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133 Rights Groups Warn EARN IT Act Threatens Online Privacy and Free Speech
"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."
May 02, 2023
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.
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Senate Urged to 'Stand Up to Homophobic Attacks' on Biden FCC Nominee Gigi Sohn
"Homophobic and sexist fearmongering should have no place in the consideration of Gigi's qualifications," one coalition wrote to Senate leaders. "It's morally corrupt and antithetical to the high virtue of the chamber."
Feb 06, 2023
Digital and LGBTQ+ rights groups are condemning homophobic attacks against U.S. President Joe Biden's Federal Communications Commission nominee Gigi Sohn, whose Senate confirmation has been stalled for over a year largely due to opposition from the powerful telecom industry.
The LGBTQ Victory Institute and 21 other organizations sent a letter Monday to Senate Majority Leader Chuck Schumer (D-N.Y.), Minority Leader Mitch McConnell (R-Ky.), and the chair and ranking member of the Committee on Commerce, Science, and Transportation, Sens. Maria Cantwell (D-Wash.) and Ted Cruz (R-Texas), respectively.
Noting that Biden first nominated Sohn to the FCC in October 2021 and has continued to support her—formally renominating the candidate last month—the groups wrote that "we share the administration's view that Gigi is the right leader for this role given her extensive qualifications, superior leadership qualities, and deep technical background."
"Gigi is the right leader for this role given her extensive qualifications, superior leadership qualities, and deep technical background."
"Gigi is one of the nation's leading public advocates for open, affordable, and democratic communications networks. She demonstrated her dedication to ensuring that every American household has affordable and robust broadband internet for 30 years," they pointed out, while also stressing the necessity of a "fully functioning FCC."
The letter highlights that "Gigi's nomination has recently come under attack, not on the basis of qualifications or substance, but because she is openly LGBTQ+. Her barrier-breaking nomination as the first LGBTQ+ nominee to the FCC is being met with homophobic tropes and attacks, against herself and her family, in an attempt to stall her nomination. That cannot stand."
"Homophobic and sexist fearmongering should have no place in the consideration of Gigi's qualifications. It's morally corrupt and antithetical to the high virtue of the chamber," the letter concludes. "We call upon every member of the Senate to condemn homophobia and sexism and consider Gigi's nomination on its merits. We urge members to confirm Ms. Sohn to the seat she is so qualified for without delay."
The letter followed an opinion piece published Thursday by Fast Company, in which Fight for the Future director Evan Greer and National Digital Inclusion Alliance communications director Yvette Scorse called on both Biden and Senate Democrats to "stand up to homophobic attacks" on Sohn.
\u201cBiden and Democrats must stand up to homophobic attacks on FCC nominee\u2014 a) basic decency & b) or else they\u2019ll basically doom every other LGBTQ+ candidate down the road. COME ON. by \u2066@evan_greer\u2069 https://t.co/CLJbtV4y2B\u201d— Rabbi Danya Ruttenberg (@Rabbi Danya Ruttenberg) 1675698372
The pair explained that Sohn first endured the telecommunication industry's smear campaign—and now, "right-wing news outlets, emboldened by the internet service provider-funded smears, have crossed the line: They've launched a new round of blatantly homophobic attacks on Gigi that recycle QAnon and extreme right tropes conflating LGBTQ identity with deviance and predation."
As Greer and Scorse detailed:
Fox News, The Daily Mail, Breitbart, and other outlets have run nearly identical stories claiming that Gigi has "opposed" efforts to combat sex trafficking. Even these news outlets, who play fast and loose with the truth, have a hard time backing up that headline. Their argument is that Gigi sits on the board of the Electronic Frontier Foundation (EFF), a highly respected digital rights organization known for fighting to defend free speech and privacy online, and EFF opposes SESTA/FOSTA, legislation passed in 2018 that claimed to address sex trafficking. The rest of the articles go to melt down over the fact that EFF once gave an award to a consensual adult dominatrix for her advocacy work around issues of online free speech and human rights, as if that somehow implicates Gigi in some sort of scandal.
Here's the thing: EFF isn't the only group that opposes SESTA/FOSTA. The legislation has been condemned by almost every major human rights organization in the world including the ACLU, Human Rights Campaign, and the Wikimedia Foundation, because it has actually made it harder for the government to curtail online sex trafficking, while having devastating effects on online free speech and marginalized communities. A report issued by the U.S. government itself indicated that the law has not been useful in aiding prosecutions, and has almost never been used. Insinuating that opposition to SESTA/FOSTA somehow means support for sex trafficking is absurd on its face. Many anti-trafficking organizations also oppose the law, saying it hurts more than it helps. Even the Trump administration's Department of Justice agreed that the law was undermining their efforts to combat trafficking.
But none of that matters, because the FCC has absolutely no jurisdiction in this area whatsoever. Gigi has never taken a position on SESTA/FOSTA or any similar legislation, and EFF opposed SESTA/FOSTA long before Gigi became a board member. None of this is remotely relevant to Gigi's candidacy for a position at the FCC, the agency that oversees phone and cable companies.
The pair added that "we don't expect any better of Fox News pundits who want to block Gigi's appointment. But we are appalled by the complicit silence of the White House and Senate Democrats."
\u201cNotably, the LA Times here also eviscerates the idea that opposing SESTA/FOSTA makes you "pro sex trafficking" and thoroughly explains why SESTA/FOSTA was an utter failure, citing the excellent research of advocates like @MistressBlunt. Just embarrassing for the bigots & trolls.\u201d— Evan Greer is on Mastodon (@Evan Greer is on Mastodon) 1675435865
Their article came a day after Fight for the Future and Demand Progress launched a petition that similarly outlined recent attacks on Sohn, urged Biden and Senate Democrats to stop being "shamefully silent," and warned that "if they don't speak up now and condemn these attacks, this will become a go-to strategy for bigots looking to sink any LGBTQ person's nomination."
In a statement announcing the petition, Demand Progress communications director Maria Langholz said that "we're now closer to the end of President Biden's first term than we are to the beginning. These past two years, Democrats have controlled both the White House and Senate, yet the FCC remains without its fifth and final commissioner. The public is being failed."
Langholz emphasized that "in the absence of action, the FCC will stay deadlocked and the public will suffer the consequences" while "unhinged and discredited attacks on Ms. Sohn will continue to percolate in this vacuum."
“These attacks are as baseless as they are dangerous, and underscore more than ever the time is now for Senate leadership to end this delay," she added. "The Senate must reject the cynical and hate-filled politics the public has grown so tired of, and get to the actual work of governing by finally confirming Gigi Sohn to the FCC."Keep ReadingShow Less
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