EARN IT Act Threatens Section 230 Protections
TLDR: A Senate panel this week is planning to discuss new legislation that calls for Internet companies to agree to yet-to-be-determined best practices around detecting and removing child sexual abuse materials or risk losing their critical intermediary liability protections. While startups and other online platforms share lawmakers’ desire to remove problematic and illegal user-generated content from their sites, the legislation—as currently drafted—threatens to disrupt the protections that have allowed the Internet ecosystem as we know it to thrive for more than two decades.
What’s Happening This Week: The Senate Judiciary Committee is holding a hearing tomorrow at 10 a.m. to discuss the Eliminating Abusive and Rampant Neglect of Interactive Technologies (or EARN IT) Act, legislation introduced last week by Sens. Lindsey Graham (R-S.C.) and Richard Blumenthal (D-Conn.).
The proposed bill would create a National Commission on Online Child Sexual Exploitation Prevention to recommend best practices for identifying and reporting online child exploitation. The legislation would require platforms to “earn” the liability protections they receive under Section 230 of the Communications Decency Act by adhering to the commission’s best practices.
Why it Matters to Startups: Section 230’s liability protections are critical for startups that host user-generated content but have tight budgets, few full-time employees, and limited legal resources. While larger Internet companies may receive the most attention when it comes to content moderation practices, it’s the smaller platforms that are least likely to have the resources to hire thousands of human content moderators, implement expensive filtering tools, or defend against meritless lawsuits.
Despite the many benefits of Section 230, some lawmakers point to the law as the cause of a variety of online harms—such as child exploitation. But as we noted in our recent report with the Charles Koch Institute on “The Nuts and Bolts of Content Moderation,” Section 230 is what gives companies the flexibility to address and remove problematic content shared by users in ways that make the most sense for each service.
Startups can be forced to spend as much as $80,000 just to dismiss a baseless claim related to the platform’s content moderation practices at the earliest possible opportunity in a lawsuit. Since the average startup launches with approximately $78,000 in outside funding, just one of these suits could immediately bankrupt an early-stage company.
Additionally, the current protections do not shield Internet companies from criminal liability if they are found to be in violation of federal law. Platforms that knowingly transmit child exploitation imagery are currently subject to federal criminal prosecution. Section 230, which is completely inapplicable to federal criminal law, will do nothing to shield such sites from criminal liability. Similarly, Section 230 does nothing to limit liability for platforms that assist in any way in developing child sexual abuse material. Online sites are also not incentivized to ignore problematic content, since advertisers, users, and financial backers will not support platforms overrun with illegal and harmful content.
The EARN IT Act, which was introduced last week by Sens. Graham and Blumenthal, would create an unelected commission, headed by the Attorney General, to create best practices for sites to combat child exploitation. As Evan Engstrom, Engine’s Executive Director, noted in a statement, the legislation does not identify places where online platforms are falling short and instead leaves these “best practice” recommendations up to the commission—a decision that “opens the door to much broader threats to the Internet ecosystem.”
Startups, advocates, and other tech firms have also expressed concerns that the structure of the legislation would allow the commission to weaken secure end-to-end encryption. Attorney General William Barr has been especially critical of securely encrypted communications, claiming that these privacy protections impede law enforcement efforts to combat child exploitation. While the bill makes no mention of encryption, the Justice Department has previously called for tech companies to build in “backdoors” that would give law enforcement officials access to users’ protected data. Unfortunately, creating intentional vulnerabilities in encryption will undermine everyone’s security.
We appreciate lawmakers’ commitment to combating online child exploitation, and we hope that Congress and federal officials can view startups and Internet companies as allies in the fight against these heinous crimes. As the conversation around the EARN IT Act moves forward, we hope that lawmakers will continue listening to the many good actors in the startup and Internet ecosystems that are working to keep their platforms free of harmful and illegal content.
On the Horizon.
The Senate Judiciary antitrust subcommittee held a hearing on “competition in digital technology markets” this morning at 10 a.m.
The Senate Judiciary IP subcommittee is also holding a hearing at 2:15 p.m. this afternoon on “copyright law in foreign jurisdictions.”
The House Appropriations financial services and general government subcommittee is holding a hearing on the “Federal Communications Commission Budget Request for FY2021” at 10 a.m. tomorrow.
