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Congress proposes anti-child abuse rules to punish web platforms — and raises fears about encryption

The EARN IT Act would tie legal protection to new rules

President Trump Gives State Of The Union Address Photo by Mario Tama/Getty Images

Senators have proposed a law requiring websites to actively fight child exploitation or risk losing legal protections. The bill, Eliminating Abusive and Rampant Neglect of Interactive Technologies (or EARN IT) Act, was introduced by Sens. Lindsey Graham (R-SC), Josh Hawley (R-MO), Dianne Feinstein (D-CA), and Richard Blumenthal (D-CT) today. It would establish a new government commission composed of administration officials and outside experts, who would set “best practices” for removing child sexual exploitation and abuse material online.

The principles are theoretically voluntary, but if companies don’t comply, they can be held legally responsible for that content — losing some protections provided by Section 230 of the Communications Decency Act. They can maintain immunity if they establish that they have “other reasonable practices” in place.

A draft of the EARN IT Act circulated in late January, and it was met with alarm by privacy advocates and some tech companies. The draft bill gave the committee wide latitude to make rules governing online platforms, and it gave the Justice Department substantial influence over the committee. It was widely seen as an attack on encryption since the “best practices” could include a backdoor giving law enforcement access to users’ private conversations. Attorney General William Barr has previously pushed Apple to unlock phones for criminal investigations and urged Facebook to delay implementing end-to-end encryption on its messaging apps.

The final bill is supported by several Republican and Democratic lawmakers in addition to the four above. The bill is also backed by the National Center for Missing and Exploited Children and the National Center on Sexual Exploitation, formerly known as Morality in Media, among other groups. “For the first time, you will have to earn blanket liability protection when it comes to protecting minors. Our goal is to do this in a balanced way that doesn’t overly inhibit innovation, but forcibly deals with child exploitation,” said Graham in a statement.

Sen. Ron Wyden (D-OR), however, issued a furious statement calling the EARN IT Act “a transparent and deeply cynical effort by a few well-connected corporations and the Trump administration to use child sexual abuse to their political advantage, the impact to free speech and the security and privacy of every single American be damned.”

The Electronic Frontier Foundation and American Civil Liberties Union objected to the proposal, with the EFF calling it “custom-designed to break encryption” and the ACLU arguing it “threatens the safety of activists, domestic violence victims, and millions of others who rely on strong encryption every day.”

Major tech industry group the Internet Association also criticized the move. “IA and its member companies share the goal of helping to eradicate child exploitation online and offline. We have very strong concerns, however, that the EARN IT Act as introduced may impede existing industry efforts to achieve this shared goal. We look forward to working with Chairman Graham and Senator Blumenthal on a path forward.”

Facebook, which has been one of Barr’s primary targets, expressed concern before the bill’s proposal. “We share the EARN IT Act sponsors’ commitment to child safety and have made keeping children safe online a top priority,” a spokesperson told The Washington Post earlier this week. “We’re concerned the EARN IT Act may be used to roll back encryption, which protects everyone’s safety from hackers and criminals, and may limit the ability of American companies to provide the private and secure services that people expect.”

Alongside the EARN IT Act, the Justice Department separately unveiled 11 “voluntary principles” for preventing online child sexual exploitation. The principles are backed by law enforcement in Australia, Canada, New Zealand, and the United Kingdom. They include broad commitments like “companies seek to prevent known child sexual abuse material from being made available to users or accessible on their platforms and services,” followed by more specific instructions — including preventing abuse “facilitated or amplified” by live-streaming, preventing automated recommendations of abuse material, and regularly publishing reports of their anti-abuse efforts.

The EARN IT Act is part of a larger backlash against Section 230, which protects websites and similar services from liability for user-generated content. The Justice Department recently convened a meeting on the law, focusing on the problems of harassment and child abuse. Barr has also linked Section 230 to antitrust concerns, describing it as a way to rein in large tech companies — although the law is also important for online news outlets and smaller web services.

Congress has shown a growing enthusiasm for changing the law. In 2018, it passed FOSTA-SESTA, which modified Section 230 to remove protections for sex work-related content. A couple of bills have also proposed tying protection to being politically “unbiased,” but so far, these have gotten little traction.