Key takeaways from the analysis
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Overview
That threat is inherent to this legislation; no amount of amendments can fix it. And here’s the kicker: it still won’t guarantee children’s safety online.
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The only way to fix a bill like this is by throwing it out.
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Makes stopping CSAM harder
What the July 2 changes do incentivize is more encryption, because Leahy’s amendment tries to create an encryption safe harbor….Doing so would reduce the effectiveness of providers’ current anti-CSAM efforts, such as the automated scanning tools many providers currently voluntarily use on files shared or stored on their services.
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No version of the EARN IT bill is going to make those dark web services bat an eye.
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4th Amendment Problems are real — allowing bad actors to escape justice
Irrespective of compliance, nobody can qualify for continued 230 immunity for CSAM anymore. Providers are damned if they do (follow the best practices) and damned if they don’t.
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I don’t know anything about state-level CSAM laws, but if there are any that would require monitoring and filtering in order for the provider to avoid liability, then a provider might choose to do so. Not only would that be a huge invasion of all users’ privacy, it also would convert the provider into a state actor. That is, by opening up liability under state laws, EARN IT may be creating a whole new Fourth Amendment state actor problem, separate and apart from the bill’s own language or the best practices.
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Not a silver bullet to address encryption and security problems
Leahy’s encryption amendment isn’t all it’s cracked up to be…. It’s not as strong as it purports to be
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it’s not the silver bullet that some are holding it out as in terms of answering critics’ concerns about how EARN IT could potentially discourage encryption and harm cybersecurity.
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But the text is only about encryption. What about other kinds of cybersecurity protection?
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What about mechanisms for accessing otherwise-encrypted information that technically “don’t touch the encryption,” such as the ghost user proposal, client-side scanning, or the custom version of iOS that the FBI tried to force Apple to create in the 2016 “Apple vs. FBI” showdown?
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Not narrowly tailored, but incredibly broad
Any service that gives users the ability to talk to each other (think social media, chat rooms, messaging apps, video conferencing services, voice calling apps); the ability to post online ads seeking to buy or sell stuff (think craigslist); the ability to post images (think Tumblr); the ability to share files (think Dropbox) – all of these could be misused by users, rendering the provider liable under one or more laws.
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1st Amendment Problems are real
But FOSTA violates the First Amendment, and so does EARN IT.
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Even if the speech covered by the law could be restricted without raising constitutional concern, the content moderation practices the companies will deploy to avoid liability risk will sweep far more broadly than the illegal content.”
