Changes to the EARN IT Act Need More Analysis to Be Better ConsideredJuly 2, 2020
Today, the Senate Judiciary Committee marked up the “EARN IT Act.” The bill limits protections of Section 230 of the Communications Decency Act with respect to child abuse material. Platforms that knowingly carry such material can already be held criminally liable, but the bill subjects platforms to state and federal civil liability, and state criminal law in this area. It also creates a federal commission to recommend platform design best practices.
The following can be attributed to Bertram Lee, Policy Counsel at Public Knowledge:
“Calls for platforms to do more to prevent the exploitation of children on their services are laudable, and there is no doubt that platforms can do more to protect children. However, there are better ways to hold companies accountable when they design their products to facilitate law-breaking, or break the law themselves. The EARN IT Act has undergone massive changes over just the past few days. It represents a major change to platform liability law, and is not the ‘narrowly crafted approach’ some senators have claimed it is.
“We are pleased that Senator Leahy’s amendment, which is designed to address concerns that EARN IT would make it effectively impossible for platforms to offer general-purpose, end-to-end encryption to consumers, passed almost unanimously through the Committee. However, we still need to ensure that opening up platforms to new forms of criminal and civil liability does not force them to make design changes that may help catch some criminals, but at the cost of harming all users’ safety, security, and free expression. We are also concerned with the possibility that any new liability aimed at limiting CSAM material on platforms does not disproportionately affect smaller platforms, or users who have valid reasons to want to keep their communications free from monitoring from law enforcement or from platforms themselves.
“At this point, the differing reactions to this bill make it something of a Rorschach test. A full analysis of what is effectively a brand new bill requires that lawmakers and public policy groups are allowed more time to do the requisite analysis of the effects that this legislation will have on consumers.”
View our blog series on Section 230 to learn more about this important law that allows user-generated content sites, like digital platforms, to operate.