Senate Bill Challenges Online Encryption, Constitutional Rights to Speech and Privacy

A Senate bill, the EARN IT Act of 2020, introduced by Lindsey Graham (R-SC) and Richard Blumenthal (D-CT) in March 2020, appears to revise regulations aimed at preventing online sexual exploitation of children by establishing a national commission to guide online service providers, such as Facebook and Twitter, in preventing child pornography and trafficking. However, as the Electronic Frontier Foundation and others reported, if the EARN IT Act becomes law, it would significantly undermine encryption of online messages, providing law enforcement agencies and government officials with legal access to online content. Although the bill does not use the term “encryption,” it would expose online service providers to “potentially crushing legal liability” if they refused to follow government officials’ orders to break encryption, Sophia Cope, Aaron Mackey, and Andrew Crocker reported for the Electronic Frontier Foundation (EFF). Their report also highlighted how the EARN IT Act would violate constitutionally-protected rights to free speech and privacy.

The bill’s title—an acronym for Eliminating Abusive and Rampant Neglect of Interactive Technologies—refers to a legal shield that protects online service providers from liability for content posted by the users of their sites, which was established by Section 230 of the 1996 Communications Decency Act. The bill’s aim, according to its sponsors and supporters, is to make online service providers “earn” their immunity from liability claims over child sex abuse material.

But, as Riana Pfefferkorn wrote in a blog post for the Center for Internet and Society, the EARN IT Act is “a bait-and-switch,” a way to ban end-to-end encryption “without actually banning it.”

End-to-end encryption is generally regarded as safer than other forms of encryption, in part because it reduces the number of parties who might be able to interfere with or break the encryption.

Cope, Mackey, and Crocker’s EFF report detailed a number of constitutional pitfalls set by the proposed bill.  For example, the “best practices” established by the oversight commission would amount to “an impermissible regulation of editorial activity protected by the First Amendment,” while the act also violates the Fourth Amendment by “turning online platforms into government actors that search users’ accounts without a warrant based on probable cause.”

In response to the legislation, exiled US whistleblower Edward Snowden tweeted, “The government is attempting to exploit anger at tech companies to pass a law that intentionally undermines digital security and censors speech,” Jessica Corbett reported for Common Dreams.

As of April 5, 2020, the bill is under review in committee, and it has received minimal corporate news coverage. A ProQuest search for relevant stories identified just one article by the New York Times and a single blog post by the Washington Post on the topic, for example.

The New York Times article (which appeared inconspicuously on page B7 of the newspaper’s March 6, 2020 print edition) featured a number of quoted sources who expressed support for the legislation, including its two Congressional sponsors, the general counsel for the National Center for Missing and Exploited Children, and a technology policy analyst for a financial services firm, who told the Times, “With Graham and Blumenthal leading the charge,” the bill is “as well positioned as I could imagine.” But the newspaper’s report quoted only two skeptics, both representatives of a lobbying group, the Internet Association, whose members include Amazon, Facebook, and Google. And, despite those opponents’ “very strong concerns” regarding the bill, the New York Times article made no mention of the First and Fourth Amendment issues raised by the Electronic Frontier Foundation and in other independent news coverage of the legislation.

A search of the TV News Archive found that, except for CSPAN2’s coverage of the March 30, 2020 Senate Judiciary Committee hearing on tech industry online child sexual exploitation, the only TV news coverage of the EARN IT Act has been provided by RT. The EARN IT Act appears to have received no coverage by any of the major network or cable TV news outlets.

Sources:

Sophia Cope, Aaron Mackey, and Andrew Crocker, “The EARN IT Act Violates the Constitution,” Electronic Frontier Foundation, March 31, 2020, https://www.eff.org/deeplinks/2020/03/earn-it-act-violates-constitution.

Jessica Corbett, “Senate Committee Takes Up EARN IT Act Decried by Rights Advocates as ‘Sneak Attack on Encryption,’” Common Dreams, March 11, 2020, https://www.commondreams.org/news/2020/03/11/senate-committee-takes-earn-it-act-decried-rights-advocates-sneak-attack-encryption.

Lily Hay Newman, “The EARN IT Act Is a Sneak Attack on Encryption,” Wired, March 5, 2020, https://www.wired.com/story/earn-it-act-sneak-attack-on-encryption/.

Student Researcher: Veronica Vasquez (Diablo Valley College)

Community Evaluator: April Anderson (Macalester College)