A weakened version of the EARN IT Act advances out of committee

A weakened version of the EARN IT Act advances out of committee

On Thursday, the Senate Judiciary Committee voted to approve a bill that would weaken Section 230 protections to ensure social media companies remove child abuse imagery from their platforms.

Introduced in March by Sens. Lindsey Graham (R-SC) and Richard Blumenthal (D-CT), the EARN IT Act is intended to curb the spread of child abuse images on social media, but has undergone a number of significant changes on its way to a full Senate vote. The version that emerged from the committee today follows the legislative framework of FOSTA, or the Fight Online Sex Trafficking Act, from 2018. While FOSTA created a carve-out in Section 230 for online conduct that “promotes or facilitates prostitution,” EARN IT would create a similar carve-out for child abuse imagery online.

That is significantly milder than earlier versions of the bill, which would have presented immense new risks for platforms like Facebook and YouTube. Early versions of EARN IT took aim at platform protections under Section 230 of the Communications Decency Act, threatening to revoke the protections for specific platforms if they did not meet third-party standards for the handling of child abuse imagery. It was met with skepticism from tech companies and trade organizations that feared the measure was an attack on encryption due largely in part to language that could give law enforcement access to users’ private conversations.

Shortly before the bill was taken up in committee, Graham filed an amendment that addressed many of those concerns, but critics are not entirely won over. The bill still pokes holes in Section 230 and allows states to sue tech companies based on a variety of state laws.

“This bill could irrevocably harm the very free speech protections that enable the internet to be the most powerful communications tool in history and to serve as a primary means of commerce for countless American small business,” Billy Easley, senior tech policy analyst for Americans for Prosperity, said in a statement Thursday.

But throughout Thursday’s hearing, lawmakers suggested that the EARN IT Act was not a sneaky attempt to weaken encryption on platforms. “This bill is not about encryption and it never will be,” Blumenthal, a co-sponsor, said Thursday. Graham also said that his “goal here is not to outlaw encryption … that will be a debate for another day.” The new version of the bill voted on Thursday weakens language that could force companies to create encryption backdoors for law enforcement. Sen. Patrick Leahy (D-VT) filed an amendment to the bill that would “exclude encryption” as something that could heighten liability for platforms. It was approved and incorporated into the measure that now faces a floor vote.

The new version of the “EARN IT Act replaces one set of problems with another by opening the door to an unpredictable and inconsistent set of standards under state laws that pose many of the same risks to strong encryption,” Mike Lemon, senior director and federal government affairs counsel for the Internet Association, said in a statement Thursday.

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