WASHINGTON (July 2, 2020) — Today the Senate Judiciary Committee is marking up the EARN IT Act, a currently pending bill that constructs a federal commission for establishing best practices for online platforms on dealing with child sexual abuse material and ties online platforms’ eligibility for liability protection under Section 230 to compliance with those best practices. The manager’s amendment, scheduled to be formally introduced at a Committee markup, changes the commission’s best practices to be advisory rather than legally operative, rolls back portions of Section 230, and makes additional changes.

The following may be attributed to Jeffrey Westling, resident fellow for technology and innovation policy at the R Street Institute:

“While we appreciate the Committee’s willingness to address the many defects in the original EARN IT Act, this minutes-to-midnight manager’s amendment changes massive portions of the legislation with insufficient vetting of its ramifications. We hope that the Committee and Senate leadership will not rush this bill through and instead take a measured, multi stakeholder approach to reach consensus on the right way forward for dealing with the serious problem of online protection of children.

“The manager’s amendment, to its credit, responds to strong pressure from a wide coalition of civil society, criticizing the legality, constitutionality, and efficacy of the EARN IT Act. The removal of legal authority of the bill’s commission in particular substantially decreases the possibility that the Department of Justice would wield its newfound authority to hamper important technologies such as strong encryption. Furthermore, extending the amount of time that a provider of a report to the CyberTipline may preserve the contents of the report from 90 to 180 days is a positive step towards reducing the proliferation of CSAM, as algorithms detecting the content need it in order to learn how to identify it.

“That said, the medicine of the amendment may be worse than the ailments of the original bill. By rolling back Section 230 protections, the bill enables states to invent new forms of legal liability that could balkanize the online sphere and create uncertainty for years to come. Worse, the additional threat of liability could threaten encryption services regardless of the scienter requirement of any state law as platforms worry that providing the service would cut against them in a lawsuit under the new liability regime.

“The dramatic changes in this bill demand more time for public dialogue, which the proponents of the bill have failed to give by releasing this amendment less than 48 hours before scheduled markup. Civil society groups such as the R Street Institute are willing to engage productively on the bill, as we have so far, if the Committee gives us the time and opportunity to do so. We hope that the Committee will work together with the community to develop strong, effective legislation, rather than pushing forward an unvetted bill without sufficient debate.”

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