Misguided EARN IT Act Earns Free Press Action's Opposition

WASHINGTON — On Thursday, U.S. Attorney General William Barr is scheduled to unveil a series of principles designed to undermine online free speech and privacy protections in the name of law enforcement.

Barr’s announcement is tied closely to plans by Sens. Lindsey Graham (R–South Carolina) and Richard Blumenthal (D–Connecticut) to introduce the EARN IT Act, a bill that threatens all online communications and the encryption technologies used to secure those conversations. The legislation would raise the specter of online-content screening by a governmental commission serving under the U.S. attorney general.

If passed, the bill would charge a new congressionally appointed commission with the development of “best practices” that all websites, applications, broadband providers and other online entities could follow to avoid liability for what the bill describes as “online child sexual abuse material” posted on their sites or sent over their services by third parties.

As it is currently drafted, the bill leaves the task of defining best practices to commission members, whom the Senate Majority Leader and the Speaker of the House would appoint to serve under the attorney general. Failure to certify compliance with these best practices could remove immunity under Section 230 of the Communications Act and expose online entities to state criminal prosecution and civil suits for content they did not themselves create.

Free Press Action Senior Policy Counsel Gaurav Laroia made the following statement:

“The EARN IT Act is constitutionally suspect. It threatens key First and Fourth Amendment rights while failing to specify how it could or would administer the tests online entities need to pass to preserve those rights for themselves and their users.

“The drafters of this bill obviously want to address some real harms, yet their solutions could radically change the way we communicate online. The legislation sets up the U.S. government as the arbiter of all communications and conversations that happen on the internet — a terrible idea in any instance, and a truly terrifying one when the person driving this effort and seeking this power is none other than Donald Trump’s attorney general, Bill Barr.

“Online child sexual-abuse material, as the bill labels it, is a heinous problem. It’s understandable that the co-sponsors of this bill want to address it. But the legislation’s construct could upset the entire internet ecosystem to combat activities that are already clearly unlawful.

“The bill takes aim at a popular political punching bag, Section 230, which shields websites, apps, broadband providers and other online entities from liability for things they do not themselves say. According to Section 230, a speaker who posts unlawful or defamatory content online is fully responsible for it, while a website like Twitter or Yelp or an internet provider like AT&T or Comcast isn’t liable for the content they host or transmit on that speaker’s behalf.

“But Section 230 has no impact on federal criminal law, which already makes production and distribution of child sexual-abuse material a crime and already requires online entities to tell law enforcement about the existence of any such material they find on their networks. Subjecting online providers to new civil suits and state laws unless they comply with the Earn It Act’s currently undefined best practices is a poor substitute for strengthening existing federal criminal laws as needed.

“The bill’s stated intent is to remove Section 230 protection for online entities that, in Bill Barr’s opinion, don’t earn it. Recent reports suggest that the Department of Justice could float proposed best practices very soon — undermining the commission and the processes the bill lays out for lengthy bureaucratic and congressional consideration of this scheme before it even begins.

“The particularly frightening part is the collateral damage caused by ceding so much authority to this government or any government. For example, handing over this kind of power to an administration and attorney general with such an abysmal record on LGBTQIA+ rights could seriously impact the availability of lifesaving information. We wouldn’t want an ordinary administration to have the authority to police the content that flows over our communications networks. The threats are that much greater with the Trump administration.  

“The First Amendment implications are obvious and severe, made all the more so by the bill’s attempts to dance around them. To call the best practices unconstitutionally vague gives them too much credit. We don’t yet know what these rules might look like, and to charge a governmental commission with review of every online provider’s practices on the basis of unannounced standards would chill free speech.

“It’s also likely that AG Barr would advance standards that would enable him to outlaw secure encryption, based on the notion that the police should have a key to every lock and a transcript of every private conversation.

“The idea that we can break encryption and safely store a record of everything just for the putative good guys is technically unsound. And it’s anathema to the privacy rights people must have against not just corporate actors and criminals but against overly intrusive governments, too.”