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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.

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Emily Birnbaum ( @birnbaum_e) is a tech policy reporter with Protocol. Her coverage focuses on the U.S. government's attempts to regulate one of the most powerful industries in the world, with a focus on antitrust, privacy and politics. Previously, she worked as a tech policy reporter with The Hill after spending several months as a breaking news reporter. She is a Bethesda, Maryland native and proud Kenyon College alumna.

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