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Politics

Amendments to the EARN It Act could resolve its encryption issues

But they probably don't go far enough to appease the tech industry.

​Republican Sen. Lindsey Graham

Republican Sen. Lindsey Graham plans to amend the EARN IT Act to address some of the concerns raised by tech advocates.

Photo: Courtesy of Gage Skidmore

The chairman of the Senate Judiciary Committee is planning to amend the controversial EARN IT Act to address some of the concerns raised by tech advocates who said it could enable the government to require "backdoors" into private, encrypted messages for law enforcement.

On Wednesday, the committee published a "manager's amendment" from the Senate Judiciary Committee Chairman, Republican Sen. Lindsey Graham, and Democrat Sen. Richard Blumenthal. Under the proposed package, which is set to go before the committee during a bill markup on Thursday, the EARN IT Act would no longer make Section 230 immunity conditional on compliance with government-mandated "best practices" for removing child sexual abuse material.

Critics for months have railed against the EARN IT Act, warning that the commission-backed "best practices" created by the bill could have required tech companies to allow the government to access encrypted messages in exchange for legal protections under Section 230. They also claimed the commission's recommendations could violate the Fourth Amendment if they required companies to search for particular kinds of content.

Under the amendment, the bill would still create a government-backed commission to draw up "best practices" around removing child exploitation from the internet, but those recommendations would be voluntary rather than legally required.

The EARN IT Act would still amend Section 230 to allow federal and state claims against internet companies if they host child sexual abuse material, but it would not empower the commission to make potentially unconstitutional demands of the companies.

"Service providers will now be treated like everyone else when it comes to combating child sexual exploitation and eradicating [child sexual abuse material]," a Senate Judiciary Committee aide told Protocol in an email.

If the amended bill is passed, the EARN IT Act, the most serious congressional threat to Section 230 since SESTA/FOSTA, would require online companies to seriously crack down on online child sexual abuse material.

The amendment would also remove a provision that would have left the companies vulnerable to significantly more lawsuits. Previously, the EARN IT Act would have left online platforms liable for a broad set of federal civil penalties if they "recklessly," rather than "knowingly," provided a service that was used to distribute child sexual abuse material. The amendment removes that proposed "reckless" standard.

"The EARN IT Act remains a deeply flawed proposal that would make it harder for IA member companies to rid the internet of [child sexual abuse material] and protect the most vulnerable online," said Mike Lemon, the senior director of federal government affairs with the Internet Association. "The internet industry appreciates that the bill's authors now recognize the serious Fourth Amendment concerns raised by the EARN IT Act, as introduced, and continues to share their goal of ending child exploitation online. However, the proposed manager's amendment to the EARN IT Act replaces one set of problems with another by opening the door to an unpredictable and inconsistent set of standards under state laws that pose many of the same risks to strong encryption."

Reports of child sexual exploitation online have skyrocketed in recent years, as criminals use popular platforms including Facebook, Twitter and YouTube to spread images and videos of minors in violation of federal law. But so far, the companies have been largely insulated from legal action over the child sexual abuse material due to Section 230 protections. The EARN IT Act would leave them open to a wave of lawsuits.

Protocol | Fintech

Marqeta turns to a fintech outsider

Randy Kern, a Salesforce and Microsoft veteran, is taking a plunge into the payments world.

Randy Kern is joining Marqeta after decades at Microsoft and Salesforce.

Photo: Marqeta

Marqeta has just named a new chief technology officer. And it's an eyebrow-raising choice for a critical post as the payments powerhouse faces new challenges as a public company.

Randy Kern, who joined Marqeta last month, is a tech veteran with decades of engineering and leadership experience, mainly in enterprise software. He worked on Microsoft's Azure and Bing technologies, and then went on to Salesforce where he last served as chief customer technology officer.

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Benjamin Pimentel

Benjamin Pimentel ( @benpimentel) covers fintech from San Francisco. He has reported on many of the biggest tech stories over the past 20 years for the San Francisco Chronicle, Dow Jones MarketWatch and Business Insider, from the dot-com crash, the rise of cloud computing, social networking and AI to the impact of the Great Recession and the COVID crisis on Silicon Valley and beyond. He can be reached at bpimentel@protocol.com or via Signal at (510)731-8429.

As President of Alibaba Group, I am often asked, "What is Alibaba doing in the U.S.?"

In fact, most people are not aware we have a business in the U.S. because we are not a U.S. consumer-facing service that people use every day – nor do we want to be. Our consumers – nearly 900 million of them – are located in China.

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J. Michael Evans
Michael Evans leads and executes Alibaba Group's international strategy for globalizing the company and expanding its businesses outside of China.
Protocol | Policy

What can’t Jonathan Kanter do?

Biden's nominee to lead the DOJ's antitrust section may face calls to remove himself from issues as weighty as cracking down on Google and Apple.

DOJ antitrust nominee Jonathan Kanter's work as a corporate lawyer may require him to recuse himself from certain cases.

Photo: New America/Flickr

Jonathan Kanter, President Joe Biden's nominee to run the Justice Department's antitrust division, has been a favorite of progressives, competitors to Big Tech companies and even some Republicans due to his longtime criticism of companies like Google.

But his prior work as a corporate lawyer going after tech giants may require him to recuse himself from some of the DOJ's marquee investigations and cases, including those involving Google and Apple.

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Ben Brody

Ben Brody (@ BenBrodyDC) is a senior reporter at Protocol focusing on how Congress, courts and agencies affect the online world we live in. He formerly covered tech policy and lobbying (including antitrust, Section 230 and privacy) at Bloomberg News, where he previously reported on the influence industry, government ethics and the 2016 presidential election. Before that, Ben covered business news at CNNMoney and AdAge, and all manner of stories in and around New York. He still loves appearing on the New York news radio he grew up with.

Protocol | Enterprise

Couchbase plots escape from middle of database pack with $200M IPO

The company has to prove it can beat larger rivals like MongoDB, as well as fast-growing competitors like Redis Labs, not to mention the big cloud companies.

Couchbase celebrates its initial public offering on the Nasdaq market.

Photo: Nasdaq

At first glance, Couchbase appears to be stuck in the middle of the cloud database market, flanked by competitors with more traction and buzz. But fresh off a $200 million IPO Thursday, CEO Matt Cain relished the opportunity ahead to prove why his company can beat out rivals the market considers more valuable.

The NoSQL database provider's public offering helped propel Couchbase to a $1.2 billion valuation. But unlike one of the last big data-related IPOs, market leader Snowflake's historic debut on the public markets last December, Couchbase has some work to do to differentiate itself.

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Joe Williams

Joe Williams is a senior reporter at Protocol covering enterprise software, including industry giants like Salesforce, Microsoft, IBM and Oracle. He previously covered emerging technology for Business Insider. Joe can be reached at JWilliams@Protocol.com. To share information confidentially, he can also be contacted on a non-work device via Signal (+1-309-265-6120) or JPW53189@protonmail.com.

People

SPACs are so Q1 and other takeaways from a disorienting year in IPOs

Amid the frenzy of tech IPOs this year, a few surprising discoveries stand out.

Through it all, the house always wins.

Image: CSA Images/Getty Images

2021 is shaping up to be a disorienting year for tech IPOs. The first six months brought us the Alex Rodriguez SPAC, an $85 billion Coinbase debut and a mysterious delay in the Robinhood S-1 filing that was ultimately cleared up when the firm paid a token fine.

Amid the recurring frenzy, it's easy to slip into a familiar pattern of analysis: Wait for an S-1 to drop, react to the financial disclosures, then see whether the stock "pops" after its trading debut. By the time one stock starts trading, several tantalizing new S-1s are already up for inspection. The problem with this cycle is that it stops too early: A stock's opening-day pop only really reflects the extent to which a few overworked investment bankers underestimated investor demand. A pop makes for headlines. It doesn't make a company.

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Hirsh Chitkara
Hirsh Chitkara (@ChitkaraHirsh) is a researcher at Protocol, based out of New York City. Before joining Protocol, he worked for Business Insider Intelligence, where he wrote about Big Tech, telecoms, workplace privacy, smart cities, and geopolitics. He also worked on the Strategy & Analytics team at the Cleveland Indians.
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