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EARN IT Act Remains Fundamentally Flawed After Senate Judiciary Committee Markup

The EARN IT Act (s.3398) remains a threat to fundamental rights and the ability of all Internet users to enjoy the crucial protections of strong encryption. While the bill was amended in the Senate Judiciary Committee today, these amendments do not fix the problems that are core to the bill’s misguided approach.

The EARN IT Act revokes Section 230 protection for Internet intermediaries for a broadly defined set of state criminal and civil claims around child sexual abuse material. This dramatically expands the risk of lawsuits that online intermediaries will face over user-generated content and their use of end-to-end encryption on their services.

“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,” said Emma Llansó, Director of CDT’s Free Expression Project. “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.”

The amendment offered by Senator Leahy, intended to reduce the bill’s impact on the ability of online services to provide end-to-end encryption to their users, unfortunately does not alleviate the risk. “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,” said Greg Nojeim, Director of CDT’s Freedom, Security, and Technology Project.

“In addition, the CSAM Commission the bill creates is chaired by Attorney General Barr, the Darth Vader of encryption policy. The bill gives encryption opponents a powerful platform to launch further attacks on this vital service to protect users’ privacy and security,” Nojeim added.

The bill replicates key flaws from the SESTA-FOSTA debate, showing that Senators are not heeding lessons from the recent past. “The EARN IT Act would create enormous uncertainty for intermediaries about the legal standards that apply to them as they host, transmit, link, and otherwise enable access to individuals’ speech online. As we saw with SESTA-FOSTA, intermediaries respond to this kind of uncertainty by closing down forums, deactivating accounts, and silencing lawful, constitutionally protected speech,” said Llansó. “Unfortunately, the Senate Judiciary Committee has not learned the lesson of the FOSTA fiasco and is pushing a bill that’s even broader, with no consideration of the impact it will have on vulnerable individuals and groups whose speech and access to information will be suppressed.”

A broad coalition of digital rights organizations joined in opposing the EARN IT Act and Manager’s Amendment before today’s markup. Multiple members of the Senate Judiciary Committee expressed a desire to see the bill further debated and amended on the floor.