US Representatives Drafting New Online Speech Regulation EARN IT

Free speech online could be the latest target for hamstringing your rights. This is thanks to the EARN IT legislation being drafted.

One of the more celebrated rights Americans have is the right to free speech. If you say something, the government doesn’t necessarily have the strongest legal foothold to stop you. Of course, this doesn’t take into account consequences of said free speech, but it is a right nevertheless. The same can sort of be said online. If someone says something online, the government would have a difficult time demanding that such speech be removed. Regulating what is said is left to the operators discretion.

Now, it seems that such a balance could soon be under threat. That is thanks to legislation currently being drafted known as EARN IT. More broadly, the legislation is known as Eliminating Abusive and Rampant Neglect of Interactive Technologies. It is being drafted by Republican senator Lindsey Graham. Not only does the legislation threaten companies that employ end-to-end encryption, but also might compel those companies to pre-screen comments. The draft was obtained by Bloomberg. Here’s part of that report:

Graham’s bill, which Democratic Senator Richard Blumenthal of Connecticut is also working on, calls for Congress and the administration to establish a commission to determine best practices for tech companies to prevent online exploitation of children and allows the attorney general to modify the recommendations.

“The absolute worst-case scenario could easily become reality,” said Berin Szoka, president of TechFreedom, a libertarian think tank aligned with technology companies. “DOJ could effectively ban end-to-end encryption.”

The draft bill represents the latest effort to weaken liability protections for technology platforms after a 2018 measure that pared the exemption for content related to online sex trafficking.

Passage of that law indicated that the rules are changing for an industry that had been the darling of Washington but is now facing a broad, bipartisan backlash.

The Electronic Frontier Foundation (EFF) is blasting the draft legislation as “a new and serious threat to both free speech and security online” and is calling on congress to reject the bill. From the EFF:

EARN IT would establish a “National Commission on Online Child Exploitation Prevention.” This Commission would include the Chairman of the Federal Trade Commission, the Attorney General, the Secretary of Homeland Security, and 12 other members handpicked by leaders in Congress. The Commission would be tasked with recommending “best practices for providers of interactive computer services regarding the prevention of online child exploitation conduct.” But far from mere recommendations, those “best practices” would bring the force of law. Platforms that failed to adhere to them would be stripped of their Section 230 protections if they were accused (either in civil or criminal court) of carrying unlawful material relating to child exploitation.

Laws relating to restrictions on speech must reflect a careful balance of competing policy goals and protections for civil liberties. Lawmakers can only strike that balance through an open, transparent lawmaking process. It would be deeply irresponsible for Congress to offload that duty to an unelected and unaccountable commission.

It gets worse. If the Attorney General disagrees with the Commission’s recommendations, he can override them and write his own instead. This bill simply gives too much power to the Department of Justice, which, as a law enforcement agency, is a particularly bad choice to dictate Internet policy.

EARN IT is a direct threat to constitutional protections for free speech and expression. To pass constitutional muster, a law that regulates the content of speech must be as narrowly tailored as possible so as not to chill legitimate, lawful speech. Rather than being narrowly tailored, EARN IT is absurdly broad: under EARN IT, the Commission would effectively have the power to change and broaden the law however it saw fit, as long as it could claim that its recommendations somehow aided in the prevention of child exploitation. Those laws could change and expand unpredictably, especially after changes in the presidential administration.

The news comes as Republican’s prepare to acquit impeached president Donald Trump in the senate in a terrible effort to cover up the presidents high crimes and misdemeanours. In the process, Republican’s accomplish a number of things. First of all, it helps the US officially rid itself of the image that it is a country of law and order. Additionally, it further cements the idea that justice depends on political leanings. So, if you are part of a terror cell, the first question that is asked is whether or not members are Republican leaning in any way. If so, officials will instantly become reluctant to call all those activities terrorism.

So, ultimately, we are seeing a country that is about to be essentially a backwards nation where politics can shield people from the consequences of their actions. As such, it’s really not a surprise that government officials are already working on being so open in gutting general rights. Even though indirectly attempting to regulate free speech online is a very big government move, Republicans and conservatives alike will likely spin it in the opposite direction and call it freedom. It would be just like how they repealed network neutrality and called it restoring freedom to the Internet.

For us international observers, all we can do is observe the decay of America from a distance. The only thing we can do is learn from the mistakes of America and try to pressure our own governments to act responsibly when they wield their power. After all, we wouldn’t want to turn into a chaotic and lawless state like America, do we?

Drew Wilson on Twitter: @icecube85 and Facebook.

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