'EARN IT' Bill Would See Feds Target Online Privacy

P. Gardner Goldsmith | May 17, 2023
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Introduced separately in the House and Senate earlier this year, the virtually identical so-called “EARNT IT” bills are gathering momentum in both. And as the Senate version (SB 3538) emerges from the Judiciary Committee, moving towards a floor vote, modern Paul Revere’s for free speech and the U.S. Constitution are mounting their electronic horses, gathering their courage, and riding across the internet to warn us: “The Censors Are Coming!”

Is such potent rhetoric applicable? Absolutely.

Given the fact that Sen. Lindsay Graham (R-SC) is the prime sponsor, one justifiably can assume that the bill is anathema to Natural Rights and the U.S. Constitution he swore to uphold, and the text of the bill proves one’s assumptions again, quite justified.

The bill actually goes back to Graham’s original proposal in 2020, when it was touted as a way to stop “child exploitation” online. Likely to his utter frustration, it got shelved - but, as Riana Pfefferkorn wrote a year ago for the Stanford Center for the Internet and Society, one of his “heroic” leftist pals resurrected it in 2022:

“On January 31 (2022), Senator Richard Blumenthal, together with 18 co-sponsors from both parties, reintroduced the EARN IT Act. Two days later, the House reintroduced its version too. Last introduced in 2020, the EARN IT Act would, if passed, pare back online service providers’ broad immunity under a federal law called Section 230, exposing them to civil lawsuits and state-level criminal charges for the child sexual abuse material (CSAM) posted by their users.”

As I have noted for MRCTV, “Section 230” of the 1996 “Communications Decency Act” employs a byzantine maze of constitutional reinterpretations to block states from prosecuting online providers (sites or internet service providers -- ISPs) should users place Child Sexual Abuse Material (termed CSAM) on the sites or trade/disseminate such material (the “indecency term the feds employ is, obviously, malleable, which is an additional danger) via the ISPs. But the key is that the feds grant the FCC the power to decide if the online site or ISP curated the content “in good faith,” which gives the feds even more power to make arbitrary decisions about not just what the offensive content is, but also about the “good faith” actions of the companies providing the web-hosting/access.

As Pfefferkorn noted in 2022, the politicians have adopted the guise of “protecting children” when this bill has little to do with that, and a lot more to do with banning privacy and encryption online:

“At first blush, that might sound like a good thing, which is why it will be hard for members of Congress to resist – who could ever vote against child safety? But make no mistake: this was a dangerous bill two years ago, and because it’s doubled down on its anti-encryption stance, it’s even more dangerous now.”

“EARN IT” (the acronym stands for Eliminating Abusive and Rampant Neglect of Interactive Technologies”) would see “regulators” and the courts assume that any site, ISP, or personal allowance for encryption was a tacit admission that the site, ISP, or person was not policing content “in good faith,” essentially pressuring online providers of space to forbid use of encryption.

Over the two years since Graham introduced it in the Senate, EARN IT has been “revised” – ostensibly to protect encryption. But this is a smokescreen. Encryption is not explicitly banned by EARN IT, but in the bill the onus is placed on space-service providers to, essentially, block the ability to post anonymously.

Related: No Surprise: Sen. Warren Suddenly Dreams Up a Bill To Crush Cryptocurrency | MRCTV

Rights-thirsty politicians call the process “client-side scanning,” which sends data from users’ devices to law-enforcement before the message is encrypted.

Of course, this diversion of your private data would be done “voluntarily” by the service providers, essentially skirting the Fourth Amendment in a manner similar to that by which the feds in 2008 gave to cell phone providers immunity from liability suits should the companies breach their promises to us and share our personal conversations with the feds.

EARN IT is an additional way to stifle speech and – a key point at this time that sees millions around the world trying to escape the inflated dollar and any coming Central Bank Digital Currency (CBDC) – to stop people from trading cryptocurrency in the US.

Indeed, Pfefferkorn notes:

“EARN IT will result in companies overzealously censoring lots of perfectly legal user speech just in case anything that could potentially be deemed CSAM might be lurking in there, or even shutting down part or all of their services entirely. They’d throw the First Amendment-protected baby out with the unprotected CSAM bathwater. (The same thing happened with online censorship after Congress passed the SESTA/FOSTA [Stop Enabling Sex Traffickers Act/Fight Online Sex Trafficking] law, on which EARN IT is modeled, which carved out sex trafficking offenses from Section 230.) [More here.]”

And, she warns:

“Meanwhile, increased vigilance by providers will push CSAM traders off law-abiding platforms and onto offshore sites (that don’t follow U.S. law) and the dark web, where they’re harder to track down. (This, too, happened after SESTA/FOSTA: even as platforms censored legal speech, sex trafficking offenders and victims got harder for investigators to find.) [More here.]”

The Electronic Frontier Foundation’s India McKinney reports that not all typical “big government” politicians are aboard the “EARN IT” train to censorship.

Leftist Senator Alex Padilla (D-CA) has taken a hard line in opposition, and, as McKinney writes he

“…asked to enter a group letter opposing EARN IT from a coalition of 132 LBGTQ+ human rights organizations, including EFF and the Center for Democracy and Technology, into the record.”

“EARN IT” could see a final Senate vote in mere days. Should the Senate pass the bill, it will await the House version and “reconciliation.”

It is unlikely that, should the "reconciliated" version pass, it ever can be reconciled with the wording of the US Constitution or our freedom of speech.

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