Content Moderation 07/02/2020

The unintended consequences of EARN IT’s fourth try

Carl Szabo
Carl Szabo Vice President and General Counsel

No matter the version of the EARN IT Act, one thing holds true: The legislation is rushed and full of unintended consequences. Although we applaud Senator Leahy’s efforts to protect encryption, the bill still risks evidence of child exploitation being excluded from trial under the Fourth Amendment, still undermines digital privacy, and still hurts those it’s meant to protect: children.

EARN IT 4.0 undermines privacy by forcing platforms to read all emails and watch our Zoom calls.

  • Overview: While the Leahy Amendment might stop firms being held liable for the contents of encrypted communication (we’re still analyzing the amended bill’s impact on encryption, so this isn’t certain), the Committee failed to clarify which state criminal and civil laws apply. So, we know companies that don’t encrypt will be liable unless they search through their users’ data and communications. This means reading through our personal emails and watching our Zoom calls, and any other communication that is unencrypted
  • Here’s How:
    • The bill lets states prosecute their own child-exploitation laws, and lets plaintiffs sue companies in civil court. Although federal law uses a “knowing” standard–i.e., a company knowingly violates child-exploitation laws–some states do not. Indeed, Illinois makes it a crime to recklessly fail to inspect someone’s content.
    • Under the Illinois law, a company that encrypts might be protected by Sen. Leahy’s amendment. Companies that don’t encrypt will have a legal duty under that same law to inspect its users data and communications. If that company doesn’t, then it could be held recklessly liable in criminal and civil cases.
    • Bottom Line: The bill lets states like Illinois set a national standard for how companies search and screen for CSAM. That’s because most tech companies operate in all 50 states, so they’d need to implement policies and protocols that comply with the most aggressive state’s laws. That creates a bizarre problem: companies that encrypt might be protected, but companies that don’t encrypt certainly aren’t. So the companies that don’t encrypt could move toward encrypting everything (meaning less evidence is sent to NCMEC), or they’ll be held liable for not searching through all the data of all their users for CSAM because they don’t encrypt.

The new version makes the Fourth Amendment problems even worse.

  • Overview: As explained above, the bill encourages to search for CSAM, lest they be held liable under state laws with lower mens rea requirements (like Illinois’ failure to inspect). So companies that don’t encrypt everything will now have a very strong incentive to inspect everything that’s not encrypted. That government encouragement transforms those private searches into government searches, raising the exact same Fourth Amendment issues as the last version of EARN IT.
  • Here’s How:
    • Under current law, companies are required only to report known instances of CSAM. With the exception of the 10th Circuit (in an opinion written by then-Judge Neil Gorsuch), most courts have upheld this arrangement because the actual search that preceded the finding of CSAM was done voluntarily.
    • But EARN IT allows states like Illinois to apply their laws, while also encouraging states to change their laws to ease the intent requirement, which encourages companies to search.
    • Under Supreme Court precedent, private searches are subject to the Fourth Amendment when the government encouragesthose searches. And under the Exclusionary Rule, evidence collected in violation of the Fourth Amendment is generally inadmissible in court.
    • Bottom Line: EARN IT not only encourages searches in violation of the Fourth Amendment, it explicitly requires those searches in states that use a lower mens rea (e.g., “reckless,” “intentional,” strict liability). This means in future CSAM cases, evidence submitted by platforms will be inadmissible in court.

By rushing to pass EARN IT in under an hour before a holiday weekend, the Senate Judiciary didn’t catch glaring problems and perverse incentives that, taken together, make the problem worse, not better. At this point, we can hope only that the full Senate Chamber slows down and fixes these problems.

Next Post Key takeaways from The EARN IT Act: The Bill Still Threatens Our Online Freedoms and New Amendments Don’t Fix It