Oppose the EARN IT Act

Oppose the EARN IT Act

A new bi-partisan effort to attack speech online has been introduced in Congress. If passed, the EARN IT Act could change how we interact with online services in a very negative way.

The ability of platforms like Facebook, reddit, Twitter and so many others to provide places for us to create content hinges on a little-known law that’s under attack. Section 230 of the Communications Decency Act of 1996 simply says that the content you post online is your responsibility: you can be held liable for it, not the platform that you published it on. It makes sense – otherwise, every website with comments would have to moderate them or be held criminally responsible for their content. This wouldn’t apply just to the big platforms listed above.

The EARN IT Act would change how Section 230 is applied in the real world. It could shut down all but the very largest social networks and platforms.

Like other laws and proposals before it, the EARN IT act claims to be about child exploitation imagery (CEI). It would create a “National Commission on Child Exploitation Prevention,” which would include on it Attorney General William Barr among others. The commission would put forward “best practices for providers of interactive computer services regarding the prevention of online child exploitation conduct.” From most commissions, these would be recommendations – but the NCECP’s suggestions would have the force of law, as the EFF points out, “Platforms that failed to adhere to them would be striped of their Section 230 protections” if accused of hosting CEI. And the Attorney General could just throw out the Commission’s recommendations and go ahead with his own if he disagrees.

Barr – and the US – vs Encryption

Barr is well-known as an outspoken opponent of privacy rights. In his first tenure as Attorney General in the 1990s, he enabled the DEA to wiretap countless phones in the fraudulent “war on drugs.”

Barr is also an enemy of encryption. In 2019, Barr effectively called for the criminalization of advanced encryption methods and for tech companies to give law enforcement ways around encryption.

“By enabling dangerous criminals to cloak their communications and activities behind an essentially impenetrable digital shield, the deployment of warrant-proof encryption is already imposing huge costs on society”

– William Barr

That “impenetrable digital shield” is what we all rely on to secure our communications. It’s one of the most basic building blocks of secure communications. You’re looking at this website over an encrypted connection, so no one else on your WiFi can see what page you’re on or what the content says. When you send an iMessage or Signal message, that’s an encrypted connection, too. Encryption helps guarantee that only you and the other person (or website) involved can see the conversation you’re having.

Barr made veiled reference to, but never explicitly mentioned, Apple. In 2016, the Justice Department publicly went head-to-head with the company over the phone of the San Bernadino shooter. The FBI wanted Apple to unlock the shooter’s phone. The design of the iPhone makes that practically impossible. Apple responded with a public “open letter” defending itself; the FBI threatened to go to court. Ultimately, it’s believed that an Israeli firm was able to crack the phone, so the case was never concluded.

It’s not really about protecting kids

What would likely come out of the Commission, especially with Barr at the helm, would be an attack on us all. Barr wants to make encryption so weak that it doesn’t actually protect from all but the most casual attackers. The national security state already works day and night to break encryption and gather data. Could this be a sign that stronger encryption combined with ever-growing massive amounts of data are getting to be too much for them. Maybe.

It should go without saying that CEI is disgusting and the people who create and trade in it are despicable. It needs to be stopped, but the EARN IT Act is couched in this language to make it difficult or impossible to oppose. There is a deeply emotional context to the discussion that will be taken advantage of by the proponents. One will be accused of defending child predators when we are in fact defending the rights of all of us to communicate securely.

As Matthew Green says, “It’s the kind of bill you’d come up with if you knew the thing you wanted to do was unconstitutional and highly unpopular, and you basically didn’t care.”

And we know that spying on the people – violating our 4th Amendment rights – is massively unpopular.

The EARN IT Act is a bipartisan attack on civil liberties. It’s sponsored by Lindsey Graham (R-SC), Richard Blumenthal (D-CT), Josh Hawley (R-MO), Dianne Feinstein (D-CA) and also co-sponsored by Kevin Cramer (R-ND), Doug Jones (D-AL) Joni Ernst (R-IA), Bob Casey (D-PA), Sheldon Whitehouse (D-RI), and Dick Durbin (D-IL). People of all parties must stand up to Congress and oppose the EARN IT Act for what it is – an attack on civil liberties.