EARN IT Act, Impacting Section 230, Advances in Senate with New Encryption Amendment

June 2, 2020 —The heavily contested Eliminating Abusive and Rampant Neglect of Interactive Technologies Act advanced out of the Senate Judiciary committee, with the addition of a new amendment.

During a Thursday hearing, Sen. Patrick Leahy, D-Vt., pushed for an amendment that would ban state and federal officials from undermining platforms encryption practices when implementing the bill.

The bill has been widely critiqued as a Trojan horse for the Department of Justice’s longstanding anti-encryption agenda. Critics fear that certain provisions could force companies to abandon encryption protections.

Leahy’s amendment addressed the encryption issue, increasing bipartisan support for the bill.

“My goal is not to end encryption — my goal is to begin to challenge child porn” said Senator Lindsey Graham, R-S.C. “This bill is not about encryption and it never will be.”

The EARN IT Act, initially introduced on March 5 by co-sponsors Graham and Sen. Richard Blumenthal, D-Conn., would revoke platforms’ Section 230 immunity in instances of child pornography if they fail to comply with a set of best practices for fighting child exploitation online.

Screenshot of Sen. Richard Blumenthal from the webcast

The best practices would be developed by an unelected 19-member commission under the direction of the attorney general, who would have the authority to approve or reject them.

This raised concern among members, including Sen. John Neely Kennedy, R-La., who said, “I don’t want any government to define ‘poison,’” referring to what content should or should not be moderated.

The bill’s sponsors maintained that its goal is to hold social media sites accountable.

“There is no reason for these platforms to have blanket immunity that is not enjoyed by any other industry,” Blumenthal said.

Senators on both sides withdrew amendments they planned to fight for in order to conduct a swift vote.

Sen. Christopher Coons, D-Del., considered an amendment to increase the level of funding for programs that help prevent the traumatization of child pornography victims.

Graham pledged that there would be future opportunities to further negotiate the language of the bill in response to Sen. Mike Lee, R-Utah, who argued for the necessity of fine tuning some of the bill’s provisions.

The passage of the bill sends a warning sign to Silicon Valley that there is overwhelming bipartisan concern over Section 230 and that companies’ immunity has the potential to be threatened.