Section 230

Lindsey Graham's Terrible Anti-Privacy 'EARN IT' Act Passes Senate Committee

This isn't a bill about fighting child porn. Don't fall for it.

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Bad news for freedom lovers as we approach Independence Day weekend: A bill compromising online speech and privacy just passed unanimously in the Senate's Judiciary Committee.

The "Eliminating Abusive and Rampant Neglect of Interactive Technologies [EARN IT] Act of 2020" purports to fight the spread of child pornography online. Page after page of the bill references child pornography and online child sexual exploitation as its reason for existence.

But what it actually does is create a federal commission that devises "best practices" policies that tech companies are expected to follow. The original version of the bill threatened that those who do not would lose protections of Section 230 of the Communications Decency Act, the law that generally protects platforms from liability for content posted by users. Days before passage, the power of the commission was softened, but the amendments now raise the specter of state-level enforcement that could compromise user privacy and force platforms to censor.

This commission would have had enormous power over online communications. It could push speech platforms to engage in any number of practices, from implementing age verification systems to compromising encryption on the behalf of federal investigators, as long as it can find an argument that the rule would help fight child pornography. In the original version of the bill, platforms that don't "voluntarily" follow the guidelines proposed by this commission (and endorsed by the attorney general) would have lost important protections against lawsuits over content posted by third parties.

Section 230 has nothing to do with either hosting or spreading child pornography. It doesn't protect child porn on any site, and it doesn't protect sites that host said content. As I noted back when Sen. Lindsey Graham (R–S.C.) first introduced this legislation, online service providers are already obliged under another federal law to pass along any information they have about child sexual exploitation on their platforms.

But the point of the EARN IT Act isn't to fight child porn; it's to get the government more deeply involved in setting the terms for online communications. Small wonder that so many tech privacy and civil rights activists oppose this bill.

Here's the American Civil Liberties Union blasting the legislation: "It provides no assistance for prevention programs and makes no attempt to address the root causes of the problem. Rather than provide measured solutions that would protect children, the EARN IT Act instead needlessly threatens our privacy and online speech rights."

Tech Freedom and Americans for Prosperity teamed up to send a letter to the Senate Judiciary Committee noting the bill's many flaws. They warn that amendments to the bill have made its impacts even murkier, and they worry that it creates a new "moderator's dilemma," where a platform's operators aggressively overmoderate and censor content because they're afraid of the legal consequences if they do not.

If "it is too easy to put [interactive computer service] providers on 'notice' of potentially unlawful content, the fear of liability will create a 'heckler's veto' that could be used to take down specific content or disable particular accounts," they warn. "Research consistently shows that platforms exposed to such liability receive numerous false accusations, and often follow the path of least resistance by simply removing lawful speech."

There is a piece of good news about this bad bill. In response to concerns that the EARN IT Act would force tech platforms to create encryption "back doors" so federal investigators can bypass protections, Sen. Patrick Leahy (D–Vt.) introduced an amendment specifying that the implementation of end-to-end encryption does not count as a violation of these regulations and does not give rise to civil and criminal liability. The amendment was approved and added to the bill.

Subsequent amendments to the bill have also weakened the commission, so that it has less direct control and cannot so easily order platforms to comply. But a new problem was added to the bill in the process: It gives the states power to implement anti-encryption policies and to push for criminal and civil penalties without proving that platforms were "knowingly" distributing child pornography. They just have to show the platforms were "reckless," a lower threshold that will certainly encourage the moderator's dilemma.

This is a poisonous proposal. Child porn is not protected by Section 230 or any other federal law, and the EARN IT Act would do nothing to fight its spread. Don't fall for this bill.

This post has been updated to describe some additional late amendments to the EARN IT Act.

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  1. CNN: “Libertarians endorse child pornography”

    1. I don’t wanna say things about Graham and child p0rn.

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  2. “It provides no assistance for prevention programs and makes no attempt to address the root causes of the problem. Rather than provide measured solutions that would protect children, the EARN IT Act instead needlessly threatens our privacy and online speech rights.”

    That kind of sounds like they’d be OK with the threat to privacy if it addressed “root causes” and provided “measured solutions”

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  3. I sometimes blame the Founders and Framers for thinking future generations would be honorable and follow the spirit of the Constitution. Even their checks and balances rely on each branch never colluding with the other branches.

    In particular, the 4th amendment is quite obviously that right to privacy that Row v Wade relied upon, but which required fabrication out of, what was it, the shadows and penumbras? They didn’t dare admit it was already there because that would have up-ended all those carefully crafted loopholes which had taken two centuries of precious buildup.

    Constitutionality should require an additional test: let anyone file suit for unconstitutionality, tried by a jury of 12 random (no voir dire) sane adults, with their only decision being whether the damn law passes a strict smell test: does it give the government more power? Is it clear and understandable? Is it consistent with itself and other laws from the same jurisdiction? No appeals. If any of those 12 jurors can’t understand it, out it goes.

    And if it passes the smell test, then those jurors, using their own language, write down what they believe the law to do, what its consequences will be, what its boundaries are, and those have to be taken into consideration when the law is applied. The text matters, of course; but no expanding upon it in unexpected ways, no look into legislator’s intentions, no lawyerly quibbling. The law can do no more than what those 12 jurors have understood it to be. If the legislature is unhappy, they can repeal it and start over.

    1. Can I interest you in a citizen jury that audits bills before they get passed?

      Even having woke progressives arguing with the guns, god, and country crowd as a matter of policy might reinforce the idea that government power will eventually catch you in its sights.

      To rule and be ruled.

      1. Pre-eneactment would be an excellent idea, but it ought to be the final step, after passage by Congress and signing by the President. Otherwise it would be abused as focus groups, and I think citizens might be a little pissed at reviewing just legislation rather than being the last barrier before enactment.

        1. Still like the idea of a third house of congress, but essentially any means for the public to scrutinize, ask for clarification, and debate any bill before it reaches the president would work.

          And if a majority gives it thumbs down, it is vetoed.

          1. I have plenty of schemes. One of my ideas is that any legislator can introduce any bill; no committees, no seniority privileges, etc. But of course parties would have their own shadow committees and seniority and other rules, but legislators themselves are free to buck the party if they wish.

            Once introduced, bills have 30 days of public review, during which other legislators can approve it. Any revisions restart the 30 days. If, at the end of that 30 days, it has a majority (simple or 2/3, I don’t care) of approvals from each chamber, it has passed the legislature.

            I thought of allowing defect complaints from the public during this public review period. If the bill is approved without reconciling those defect complaints, and later trials declare those defects were valid, then every legislator who approved it is fired and can never again receive any government remuneration. This would include any government pension accrued from any government job.

            My other fantasies are that legislators proxy however many votes they received in the last election, with the top three winners all being elected. Every voter can submit their name as a volunteer legislator; one is picked at random and gets the same pay, etc, and proxies all the remaining votes. Whether these volunteers are in a separate chamber or thrown in with the top three winners is not important.

          2. A house of congress to act as the voice of the people? How would membership in such a house be decided? Perhaps every so many people in each state count as one vote? We can carve the nation up into districts with roughly equal population and then each district can elect a single member. And what to call it? Maybe a “House of Representatives”?

          3. @n00bdragon — too bad such a chamber doesn’t actually represent anybody except lobbyists.

            The primary advantage of a volunteer chamber is eliminating the political hack requirement to be elected. Sure, the volunteers might hunt for bribes. They might take the opportunity as a springboard to run for office. They might be as stupid and greedy as regular politicians.

            But some would not be, and the randomness would do a lot to upset professional politicians.

            1. “But some would not be”

              Highly unlikely. Those most likely to volunteer are those who desire power for power’s sake.

              The only way to prevent that is to make it so that the volunteer chamber doesn’t have the power to do much of anything. But then what is the point of it’s existence?

        2. And you’ll end up with a CNN-like town hall, gamed to have carefully selected and scripted questions, and only those, from “The People”.

          No thanks.

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  4. I know there are people on both sides of the aisle who are angry about how Google and Facebook are moderating content. I also disagree with their practices.

    However, if you are on the right and you think that the answer is to give the government the power to define acceptable moderation policies, you are in for a world of hurt. It took only 15 years for the left to turn powers granted in the Patriot act into a massive spying program that nearly took down the president. Do not give this power to government.

    1. However, if you are on the right and you think that the answer is to give the government the power to define acceptable moderation policies, you are in for a world of hurt. It took only 15 years for the left to turn powers granted in the Patriot act into a massive spying program that nearly took down the president. Do not give this power to government.

      This power was already given to the government. SCOTUS struck it all down except for one little section. And now that that section legal and idiots like Reason magazine have christened it a cornerstone of the internet, Congress is using it as a bargaining chip or a foot in the door.

      1. You really think that giving the government the ability to say what is “neutral” moderation in order to keep 230 protections will result in anything like the neutrality that you want?

        1. No, much better to just keep the status quo of using 230 to prop up your cronies and get them to censor for you

        2. Who said I want neutrality?

          Regardless, you said we shouldn’t give the government this power. That’s a misrepresentation. The government has this power because we/SCOTUS didn’t take it away (completely). It’s a Randian-esque secession of power through implied guilt. Apple, Google, FB, etc. should be pulling a Hank Rearden and telling the Gov’t that they can shove their protections. Instead, they’re lending legitimacy to the idea that the only reason free speech exists on the internet is because Congress deigns it so.

          And, again, if/since the 1A doesn’t offer any sort of protection or guarantee of equality or impartiality, then how/neither does section 230 and it’s useless.

  5. And it is crap like this that makes me squeamish over the whole red/blue drama playing out. Pick your flavor state encroachment.

    Where’s the coverage of Jo?

    1. Ha, reason covering a libertarian candidate… you’re kidding right?

    2. Jo who?

      I look forward to when Reason publishes their collection of endorsements from all the contributing writers and it’s 100% Biden down the line…

    3. Need moar Bill Weld

    4. QSL – I agree that I’d like more coverage of Jo J. However, what is she doing to earn any coverage other than NOT being Trump or Biden? Granted, that position should be her primary platform, IMO.

      If there was ever an election where the Libertarian party could make headway, it’s this election. 2 senile, old, white men that are spending money like drunken sailors. GOP not backing the end of QI. Dems forcing everybody to wear a mask and lose their businesses.

      The Libertarian party needs to get a solid, simple platform create and get the message into the public. That requires raising some money. There just doesn’t seem to be a serious group of people or there is a serious lack of money. Or both.

  6. this piece of shit can’t retire fast enough

  7. No chemjeff child porn comments? I’m very disappointed in you people.

    1. I thought that the topic would automatically summon him.

  8. 1. The first three words of the title were enough.
    2. As always, Mr. Phelps, vote against EVERY bill with a cutesy acronym for a title.
    3. Well, you know the rest

  9. Leave it to the Commies at the ACLU to defend the tree jumpers! We brought this on ourselves, with our torrid, callous porn-o addictions and our spiteful anti-government tirades and hateful barrages of threatening words. These days, everything is different. Speech IS violence. Freedom is but a costly luxury we can ill-afford. If we didn’t run our mouths like drunken anarchist sailors, it wouldn’t be necessary to correct us!

    Thankfully, Senator Graham is a great patriot whom the Lord saw fit to anoint a savior of children. Even though the dumbocrats (dim-bulb-crats?) are trying to hamstring him in his mission to protect our children, he won’t back down! He has God’s vote and he earned our vote, fair and square. Right? Well, we sent him to DC to hold us to account, so I’m not sure why anyone is surprised by his demand that we EARN IT our privilege of free speech. It’s only right.

    1. Sarcasm? Or are you doing your OBL impersonation?

  10. Section 230 has nothing to do with either hosting or spreading child pornography. It doesn’t protect child porn on any site, and it doesn’t protect sites that host said content. As I noted back when Sen. Lindsey Graham (R–S.C.) first introduced this legislation,

    Sen. Patrick Leahy (D–Vt.) introduced an amendment specifying that the implementation of end-to-end encryption does not count as a violation of these regulations and does not give rise to civil and criminal liability. The amendment was approved and added to the bill.
    And you think there are two parties in Washington DC. No, there is one bickering party working together to take away your rights, your money, and your freedom.

    1. Google currently isn’t liable when people use their services to store and distribute child porn. If not Section 230, what protects them?

      1. If you put child porn in a safe deposit box, is the bank liable? Should it be?

        Why should Google even know what you store using their services? It would be really creepy if they did.

  11. Why no tribute to Hugh Downs, a long-time libertarian?

  12. For all those Libertarians out there who are still voting Republican.

    1. You honestly think Democrats won’t really vote for this? You don’t know your history very well.

      And Libertarians don’t win public office, so that’s a waste of a vote.

    2. FYI – “passed unanimously in the Senate’s Judiciary Committee.” That included Democrats…

  13. Republicans scream about democrats control, but it is merely deflection. They want to impose their beliefs on us all.

  14. It’s outrageous that people put locks on their doors and curtains over their windows. Who knows what kind of illegal activities they’re involved in at home? What do they have to hide?

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  16. I’m hoping that all these laws will make operating commercial, ad supported platforms impossible.

  17. Lindsey Graham – WHAT A DICK!!!

  18. Like we have any fucking say about it in our socialist utopia.

  19. I wonder as to the following. Is there actually a national problem with “child pornography”, or is the a fore mentioned simply a “hook” on which the virulent We Know Best, Obey Us Without Question types currently hang their flea bitten cloaks.

  20. I “emailed” my senators from the EFF site (the default template to be fair) to include Lindsey Graham, and a day later, I got the exact same auto-responder message from every senator with templated letterhead per Senator. Cute.

    I sent a “more colorful” email directly to Lindsey via his website contact form, and I haven’t even heard so much as his auto-responder back since, that was a week ago!

    Also @reason.com staff your show comments button hides the comments, and vice versa, and comments are shown by default.

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