Tuesday's letter, including the ACLU, EFF, and Fight for the Future.
Advocacy groups critical of KOSA, the EARN IT Act, and the STOP CSAM Act—who say that "unfortunately, all three bills have many of the same problems"—plan to hold a press conference about the legislation on Wednesday afternoon with Sen. Ron Wyden (D-Ore.).
This post has been updated to reflect there are 133 coalition members including the Center for Democracy & Technology.