Is The “EARN IT” Bill Designed To Limit Internet Free Speech?

What is EARN IT?

While the majority of the world was busy fighting a deadly pandemic, this bipartisan bill was introduced by senators Lindsey Graham and Richard Blumenthal, along with senators Josh Hawley and Dianne Feinstein- on March 5, 2020.

EARNT IT says that it aims to establish a National Commission on Online Child Sexual Exploitation Prevention and for other purposes.

At first glance, it sounds artless, but the complexities of this act are highly controversial. This is mainly because it deals with Section 230 of the Communications Decency Act.

This act essentially epitomizes that any interactive computer service like an app or a social media site cannot be held liable if one of it’s user’s posts something illegal. Exceptions being in cases of federal crimes, copyright issues, and things related to sex work.

The EARN IT Act basically states that these companies would have to “earn” the privileges and protections provided by section 230, rather than being automatically granted them. This can be done by demonstrating, what they call, “best practices” when it comes to making editorial choices.

Section 230 has seen a lot of changes over the years and has faced so many problems. One one side it’s seen as the staple of the first amendment being used online, and they see EARN IT as a risk.

Consider this- if companies like Facebook or Twitter were held accountable for the content shared by their users, they would be far more likely to  moderate content on their platforms to save themselves from any legal backlash. This takes a blow at our free speech.

But, the other side believes that the protection gives these tech companies too much broad power, immense flexibility, and the ability to display harmful content with no repercussions.

The EARN IT Act is taking a swing at a pretty loaded and highly debated rule. This is not where the controversies come to an end.

Though the bill does not specifically mention “end to end encryption”, there is a reason to believe that this aspect could be targeting it. Attorney General William Barr made a few remarks that hinted towards the possibility;

“… They (predators) communicate using virtually unbreakable encryption. A suspicious individual interacting with children at a real-world arcade is easier to detect than a predator lurking in the digital world…” 

He later added:

“We are also addressing child exploitation in our efforts on lawful access and in analyzing the impact of Section 230 of the Communications Decency Act on incentives for platforms to address such crimes and the availability of civil remedies to the victims.”

This wasn’t the first time he went after large tech corporations. In October of 2019, BuzzFeed revealed the contents of a letter Bill Barr sent to Mark Zuckerberg asking him to halt plans for end to end encryption across Facebook’s Apps.

People from all over had varying opinions about this bill. The reaction to this bill has been very interesting. Parents whose kids have been victims of online sexual exploitation, stand with advocacy of this bill. They see this as a chance to get the “tech companies to be more responsible and protect children online.” Mother of one such victim gave testimony in March, she said,

“…Companies that refuse to step up should be punished under our legal system.”

Blumenthal later commented

“ Tech companies have an extraordinary special safeguard against legal liability, but the unique protection comes with a responsibility.

He later added,

“Online platforms’ near-complete immunity from legal responsibility is a privilege- they have to earn it- and that’s what our bipartisan bill requires.”

At the same time, we saw many slamming the bill. Among them is a Democratic senator from Oregon.

He said:

“This bill is 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.”

How does this affect YOU?

I believe that the bill was drafted with intentions of addressing some real issues that torment our society. Having said that, the proposed solutions could radically alter the way we communicate online.

The EARN IT Act makes the government of the United States the arbitrator of all communications and conversations that take place over the internet. This directly puts our online persona in danger and limits our online free speech.

The bill violates the Constitution’s protections for free speech and privacy- it has serious First and Fourth Amendment issues.

The bill’s claimed purpose is to “prevent, reduce, and respond to the online sexual exploitation of children.” Yet, it fails to directly target Child Sexual Abuse Material(CSAM). Rather, it goes further and gives the government the authority to regulate and manage user-generated content on online media platforms.

In other words, the bill gives Bill Barr, and others, indirect editorial control on these platforms. In a way, Congress would be controlling the media, which they must not do.

Recently, the Supreme Court ruled that they may not grant governmental privilege to individuals or entities that act in violation of their First Amendment rights. This puts tech companies in a catch 22, where even if they comply with “best practices”, Congress may not grant them immunity for acting involution of their First Amendment rights- with regards to their editorial choices.

Finally, the bill’s broad scope inevitably forces online platforms to censor the constitutionally protected speech of their users.

Sadly, that’s not the end. The EARNT IT Act aims to, among other things, prevent online child sexual exploitation. To do that, they certainly will not stop at intervening texts and shared data.

It is highly likely that “best practices” may eventually include proactively scanning users’ accounts for CSAM. This directly attacks your Fourth Amendment act, where the government sets up digital police to search users’ accounts without a warrant based on probable cause.

This bill is in the first stage of the legislative process. It was introduced into Congress on March 5, 2020. It will typically be considered by committee next before it is possibly sent on to the House or Senate as a whole.

There has to be a better way of preventing CSAM from surfacing online, other than putting every single person under constant digital surveillance. To protect your online security and speech, you can ask your member of Congress to reject this bill.