Like FOSTA-SESTA, this proposed bill chips away at the protections offered by Communications Decency Act section 230 under the guise of stopping human trafficking.
Members of Congress have mounted a major threat to your freedom of speech and privacy online. Senators Lindsey Graham (R-SC) and Richard Blumenthal (D-CT) recently introduced a bill that would undermine key protections for Internet speech in U.S. law. It would also expose providers of the private messaging services we all rely on to serious legal risk, potentially forcing them to undermine their tools’ security.
The so-called EARN IT Act (S. 3398) is an attack on speech, security, and innovation. Congress must reject it.
The bill deals with the very serious issue of child exploitation online, but it offers no meaningful solutions. It doesn’t help organizations that support victims. It doesn’t equip law enforcement agencies with resources to investigate claims of child exploitation or training in how to use online platforms to catch perpetrators. Rather, the bill’s authors have shrewdly used defending children as the pretense for an attack on our free speech and security online.
The Graham-Blumenthal EARN IT Act would create a “National Commission on Online Child Sexual Exploitation Prevention” tasked with developing “best practices” for owners of Internet platforms to “prevent, reduce, and respond” to child exploitation online. But far from mere recommendations, those “best practices” would essentially become legal requirements: if a platform failed to adhere to them, it would lose essential legal protections for free speech.
Once the Commission completed its recommendations, the Attorney General, the Secretary of Homeland Security, and the Chair of the Federal Trade Commission would approve or veto the best practices. If they all agreed, then Congress would have an extremely short timeline to debate the best practices and write them into law without amendments.
The EARN IT Act Would Censor Innocent People
The Graham-Blumenthal bill undermines Section 230, the most important law protecting free speech online. Section 230 enforces the common-sense principle that if you say something illegal online, you should be the one held responsible, not the website or platform where you said it (with some important exceptions).
Section 230 has played a critical role in the development of the modern Internet. Thanks to Section 230, online platforms can allow users to share your thoughts without fear that something they say could cost them millions of dollars or even jail time. In weakening Section 230, Congress risks forcing platforms to kick innocent people off of the Internet entirely—as has already happened with the disastrous consequences of SESTA/FOSTA. When platforms are forced to become more restrictive in what they allow on their sites, marginalized users are disproportionately silenced.
The EARN IT Act would give platforms two choices: either adhere to the Commission’s recommended “best practices” or be ready to convince a judge that it “has implemented reasonable measures” relating to preventing online child exploitation. In practice, that means that if a platform didn’t adhere to the best practices, it would be extremely difficult and costly for an Internet company to have a case relating to child exploitation dismissed under Section 230.
The Graham-Blumenthal EARN IT Act doesn’t just undermine Section 230; it also violates the First Amendment rights of both platforms and their users. As EFF explained in a letter to Congress, the EARN IT Act seeks to regulate how platforms manage online speech, yet Internet platforms’ editorial activities are protected from government interference by the First Amendment. Additionally, to pass constitutional scrutiny, a law that regulates the content of speech must be as narrowly tailored as possible to avoid chilling legitimate speech. But the EARN IT Act isn’t narrowly tailored at all: as we explain in our letter, it would inevitably lead platforms to become more restrictive in the types of speech they allow, particularly in their approach to sexual speech, silencing innocent users in the process.
