Civil and digital rights organizations are sounding the alarm over EARN IT: America’s encryption ban bill. It could be voted on tomorrow.
The war on freedom is set to continue tomorrow. Congress is set to vote on EARN IT, America’s version of the encryption ban legislation. As many of you will no doubt recall, EARN IT has been making the news even before it was tabled. Back in March, we reported on the imminent tabling of the legislation.
The legislation came about after Facebook announced that it would be moving towards end-to-end encryption. Lawmakers grilled the company, outraged that big government might have a harder time eavesdropping in on your conversations. Lawmakers issued an ultimatum: either you incorporate backdoors to your encryption or we’ll mandate it by law. Facebook, for it’s part, held firm and said that they were moving towards a more secure infrastructure.
Now, here we are, with lawmakers response. The legislation hands the Attorney General all the power to mandate “best practices” over what constitutes as acceptable security. Not only can the Attorney General dictate to US companies how they can secure their infrastructure, but change the requirements any time they feel like it as well.
The Electronic Frontier Foundation (EFF), is pointing out that the legislation could be voted on as early as tomorrow. From the EFF:
This Thursday, the Senate Judiciary Committee is scheduled to debate and vote on the so-called EARN IT Act, S. 3398. It’s a law that would allow the government to scan every message sent online. The EARN IT Act creates a 19-person commission that would be dominated by law enforcement agencies, with Attorney General William Barr at the top. This unelected commission will be authorized to make new rules on “best practices” that Internet websites will have to follow. Any Internet platform that doesn’t comply with this law enforcement wish list will lose the legal protections of Section 230.
The new rules that Attorney General Barr creates won’t just apply to social media or giant Internet companies. Section 230 is what protects owners of small online forums, websites, and blogs with comment sections, from being punished for the speech of others. Without Section 230 protections, platform owners and online moderators will have every incentive to over-censor speech, since they could potentially be sued out of existence based on someone else’s statements.
The EFF further went on to call on American’s to tell congress to vote against the legislation:
The EARN IT Act could end user privacy as we know it. Tech companies that provide private, encrypted messaging could have to re-write their software to allow police special access to their users’ messages.
This bill is a power grab by police. We need your help to stop it today. Contact your Senator and tell them to oppose the EARN IT Act.
Meanwhile, the American Civil Rights Union (ACLU) is also raising the alarm over the legislation. They worry that this could have a detrimental impact on marginalized communities. From the ACLU:
Attorney General William Barr, who will head the commission that writes the best practices and have near veto power over them, has identified strong encryption as one of the primary bars to effective law enforcement. Thus, it is particularly concerning that the EARN IT Act provides broad latitude for “best practices” that involve building vulnerabilities into encrypted communications — vulnerabilities like “back doors” for law enforcement that are really open doors for bad actors or mass scanning of private communications.
Any threat to encryption is a threat to the privacy and safety of every American, but particularly to the LGBTQ community, sex workers, and to other vulnerable and marginalized groups. Strong encryption can be vital to many in the LGBTQ community who rely on the internet to access a support network, seek resources to combat discrimination and abuse, and find doctors and treatment to assist with transition, HIV prevention, and other health concerns. Now, as many in our country take to the streets to demand racial justice, encryption is critical for organizing protests and ensuring the safety of protesters. Even more, when companies weaken encryption for U.S. consumers, they are poorly positioned to resist requests by foreign governments to apply the same standards to products abroad. This can pose a particular threat to individuals abroad that live in countries that actively persecute and criminalize LBGTQ people. Encryption also safeguards domestic violence victims, allows journalists to communicate with confidential sources, and protects our military and national security in conflict zones.
The EARN IT Act, with its broad mandate and the authority it grants to an anti-encryption Attorney General, endangers the protection encryption offers.
That’s not the EARN It Act’s only problem. In addition to undermining encryption, the bill poses serious dangers to online free speech by requiring platforms to engage in broad content moderation practices or lose the protections from liability afforded to them by CDA 230. Congress has abrogated CDA 230’s liability shield only one other time. SESTA/FOSTA, introduced in 2018,eliminated 230’s protections for sex trafficking advertisements. That experience taught us two things. First, to avoid liability, online speech platforms will engage in broad content moderation and censorship. Entire web sites that provided forums for sex workers to connect, share critical health and safety information, and build community disappeared after SESTA/FOSTA. Google and other remote storage sites began to scan for sex-related content and remove it from their systems. Second, the censorship of sex-related speech will disproportionately harm the LGBTQ community.
Under the EARN IT Act, much like SESTA/FOSTA, best practices will not only apply to illegal child sexual exploitation. By requiring platforms to broadly monitor and censor speech to which children might be exposed online, the EARN IT Act’s commission may recommend best practices that disproportionately censor, among other things: sex education materials, online support systems and communities for youth who are transgender or non-binary, and all other youth who are in any way questioning their gender or sexual identity to communicate with each other and with community members, any sex-related speech, particularly the speech of sex workers and of those in the sex industry, and any communication or speech involving youth. Paradoxically, the best practices could harm children’s ability to engage fully and experience the tremendous benefits to education and enrichment the internet offers.
All of this is happening just days away from the 4th of July celebrations just to add insult to injury.
We’ll continue to monitor the situation and bring you word if we see any new developments as they unfold.