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Terrible, Dangerous EARN IT Act Set To Move Forward In The Senate; Attack On Both Encryption And Free Speech Online

The attacks never stop. After rumors last week, the Senate Judiciary Committee has officially put the EARN IT Act onto the schedule for this week, though many expect that it will get held over and marked up next week on July 2nd, which, conveniently, is a neat time to sneak through legislation when lots of people are not paying any attention (right before July 4th). In short, this means that there's a decent chance the EARN IT bill will be moving forward and could potentially pass.

This would be very, very bad. I won't go back over everything in it, but the general intent of the bill is to undermine both encryption and Section 230 by trying to make Section 230 dependent on not offering encryption. That's at the highest level. Now, the bill is written in a sneaky way to let some Senators pretend it won't impact encryption, since encryption is not mentioned in the bill. However, the bill does condition 230 protections on meeting certain "best practices" that would be developed through a process mostly controlled by the Attorney General, who has made it clear his number one priority regarding the internet is to kill off real encryption. As we've discussed, the EARN IT Act creates a very dangerous moderator's dilemma that will act to suppress both free speech online and the ability to communicate securely and privately.

And beyond moving forward with such a bad proposal, and trying to sneak it through during a holiday week, it's astounding that this is happening right at the very moment when more people than ever are relying on the internet to work from home -- a situation in which open speech platforms and strong encryption are more important than ever. Indeed, Senator Blumenthal, one of the sponsors of the bill who insisted it wouldn't be used to target encryption, is the same senator who got angry when he found out Zoom video calls weren't end-to-end encrypted.

If he wants to support encryption and promise that EARN IT won't be used to undermine encryption, he should write that explicitly into the law.

In short, the EARN IT Act would:

  • Put encryption, privacy, and cybersecurity at risk at a time when we need all three things more than ever.
  • Put free speech and open internet platforms at risk, at a time when people need to be able to speak out more than ever.
  • Not do a damn thing to actually make anyone safer
  • Create a constitutional mess, that might even make it easier for bad actors to get away with things by turning companies into state actors with regards to private info, thereby creating 4th Amendment issues regarding disclosure of information.
It is extremely unclear why anyone thinks (1) this is a good bill, or (2) it needs to move forward right now. But, since everyone wants to hate on Section 230 right now, none of that seems to matter.

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