EARN IT passes Senate Judiciary, stokes concerns over erosion of end-to-end encryption


Proponents of the Eliminating Abusive and Rampant Neglect of Interactive Technologies Act (EARNIT) might tout its tough stance on online child sexual abuse material but privacy and digital rights advocates contend the bill, just passed by the Senate Judiciary Committee, will erode end-to-end encryption.

EARN IT revokes Section 230 protection for internet intermediaries for what is seen as an overly broad array state and civil claims concerning child sexual abuse material.   

“The EARN IT Act sets the stage for judges across the country to apply scores of different legal standards to intermediaries’ content moderation and security practices,” Emma Llansó, director of the Center of Democracy and Technology’s Free Expression Project, said in a statement. “We know from decades of experience that threats of litigation lead website operators and other intermediaries to censor speech and shutter services. The EARN IT Act vastly amplifies those threats.” 

In preface of last week's markup, the ACLU petitioned the committee to vote down the bill, explaining in a letter that the legislation "would harm the privacy and online speech rights of every person in this country" and would jeopardize "essential encyption services."

Even an amendment offered up by Sen. Patrick Leahy, D-Ill., during markup isn’t enough to assuage those concerns.

“While the Leahy amendment correctly seeks to shield services from liability arising from their use of encryption, services will still face endless litigation concerning whether the shield applies,” Greg Nojeim, director of CDT’s Freedom, Security, and Technology Project, said.

Nojeim pointed out that the CSAM Commission created by the bill is to be chaired by Attorney General William Barr, who he called “the Darth Vader of encryption policy.”

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