If you believe in freedom of speech, internet privacy, freedom from unreasonable search and seizure, and other such rights and privileges, the Democrats are not your friends, as they proved recently in the Senate Judiciary Committee, where they helped green-light the poisonous, pro-censorship EARN IT Act for a floor vote sometime in the near future.

Granted, this is an entirely re-written EARN IT Act, with an amendment from Vermont Democrat Patrick Leahy, promising that this supposedly new and improved legislation really, really isn’t about creating a back-door to encryption for the ever-maleficent Attorney General William Barr to exploit.

But as many critics have observed, the rewrite is potentially worse than the original and threatens to open the door to a 50-state cascade of horribles that by comparison will make the tsunami of censorship that followed the passage of FOSTA/SESTA look like a très tepid rivulet.

Bipartisan Basilisk

As originally envisioned by the bipartisan, double-headed basilisk consisting of Senators Richard Blumenthal (D-Conn) and Lindsey Graham (R-SC), the Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2020, or “EARN IT Act,” for short, would have empowered a 19-member censorship commission dominated by law enforcement officials and chaired by the AG.

The act tasked the commission with coming up with a list of “best practices” for interactive computer services, supposedly to help them combat the scourge of Child Sexual Abuse Material (CSAM), aka, child pornography, and other forms of child sexual exploitation on their sites.

Providers of interactive computer services would need to comply with these new rules, or risk losing their protections under Section 230 of the Communications Decency Act of 1996, the federal law that generally grants websites and platforms immunity for text and media posted by others, often referred to as “user-generated content.”

Section 230 has been dubbed “the internet’s First Amendment,” and without it, the internet as we know it would likely cease to exist. Congress last created an exception to Section 230 in 2018 with the disastrous Fight Online Sex Trafficking Act (known as FOSTA or FOSTA/SESTA), which outlawed online adult advertising in the U.S.  In the wake of its passage, numerous interactive websites began to self-censor around the topic of sexuality and some went out of business altogether.

The original EARN IT Act was like FOSTA/SESTA on roids. Opponents of the measure foresaw the new commission requiring things like age confirmation, and more nefariously, a backdoor to encryption, the Holy Grail for federal law enforcement, which AG Bill Barr has made no bones about wanting.

Senate Republicans have introduced a new #encryption bill that's even worse than #EARNITAct. If passed, it would allow the federal gov to demand back doors on #encrypted devices and services. #SaveEncryption #NoEARNITActhttps://t.co/QNxc33wbEk

— Fight for the Future (@fightfortheftr) June 26, 2020

Blumenthal, a former prosecutor and an avowed enemy of Section 230, was a hardline proponent of FOSTA/SESTA and of the first draft of the EARN IT Act, claiming the latter had absolutely nada to do with undermining encryption.

But a wide coalition of interest groups, including the ACLU, Americans for Prosperity, the Electronic Freedom Foundation and the Internet Association, raised the alarm, leading the primary sponsor, Graham, chair of the Senate Judiciary Committee, to introduce an overhaul to the bill just before a markup hearing on July 2.

Defanging the Commission

At the beginning of the hearing, Graham announced that he has decided to “make the commission to the Attorney General advisory” and to “just strip 230 protections when it comes to child pornography and sexual exploitation.”

The defanged commission would still come up with its list of best practices, but websites and platforms won’t have to certify that they are adhering to them. Also, according to Leahy’s amendment, offering encryption will not, on its own, give rise to liability.

We have to #SaveEncryption by stopping #EarnItAct. #NoEARNITAct

Call your legislators >>> https://t.co/Fvj3lFU24P pic.twitter.com/3amiRQokez

— Fight for the Future (@fightfortheftr) June 27, 2020

Sounds great, eh? But here’s the rub: Instead of having to “earn” back their 230 protections, internet services would be stripped of those protections altogether, both for federal civil law and for state civil and criminal laws regarding “the advertisement, promotion, presentation, distribution or solicitation of child sexual abuse material.”

It’s important to remember, as Reason‘s Scott Shackford has pointed out time and again, that “everything related to transmitting images of child sexual abuse online is already against federal law.” Moreover, 230 is not a shield against federal criminal statutes.

As Shackford further noted in a January column,

“[O]nline service providers are already required to pass along any information they have about such crimes to the feds; if they do, they’re protected from legal liability for having the messages. That process is handled under a separate part of federal law, not Section 230.”

The new bill would create the prospect of 50 state laws that providers of internet services would have to follow, laws that might have lower standards of mens rea — or knowledge of wrongdoing — than federal law.

As with FOSTA/SESTA, the outcome is fairly easy to predict. Those sites with the resources to do so will be forced to heavily police its content for any sexual references or images, on the fear that child sexual abuse material might slip through. Or they may end user generated content altogether.

Encryption Imperiled

Nor would encryption be safe under the new law. A letter to the committee from the coalition of groups opposing the EARN It Act, observed the following about the revised bill:

 . . . most worrisome, the new language would amend Section 230 to exclude state civil and criminal laws from its protection. While it may seem like an innocuous change, the new language makes no mention of the scienter requirement of those state laws. If a state law makes it illegal to negligently or recklessly transport CSAM, interactive computer services will likely be unable to host user-generated content at all.

Worse, the new language potentially allows for state lawmakers to target important user-privacy features like end-to-end encryption. By excluding violations of state laws from the protections of Section 230, courts may make rulings that undermine the use of end-to-end encryption.

That outcome shouldn’t trouble Graham, as he’s made clear that he believes law enforcement should be able to breach encryption as long as it has a warrant, and to this end, he introduced separate legislation last week to end the use of  so-called “warrant-proof encryption,” which is practically the same thing as ending end-to-end encryption.

Under the EARN IT Act, many online platforms may be driven to ban all sex-related content and communications. https://t.co/aTaLQuDMoI

— The Advocate (@TheAdvocateMag) July 1, 2020

During the markup session, the ever-duplicitous Blumenthal — who previously was caught claiming to have “served in Vietnam,” when he in fact obtained five deferments from 1965 to 1970 — announced that Leahy’s amendment put to rest any concerns over encryption, (though it does not), and that the amended law was “not a meat axe” that “endangers free speech,” though it certainly is and does.

Blumenthal also falsely asserted that 230 offered a “blanket immunity” against “accountability,” which, again, is total bull, because 230 is not a shield against federal criminal law and never was. Blumenthal pulled this same trick while advancing what became FOSTA/SESTA, claiming the bill was necessary to upend 230 and thereby shut down the Craigslist-like listings behemoth Backpage.com, though the U.S. Justice Department achieved this unparalleled act of direct government censorship with existing federal statues (albeit, with a heaping helping of bad faith).

For the most part, the other Dems on the committee played Quisling, with ranking member Dianne Feinstein of California praising her colleagues for their “targeted approach,” and Leahy saying his qualified grace over the bill.

“We all agree that the EARN It Act is about targeting CSAM,” Leahy said. “It’s not about ending encryption.”

However, the octogenarian lawmaker hedged this statement, weirdly, by telling the committee that it was not necessary to “resolve whether the manager’s [read, Graham’s] amendment would allow a federal or state judge to effectively make encryption illegal.”

Come again? Either Leahy’s wording plugged the dike on encryption or it didn’t.  Here, he seems to be acknowledging that it’s still an open question.

Have Backbone, Will Travel

Sigh. It is always thus when dealing with Democrats, who often are either moral jellyfish when it comes to free speech and individual liberty, or duplicitous backstabbers such as Blumenthal. Those who’ve closely followed the 230 battles will recall that one Democrat in the Senate voted against FOSTA/SESTA — Oregon’s Ron Wyden, the guy who wrote 230 back in the day. One Republican joined him, the libertarian-leaning Rand Paul of Kentucky.

Bad news for freedom lovers as we approach Independence Day weekend: A bill compromising online speech and privacy just passed unanimously in the Senate's Judiciary Committee.https://t.co/s3nBDu5Ehp

— reason (@reason) July 2, 2020

Republicans often have more steel in their vertebrae. While the revamped EARN IT Act moved out of committee on a unanimous vote of 22-0, it was, unsurprisingly, not a Democrat who offered the sharpest critique of the bill, but a GOPer, Sen. Mike Lee of Utah, who told the committee that he would vote the proposed law out of committee, but would reserve his right to seek to improve the bill if he could and ameliorate its troubling parts.

Lee said he was “concerned with the broad sweep of the 230 provisions” in the bill and warned of basing a federal protection on “a patchwork quilt of inconsistent state laws that may be at odds with each other.”

He added,

Additionally, because of the nature of the internet, a patchwork quilt of state laws might allow for the most aggressive states to set the standards required for particular service provider.

This would essentially do the work of ending 230 protections entirely. This is the back door to regulations, such as those aimed at strong encryption, which many of us do not support and have raised concerns about in the past.

Why is it so difficult for Democrats to speak bluntly like this? You don’t have to go too far back in history to recall a time when Democrats defended the rights and freedoms of Americans, even when doing so was unpopular or could be used against them politically.

Alas, present day members of that party seem all too consumed by cowardice or political expediency to follow in the footsteps of their antecedents.

For more on this topic, please see:
Sen. Richard Blumenthal Receives ‘First Amendment Defender Award’ on Same Day He Introduces Pro-Censorship Bill
and
Senate Judiciary Hearing on Pro-Censorship EARN IT Act Ignores Free Speech, First Amendment Concerns