- The Washington Times - Thursday, February 10, 2022

A bipartisan Senate proposal to make tech platforms like Facebook and Twitter aggressively fight child sexual exploitation online cleared a key Senate hurdle on Thursday, but privacy advocates remain a major obstacle. 

The Senate Judiciary Committee advanced the bipartisan bill for final consideration in the Senate by voice vote despite concerns raised by several senators, including one of the bill’s Democratic authors.

The EARN IT Act would make tech platforms work to obtain legal liability protections afforded through the Communications Decency Act’s Section 230. The bill, which 22 senators co-sponsored, would remove the protections for platforms with child sexual abuse material on their sites. 

“Our goal is to tell the social media companies, ‘get involved and stop this crap,’” Sen. Lindsey Graham, South Carolina Republican and a co-sponsor of the legislation, said at the judiciary committee meeting. “And if you don’t take responsibility for what’s on your platform, then Section 230 will not be there for you.”

Much of the information available about children exploited online has been revealed by the tech companies policing themselves. For example, Twitter said last month that during the first six months of 2021, it suspended 453,754 accounts for violations of its child sexual exploitation policy.

The Senate bill would hold platforms liable for what they discover, prompting lawmakers to question whether it would incentivize tech platforms to turn a blind eye rather than risk punishment.

A previous version of the legislation was introduced in 2020, but stalled. The opponents came from a range of different ideologies, including from the conservatives at Americans for Prosperity who teamed with the liberal American Civil Liberties Union to fight the bill. 

This time, the ACLU joined a coalition of more than 60 groups in opposition to the revived bill. They wrote to the judiciary committee this week, imploring senators to drop the bill. Members of the coalition included the Electronic Frontier Foundation; the Wikimedia Foundation, the group responsible for Wikipedia; and the libertarian-minded TechFreedom. 

TechFreedom separately wrote to the committee this week arguing that the bill would discourage communications providers from employing strong encryption and undermine criminal prosecutions of crimes against children.

“The bill will, for the first time, compel private companies to monitor their users’ communications,” wrote TechFreedom’s Berin Szóka and Ari Cohn. “This may sound like an improvement, but it will convert the voluntary efforts of companies into state action subject to the Fourth Amendment’s warrant requirement. Because private companies do not, and cannot, obtain warrants before conducting such monitoring, any evidence they obtain will be tainted, and courts will have no choice but to toss out any criminal prosecutions based on such evidence.”

Sen. Dick Durbin, Illinois Democrat and a cosponsor of the bill, pressed his colleagues at the hearing about whether the legislation required the tech companies to look for child sexual abuse material. 

Mr. Graham and Democratic Sen. Richard Blumenthal of Connecticut, who together have shepherded the bill, said it did not expressly create a duty for the social media companies to look and such a requirement was a different matter that a future bill may need to address. 

“It raises the question, if we are establishing civil liability, it is usually a breach of some duty that leads to that liability,” Mr. Durbin said. “Is there some refuge for Facebook and Twitter to say, ‘We just never look. We don’t know what’s being published?’”  

Mr. Blumenthal said if the platforms know the offending content, they must act in accordance with the proposed law. Mr. Durbin pressed him on whether the bill they wrote together created any obligation for the platforms to look to learn.

“There is no express duty for them to undertake that kind of review; in my view, of course, there is a moral responsibility here,” Mr. Blumenthal replied.   

Sen. Ron Wyden, Oregon Democrat, is perhaps the bill’s most vocal opponent in Congress and repeated his calls to stop it in a series of posts on Twitter.

He said it was a repeat of past legislation known as SESTA-FOSTA that did little to curb sex trafficking online.

“The #EARNITAct is SESTA-FOSTA on steroids. SESTA-FOSTA didn’t help victims. It increased sex trafficking,” Mr. Wyden tweeted.

The bill has changed since its 2020 debut and lawmakers’ desire to mold it more indicates more changes are likely if the full Senate picks up where the committee left off. 

The judiciary committee has advanced several proposals to crack down on tech in recent weeks that address antitrust rules, which means the Senate has a growing menu of options to choose from when deciding whether and how it wants to crack down on the tech sector. 

• Ryan Lovelace can be reached at rlovelace@washingtontimes.com.

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