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A bipartisan Senate proposal to enable tech platforms like Facebook and Twitter to aggressively tackle the sexual exploitation of children online removed a key Senate hurdle on Thursday, but privacy advocates remain a major hurdle.
The Senate Judiciary Committee has pushed the bipartisan bill forward for final consideration by a voice vote in the Senate, despite concerns expressed by several senators, including one of the bill’s Democratic co-authors.
The EARN IT Act will enable technology platforms to work to achieve the legal liability protections provided through Section 230 of the Communications Ethics Act. The bill, co-sponsored by 22 senators, would remove the protections of platforms that have child sexual abuse material on their sites.
“Our goal is to tell the social media companies, get involved and put an end to this nonsense,” said Senator Lindsey Graham, a South Carolina Republican and co-sponsor of the law, at the judiciary committee meeting. “And if you don’t take responsibility for what happens on your platform, then Chapter 230 won’t be there for you.”
Much of the information available about children being abused online has been uncovered by technology companies that oversee them. For example, Twitter said last month that it suspended 453,754 accounts for violating its child sexual abuse policy in the first six months of 2021.
The Senate bill will hold platforms accountable for what they discover, prompting legislators to question whether it will encourage them to ignore tech platforms rather than risk penalties.
An earlier version of the legislation was introduced in 2020 but has been discontinued. Opponents came from a number of different ideologies, including conservatives at Americans for Prosperity, who worked with the liberal American Civil Liberties Union to fight the bill.
This time, the ACLU joined a coalition of more than 60 factions to oppose the revived bill. They wrote to the judiciary committee this week, asking senators to withdraw the bill. Coalition members include the Electronic Frontier Foundation; The Wikimedia Foundation, the group responsible for Wikipedia; and the libertarian-minded TechFreedom.
TechFreedom also wrote to the committee separately this week, arguing that the bill would deter communications providers from using strong encryption and undermine criminal prosecution of crimes against children.
“The bill will, for the first time, force private companies to monitor their users’ communications,” said TechFreedom’s Berin Szóka and Ari Cohn. “This may seem like an improvement, but it will transform companies’ voluntary efforts into government action, subject to the mandate of the Fourth Amendment. Because private companies do not and cannot obtain permission before carrying out such monitoring, any evidence they obtain will be tarnished and courts will have no choice but to reject any criminal prosecution based on such evidence.”
Senator Dick Durbin, an Illinois Democrat and one of the law’s co-sponsors, pressed his colleagues at the hearing on whether the legislation required tech companies to search for child sexual abuse material.
Mr. Graham of Connecticut and Democrat Senator Richard Blumenthal of Connecticut, who jointly led the bill, said he clearly did not create a mandate for social media companies to look into, and such a requirement is a different issue that a future bill may need to address. .
“If we’re establishing legal liability, it often raises the question of whether it was a breach of duty that gave rise to that liability,” said Mr. Durbin. “Is there a shelter for Facebook and Twitter to say ‘We never look’? We don’t know what’s been published?”
Mr Blumenthal said that if platforms know about offensive content, they should act according to the proposed law. Mr. Durbin pressured him as to whether the bill they co-wrote created any obligation for platforms to look after learning.
“There is no clear mandate for them to undertake this type of review; In my view, of course, there is a moral responsibility here,” Mr. Blumenthal replied.
Senator Ron Wyden, an Oregon Democrat, is perhaps the bill’s most vocal opponent in Congress and has repeated calls to stop him in a series of posts on Twitter.
He said it was a repetition of old legislation known as SESTA-FOSTA, which did little to stop the online sex trade.
“#EARNITact is SESTA-FOSTA on steroids. SESTA-FOSTA didn’t help victims. It increased sex trafficking,” Mr. Wyden tweeted.
The bill has changed since its debut in 2020, and lawmakers’ desire to shape it further indicates that more changes are likely if the entire Senate continues where the committee left off.
The judiciary committee has made several recommendations in recent weeks to crack down on the technology that deals with antitrust rules; This means the Senate has a growing menu of options to choose from when deciding whether and how it wants to crash the tech industry.
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