The EARN IT Act masquerades as a protector of children, but it’s still the same old government wanting to peek at our online communications.
As coronavirus panic sets in and stock-up shoppers strain our efficient (yet not resilient) “just in time” supply chain, an attack on digital privacy might not be at the top of our minds as the most important threat of the day. Yet that is exactly what Congress is considering, as the latest opportunity to get all up in our data comes before the Senate even as we’re practicing safe social distancing from each other. The EARN IT (Eliminating Abusive and Rampant Neglect of Interactive Technologies) Act, introduced earlier this month by Senator Lindsey Graham (R-SC) with ten other bipartisan cosponsors, claims to protect children from sexual exploitation by preventing pedophiles from sharing material online, but a peek under the covers reveals what may be the real motive: a voyeuristic government that wants a back door into your business.
Make no mistake, child sexual abuse is indefensible. The harm is real and can follow victims throughout their lives. In a recent BBC article, Andy, a survivor of childhood sexual abuse, describes living in constant fear that anyone who sees him might recognize him from videos that his abuser made years ago, videos that are still traded and viewed online. Andy went on to lend his name and support to the Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018, a law that set a $3000 minimum restitution that defendants must pay the victims of the child pornography they viewed or shared. In addition, the law created a reserve fund to compensate victims for the “full amount” of their losses, often from an increasing number of defendants over time.
In contrast, EARN 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,” according to the EFF.
EARN IT targets Section 230, part of the Communications Decency Act of 1996 that is a core principle of the internet as we know it. Section 230 is why you are responsible for your online speech, instead of the tech company that runs the platform where you say it. Under EARN IT, tech companies such as Facebook, Instagram, or YouTube would have to earn their Section 230 immunity back from the government by meeting a set of standards that would be established by a national commission led by the Attorney General (currently William Barr), the Secretary of Homeland Security, and the Chair of the Federal Trade Commission.
If a company doesn’t follow those standards, their Section 230 protection is revoked and they can be sued into oblivion for anything their users say or do on their platform. Barr, of course, has been a vocal critic of encryption, and would prefer law enforcement authorities enjoy legal access to any and all internet communications. Unfortunately, it has so far proven impossible to create a back door to encrypted messages that only “good guys” can open. EARN IT forces companies into a no-win choice between dumping effective encryption, or opening themselves up to endless lawsuits.
Perhaps you’re wondering why good people would need to use encryption at all. Truth is, people like you use encryption all the time. Ever log in to an account, buy something online, or use a portal to discuss health matters with your doctor? Passwords, credit card numbers, and medical records are all encrypted. Data thieves can steal your money or even your identity without it. Back doors, like the kind Barr advocates, could even be used to spy on citizens and crack down on political dissent, which might not bother you now, but what if the next administration likes you as much as China likes the Uyghurs?
The most ironic aspect of EARN IT is that implementation of the Act may hinder the ability of law enforcement to prosecute pedophiles. Currently, private companies can voluntarily scan messages on their platforms for illegal content like images of child abuse, and forward that information to the proper authorities. Once EARN IT turns those companies into state agents, the Fourth Amendment would require the government to obtain warrants before accessing potentially illegal content.
Stomping out child sexual abuse is a worthy goal. However, this is not the way to do it. EARN IT merely wraps the government’s dream of free access to our communications in “what about the children?” concerns instead of the familiar “patriotism” concerns from the last decade. It needs to die a quiet death, with the resources put towards more productive efforts.
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