from the don’t-let-them dept

Senator Lindsey Graham very badly wants to push the extremely dangerous EARN IT Act across the finish line. He’s up for re-election this fall, and wants to burnish his “I took on big tech” creds, and sees EARN IT as his path to grandstanding glory. Never mind the damage it will do to basically every one. While the bill was radically changed via his manager’s amendment last month, it’s still an utter disaster that puts basically everything we hold dear about the internet at risk. It will allow for some attacks on encryption and (somewhat bizarrely) will push other services to more fully encrypt. For those that don’t do that, there will still be new limitations on Section 230 protections and, very dangerously, it will create strong incentives for internet companies to collect more personal information about every one of their users to make sure they’re complying with the law.

It’s a weird way to “attack” the power of big tech by forcing them to collect and store more of your private info. But, hey, it’s not about what’s actually in the bill. It’s about whatever bullshit narrative Graham and others know the press will say is in the bill.

Either way, we’ve heard that Graham and his bi-partisan supporter for EARN IT, Senator Richard Blumenthal, are looking to rush EARN IT through with no debate, via a process known as hotlining. Basically, it’s a way to try to get around any floor debate, by asking every Senator’s office (by email, apparently!) if they would object to a call for unanimous consent. If no Senator objects, then they basically know they can skip debate and get the bill approved. If Senators object, then (behind the scenes) others can start to lean on (or horse trade) with the Senators to get the objections to go away without it all having to happen on the floor of the Senate. In other words, Graham and Blumenthal are recognizing that they probably can’t “earn” the EARN IT Act if it has to go through the official process to have it debated and voted on on the floor, and instead are looking to sneak it through when no one’s looking.

While Senator Wyden (once again) has said he’ll do whatever he can to to block this, it would help if other Senators would stand up as well. Here’s what Wyden had to say about it:

The EARN IT Act will not protect children. It will not stop the
spread of child sexual abuse material, nor target the monsters who
produce and share it, and it will not help the victims of these evil
crimes. What it will do is threaten the free speech, privacy, and
security of every single American. This is because, at its core, the
amended EARN IT Act magnifies the failures of the Stop Enabling Sex
Traffickers Act–SESTA–and its House companion, the Fight Online Sex
Trafficking Act–FOSTA. Experts believe that SESTA/FOSTA has done
nothing to help victims or stop sex trafficking, while creating
collateral damage for marginalized communities and the speech of all
Americans. A lawsuit challenging the constitutionality of FOSTA on
First Amendment grounds is proceeding through the courts, and there is
bicameral Federal legislation to study the widespread negative impacts
of the bill on marginalized groups.

Yet, the authors of the EARN IT Act decided to take this kind of
carveout and expand it further to State civil and criminal statutes. By
allowing any individual State to set laws for internet content, this
bill would create massive uncertainty, both for strong encryption and
constitutionally protected speech online. What is worse, the flood of
State laws that could potentially arise under the EARN IT Act raises
strong Fourth Amendment concerns, meaning that any CSAM evidence
collected could be rendered inadmissible in court and accused CSAM
offenders could get off scot-free. This is not a risk that I am willing
to take.

Let me be clear: The proliferation of these heinous crimes against
children is a serious problem. However, for these reasons and more, the
EARN IT Act is not the solution. Moreover, it ignores what Congress can
and should be doing to combat this heinous crime. The U.S. has a number
of important evidence-based programs in existence that are proven to
keep kids safe, and they are in desperate need of funding to do their
good work. Yet the EARN IT Act doesn’t include a single dollar of
funding for these important programs. It is time for the U.S.
Government to spend the funds necessary to save children’s lives now.

While a Wyden hold would block any attempt to get unanimous consent via the hotlining process, it would help quite a lot if other Senators were willing to speak up and stand with him as well. If it’s just Wyden, then he’ll face tremendous pressure to remove the hold. If more Senators join Wyden in saying this isn’t okay, then Graham and Blumenthal will realize they have a bigger challenge in front of them.

Again, if you haven’t been following this debate closely, everything that Wyden says above is accurate. EARN IT is an attack on both free speech and privacy (a twofer) without doing anything to actually deal with the problem of child sexual abuse material online. That is very much a law enforcement issue, and it’s one which Congress has failed to provide the funds to law enforcement that it promised on this issue, and (even worse) the DOJ has simply ignored its requirement mandates to deal with this issue as required by Congress. The DOJ seems more focused on attacking tech companies and blaming them for its own failure to do its job.

The EARN IT Act is an incredibly dangerous piece of legislation, but it’s also a complicated one — one that many people don’t understand. But Senators see something that says “protect the children” and they immediately think “well, of course we support that.” But this bill doesn’t protect children. It attacks free speech and privacy online in very insidious ways. Please call your Senators and ask them not to let this through.

Filed Under: debate, earn it, earn it act, encryption, free speech, lindsey graham, privacy, richard blumenthal, section 230, senate

Categories: Technology