Content Moderation 07/02/2020

EARN IT Act: Third time’s still not the charm

Chris Marchese
Chris Marchese Counsel

The third iteration of EARN IT is even worse than its predecessors. Although Sens. Graham and Blumenthal claim their new draft responds to constitutional and privacy problems, it actually doubles down on them. Indeed, despite the bill’s best attempt to cloak its radical effects under the camouflage of protecting children, it will make the internet less safe for all of us, including our children:

The bill still threatens encryption and privacy by letting states pass laws that ban encryption or that make end-to-end encryption a violation of child exploitation laws

  • Overview: This is an even stealthier backdoor to encryption mandate as Congress is punting the knowledge requirements to the states
  • Here’s How:
    • Under current federal law, tech companies are liable for child sexual abuse material (CSAM) when they knowingly host it.
    • This bill keeps the “knowing” mens rea for federal crimes, but it allows states to enforce their laws and lets those states define their own mens rea, meaning it could be even lower than recklessly, which was the proposed standard in EARN IT 2.0 (Mar. 2020 version).
    • If the DOJ wants to force online services to implement a backdoor encryption (and we know AG Barr does want that), it will simply work with a state to pass a law to that effect.
  • Bottom Line: The bill tries to avoid the encryption issue by kicking the issue to the states so that they assume the blame for weakening encryption.

The bill still poses Fourth Amendment problems, potentially allowing defendants accused of child exploitation crimes to go free.

  • Overview: Whenever the government encourages private parties to search for evidence of criminal wrongdoing, those searches are subject to the Fourth Amendment, including the “Exclusionary Rule.” Under that rule, evidence collected in violation of the Fourth Amendment (i.e., without a warrant) is inadmissible at trial.
  • Here’s How:
    • Although the bill no longer conditions Sec. 230 immunity on compliance with the commission’s “best practices,” it lets states reduce the mens rea for CSAM to “reckless” (or even lower).
    • That means it could be “reckless” for companies not to search for CSAM. With so much potential liability, companies will be strongly encouraged to search for CSAM. And because federal law requires companies to report all instances of CSAM that they find, that federal law, combined with state laws and EARN IT, has Fourth Amendment implications.
    • Bottom Line: EARN IT jeopardizes current federal law, which is a constitutionally delicate system that lets companies voluntarily search for CSAM and report it. But now, EARN IT risks transforming that voluntary impetus into a “do-this-or-else” approach that puts millions of pieces of evidence at risk of exclusion.

The bill poses even greater First Amendment and Fifth Amendment problems.

  • Overview: The bill holds companies liable for advertising, promoting, presenting, distributing, or soliciting CSAM. Because these terms are not clearly defined, they risk infringing on constitutionally protected speech and criminal prosecutions of conduct that is not clearly illegal.
  • Here’s How:
    • Under current law, possession and distribution of CSAM is illegal. This is a clearcut law. But the new bill expands that liability to vague actions like “promoting.”
    • FOSTA/SESTA, passed in 2018, is already being litigated for First Amendment violations because that law also uses vague terms like “promoting.” The D.C. Circuit has held that there’s a credible case to be made that vague terms like that could chill constitutionally protected speech. Indeed, this has been the case time and again when Congress tries to regulate internet speech in the name of protecting children–see, e.g., Ashcroft v. Free Speech Coalition (2002).
    • What’s more: Criminal laws must give clear guidance on which conduct is permissible and which isn’t. Laws that aren’t clear risk being “void for vagueness” under the Fifth Amendment because they don’t give notice of what’s illegal. Here, the bill doesn’t define what these terms mean, let alone give standards for state laws.
  • Bottom Line: The bill will chill constitutionally protected speech, just like we’re seeing with FOSTA/SESTA. And the bill risks giving criminal defendants yet another means to challenge their convictions.

Despite having months to revise their draft, Sens. Graham and Blumenthal are rushing a highly flawed bill through the Senate Judiciary Committee. Like its prior drafts, this version of the bill will still do more harm than good. It shouldn’t become law.

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