The Senate Judiciary Committee on Thursday unanimously advanced a bill tying legal protections for online platforms to efforts to combat child sexual abuse material.
The Eliminating Abusive and Rampant Neglect of Interactive Technologies (EARN IT) Act would amend Section 230 of the 1996 Communications Decency Act to allow federal and state claims against online companies that host child exploitation content.
Section 230, which has come under increased scrutiny since President Trump targeted it in an executive order in May, gives internet companies immunity from lawsuits for content posted on their sites by third parties and allows them to make “good faith” efforts to moderate content.
The legislation advanced on Thursday would create a government-backed commission to develop “best practices” for purging child sexual abuse material from the internet.
An earlier version of the bill had conditioned Section 230 liability protections on compliance with those best practices, but a manager’s amendment from Judiciary Committee Chairman Lindsey Graham (R-S.C.) and Sen. Richard Blumenthal (D-Conn.) removed that tie after intense criticism. The amendment was unanimously approved on Thursday.
Graham and Blumenthal’s amendment also removed a portion of the bill that would have opened up companies to lawsuits if they “recklessly” provided a service that was then used in the distribution of child exploitation.
Despite the unanimous approval of the amended measure, it still faces harsh opposition in the Senate and among some advocacy groups.
Sen. Ron Wyden (D-Ore.) slammed the new version of the bill Wednesday, saying it would do little to stop child sex abuse material online and also endanger encryption.
“Unfortunately, the new bill will do even less than the previous version to stop the spread of child sexual abuse material, target the monsters who produce and share it or help victims of these evil crimes,” he said. “By allowing any individual state to set laws for internet content, this bill will create massive uncertainty, both for strong encryption and free speech online.
Threats to encryption, which makes it impossible for companies or governments to access private communications between devices, have been a major sticking point for industry and privacy groups opposed to the legislation. Critics say the bill could force tech companies into creating backdoors for the government, which they say would be accessed by bad actors, in order to maintain Section 230 protections.
“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,” said Mike Lemon, senior director at the Internet Association, a trade group representing Silicon Valley in Washington.
“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,” he added.
Graham and Blumenthal both addressed the encryption concerns on Thursday.
“My goal is not to outlaw encryption,” Graham said, but later added that “if law enforcement organizations or intelligence operations obtain a lawful warrant, there has to be a way to get the information to protect public safety and our national security.”
“This bill is not about encryption and it never will be,” Blumenthal said, arguing that encryption can be compatible and consistent with a targeted approach.
The committee also adopted an encryption amendment offered by Sen. Patrick Leahy (D-Vt.). His amendment would exclude encryption from being factored into an online platform’s liability.
Critics worry, however, that even if the bill does not specifically make encryption a condition, the threat of lawsuits from state and federal regulators would dissuade companies from implementing encryption and make them unable to moderate some messages.
“By kicking the issue to the states, Sens. Graham and Blumenthal propose an even stealthier move to mandate backdoors to encryption,” Carl Szabo, vice president and general counsel at NetChoice, said in a statement. “EARN IT enables existing state laws to undermine encryption for every American, from coast to coast.”
Reports of child sexual exploitation online have skyrocketed in recent years, as criminals use platforms like Facebook, Twitter and YouTube to spread images and videos.
Some lawmakers have proposed legislation that would tackle child sexual abuse material online without affecting Section 230.
Wyden and Rep. Anna Eshoo (D-Calif.) introduced the Invest in Child Safety Act in May, which would provide $5 billion in investigations of the content and create a White House office to coordinate efforts to track it.