The EARN IT Act: "A Sneaky Attempt to End Encryption"

From Casey Newton's 3-12-20 The Verge article entitled "A Sneaky Attempt to End Encryption Is Worming Its Way Through Congress":

One risk of having the world pay attention to a single, all-consuming story is that less important but still urgent stories are missed along the way. One such unfolding story in our domain is the (deep breath) Eliminating Abusive and Rampant Neglect of Interactive Technologies (“EARN IT”) Act, which was the subject of a Senate hearing on Wednesday. Here’s Alfred Ng with an explainer in CNET:

The EARN IT Act was introduced by Sen. Lindsey Graham (Republican of South Carolina) and Sen. Richard Blumenthal (Democrat of Connecticut), along with Sen. Josh Hawley (Republican of Missouri) and Sen. Dianne Feinstein (Democrat of California) on March 5.

The premise of the bill is that technology companies have to earn Section 230 protections rather than being granted immunity by default, as the Communications Decency Act has provided for over two decades.

For starters, it’s not clear that companies have to “earn” what are already protections provided under the First Amendment: to publish, and to allow their users to publish, with very few legal restrictions. But if the EARN IT Act were passed, tech companies could be held liable if their users posted illegal content. This would represent a significant and potentially devastating amendment to Section 230, a much-misunderstood law that many consider a pillar of the internet and the businesses that operate on top of it.

When internet companies become liable for what their users post, those companies aggressively moderate speech. This was the chief outcome of FOSTA-SESTA, the last bill Congress passed to amend Section 230. It was putatively written to eliminate sex trafficking, and was passed into law after Facebook endorsed it. I wrote about the aftermath in October:

[The law] threatens any website owner with up to 10 years in prison for hosting even one instance of prostitution-related content. As a result, sites like Craigslist removed their entire online personals sections. Sex workers who had previously been working as their own bosses were driven back onto the streets, often forced to work for pimps. Prostitution-related crime in San Francisco alone — including violence against workers — more than tripled.

Meanwhile, evidence that the law reduced sex trafficking is suspiciously hard to come by. And there is little reason to believe that the EARN IT Act will be a greater boon to public life.

Yet, for the reasons Issie Lapowsky lays out today in a good piece in Protocol, it may pass anyway. Once again Congress has lined up some sympathetic witnesses who paint a picture that, because of their misfortune, whole swathes of the internet should be eliminated.

To read Newton's entire article, click HERE.