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First there was SESTA. Now LGBTQ+ activists worry about Earn It.

Protocol Policy

Hello, and welcome to Protocol Policy! The Earn It Act is full of the big words and lofty legal concepts we love here. What it’s really about, though, is whether we can get rid of the worst of social media without hurting the best — and the hope that we can help one group of voiceless people without harming another. I’m Ben Brody, and I’m a blast at parties. Or, at least, D.C. ones.

Once more unto 230

The latest bipartisan measure to rein in tech, the Earn It Act, is officially headed to the Senate floor (again). Plenty of analysis has focused on how the measure to combat child sexual abuse material (CSAM) could undermine encryption, but LGBTQ+ activists and sex workers say it’s a danger to them too.

What’s the bill about?

  • It starts with Section 230, which, as we’ve all heard by now, gave social media the space to flourish by allowing platforms to escape liability for user-generated content.
  • That can mean horrific, internet-scale harm with little legal recourse — and victim and survivor groups, world governments and even hardware companies are getting sick of it.
  • Although platform companies have made advances in stopping CSAM, it’s easy to come away from reading victims’ complaints with the feeling websites and apps rely on careful parsing of the law to avoid doing more.

"Our goal is to tell the social media companies: 'Get involved and stop this crap,'" Sen. Lindsey Graham, the bill’s lead Republican sponsor, said yesterday.

  • So Earn It would create a commission of experts to come up with best practices the platforms can use to combat CSAM.
  • Crucially, it would make clear Sec. 230 allows states to open up platforms to prosecution and lawsuits with laws on the “advertisement, promotion, presentation, distribution, or solicitation” of CSAM.

Unfortunately, that could target more LGBTQ+ content than people might expect, experts say, depending on how states elaborate on the federal definition of CSAM.

  • Conservatives have tried to classify the highest standards of medical care for transgender minors as child abuse, for instance.
  • If Earn It were passed, state legislators might next try to shoehorn content about LGBTQ+ youth into federal law’s narrow CSAM definitions.
  • “Politicians and activists who seek to drive trans people out of public life have already demonstrated that they will use any tools at their disposal,” said Olivia Hunt, senior policy counsel at the National Center for Transgender Equality. “The Earn It Act would embolden them to find new ways to censor our communities online.”

Right now, CSAM liability focuses on content that platforms know about, perhaps through a report. But under Earn It, state laws could even target content floating around, unbeknownst to the platforms, somewhere among billions of posts.

  • The bill’s main Democratic sponsor, Sen. Richard Blumenthal, celebrated the possibility on Thursday.

That’s a big reason why platforms may decide, no matter what states do, to prohibit a deliberately broad swath of content as a way to be extra-sure they’re right with the law.

  • LGBTQ+ and sex worker activists spent early 2018 warning that SESTA–FOSTA, a law that amended Sec. 230 to rein in online sex trafficking, would prompt platforms to limit or ban sex education, legal pornography, safety measures for sex workers and adult- and queer-themed comedy. It did just that.
  • “[Earn It] is going to have a chilling effect on LGBTQ content,” said Tyrone Hanley, director of Racial and Economic Justice Initiatives at the National Center for Lesbian Rights. “And online community is so important for LGBTQ people.”

Unfortunately, it’s famously hard to precisely define the kinds of content we want to get rid of, and that can leave important, and even beautiful, speech in danger. Even as legislation tries to combat harms against one vulnerable group, it often risks silencing others. On Earn It, LGBTQ+ activists say they can’t be quiet about that.

— Ben Brody (email | twitter)

In Washington

Sens. Amy Klobuchar and Cynthia Lummis introduced a bill giving the FTC power to impose new rules on social media companies. The Social Media Nudge Act hopes to curb tech addiction and prevent the spread of harmful content by tasking the research community with coming up with “content-neutral” ways to add friction to social platforms, and tells the FTC to mandate them.

Mike Bloomberg has been named chair of the Pentagon’s Defense Innovation Board. The position was also held by Eric Schmidt. In the role, Bloomberg and the board provide the secretary of Defense and other Pentagon officials with advice on issues related to technology.

Progressive groups have been pretty quiet about the possibility that the Senate antitrust bills might hurt platforms’ ability to moderate content. Part of that has to do with different interpretations of the bills, but there’s also a real wariness about scaring Republican supporters away.

A bipartisan bill would allow consumers to request their information be deleted from all data brokers. This might sound like it's not necessary, since Congress is trying to give people the ability to prevent companies they patronize from sharing their data. There are few easy ways, however, for consumers to quickly claw back their information from the vast network of third parties they have no relationship with that already buy, sell and repackage their data.

Very mysterious: Two Senate Democrats released a letter claiming “the CIA has secretly conducted” a program collecting “bulk” data on Americans. The lawmakers, who sit on the panel overseeing the intelligence community, didn’t say what the data is. But they allege U.S. spymasters’ activities existed “entirely outside the statutory framework that Congress and the public believe govern this collection.”

In the states

California’s Department of Fair Employment and Housing is accusing Tesla of having a “racially segregated workplace.” The new lawsuit is based on employee complaints of being “subjected to racial slurs” and other forms of discrimination. Tesla has called the suit “misguided.”

The hidden hand of the app market? An Arizona state lawmaker leading the landmark app store bill there blamed “pressure from Big Tech” for its failure. A fellow Republican had reversed his previous support for the measure, dooming it.


From Florida to Texas to Oklahoma, lawmakers are introducing and passing legislation aimed squarely at social media platforms’ content moderation policies in an effort to keep hate speech and misinformation online. Read the latest on the spread of anti-content-moderation bills in the states.

Learn more

In the courts

Meta is in hot water in Northern California, where a judge invited plaintiffs to seek sanctions against Facebook’s lawyers. During a hearing Thursday, federal District Judge Vince Chhabria accused Facebook and its lawyers of stonewalling discovery in a class-action suit springing from the Cambridge Analytica scandal.

Europe’s leading ad-tech association, IAB Europe, is appealing Belgium’s recent ruling that stands to kill the cookie pop-up as we know it. “This establishes an irrational legal precedent,” IAB Europe CEO Townsend Feehan said.

On Protocol

Apple added a warning to AirTags saying the devices should only be used to track personal items. The new label comes in response to reports that AirTags are frequently used for stalking. As Protocol’s Veronica Irwin rightly asks of the legality notice: “Don’t stalkers already know that?”

What should you expect on Sunday (besides the Bengals winning, of course)? Crypto ads, and lots of them. They’ll come in even as some suggest tougher rules for crypto ads to protect consumers. The U.K. is planning its own crackdown and has already banned several ads that were ruled irresponsible.

One VPN away from the ’gram: Olympic gold-medal skier Eileen Gu dismissed an Instagram commenter who questioned internet freedoms in China. “[A]nyone can download a vpn its literally free on the app store,” wrote Gu. Ironically, screenshots of the post were then scrubbed from Weibo. The 18-year-old has faced an unrelenting media firestorm over her decision to represent China rather than the U.S. in the Olympics.

In the C-suite

Could this be the toughest job in tech? Meta is hiring a “strategic response writer” to help the company defend against “specific charges.” Must have five years’ experience, a bachelor's degree and, we’re guessing, a high pain threshold.

Scrambled or fried, Mr. Bezos? Residents of Rotterdam are reportedly planning to egg Jeff Bezos’ super-yacht if it passes under a historic city bridge. It was originally reported that Rotterdam would dismantle the Koningshavenbrug, built in 1878, to make way for the $485 million vessel. After backlash, the Rotterdam mayor insisted a decision has yet to be made.


Autonomous vehicles can help the United States address issues of mobility, traffic safety, and climate change. Read the latest analysis on how AVs stand to benefit communities across the country.

Learn more

It’s all Patagucci

The Cold War brewing between venture capitalists and Patagonia finally spilled out into the open. “I only wear vests from companies that like my kind,” Marc Andreessen tweeted on Thursday (and has since deleted), responding to a “starter pack” meme that had the notable absence of a Patagonia vest. (It did have Woody’s Head Wax for $15.99, in case you were wondering how to steal that iconic look.)

Thanks for reading — see you Monday!

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