The Senate just revived its most divisive Section 230 bill

Sens. Lindsey Graham and Richard Blumenthal have reintroduced their controversial Section 230 reform bill, the Earn It Act, which seeks to chip away at tech platforms' legal immunity when it comes to child sexual abuse material online.

The bill, which was first introduced in 2020, has widespread bipartisan support in the Senate. But it's been panned by both the tech industry and internet rights advocacy groups, which argue it could wind up weakening encryption and putting marginalized communities at risk.

“The modern internet is infested with stomach-churning images of children who have been brutally assaulted and exploited, and who are haunted by a lifetime of pain after these photographs and videos are circulated online," Blumenthal said in a statement. "Tech companies have long had ready access to low-cost, or even free tools to combat the scourge of child sexual abuse material but have failed to act."

Currently, Sec. 230 allows platforms to be liable for violations only under federal criminal law, effectively shielding them from a range of other lawsuits that could potentially be brought at the state level. The latest version of the Earn It Act would remove Sec. 230 immunity from state and federal civil laws, as well as state criminal laws, regarding child sexual abuse material. The Earn It Act would also create a new National Commission on Online Child Sexual Exploitation Prevention, comprising the heads of the DOJ, DHS and FTC, as well as more than a dozen other members appointed by Congress.

This commission would develop a set of "best practices" for companies to abide by related to online child sexual exploitation. The earliest drafts of Earn It would have required companies to adhere to those best practices in order to receive Sec. 230 immunity. That proposal sent fear through the hearts of the tech industry and civil liberties community alike, as some worried that the commission, stacked with law-enforcement officials, would use its newfound power to require tech platforms to weaken encryption in the name of protecting kids.

The bill's sponsors amended that proposal to make the best practices voluntary, a concession that has failed to satisfy some of the Earn It Act's biggest critics. "I see that as a way to just sort of hide the ball, but by stacking the standard-setting body with law enforcement types they're all but ensuring that one of the 'best practices' will be not offering end-to-end encryption, or doing some kind of client-side scanning," said Evan Greer, director of advocacy group Fight for the Future. "Disincentivizing large platforms from offering end-to-end encryption by default is arguably one of the worst things any government could do in regards to online safety."

Greer pointed to reports on the dangerous impact SESTA/FOSTA has had on the lives of sex workers as evidence of the unintended consequences of tinkering with Sec. 230.

The reintroduction of Earn It has also prompted a backlash from tech lobbyists, who say Sec. 230 already allows the federal government to go after platforms that commit crimes. “Section 230 is no barrier to the federal prosecution of companies that illegally facilitate or fail to meet their legal obligations to combat the distribution of abuse material online," CCIA President Matt Schruers said in a statement. "While digital services already report millions of pieces of illegal content per year, the prosecution of perpetrators has dwindled."

Earn It's supporters, however, have argued that such a bill would broaden the pool of potential enforcers and create some guidelines for companies that may not be actively participating in illegal conduct, but aren't adequately defending against it either.

The bill had strong momentum when it was first introduced in 2020, propelled in part by a heartrending hearing that featured testimony from a mother of a victim of child sexual exploitation. But the urgency expressed during that hearing — on March 11, 2020 — was quickly scuttled as the COVID-19 crisis scrambled Congress' priorities. The bill managed to unanimously pass the Senate Judiciary Committee that July, but stalled after that.

It's being reintroduced now with an even longer list of co-sponsors at a time when bipartisan interest in protecting kids online has never been higher. The Senate Judiciary Committee has already slated the bill for markup this week.