A look at recent changes to the pending EARN IT Act bill, and why even with these amendments, it poses a serious threat to the freedom of speech online
Riana Pfefferkorn / The Center for Internet and Society :
Context & Ripple Effects
When the bipartisan EARN IT Act was introduced in March 2020, its core trade was explicit: companies would have to earn their Section 230 protections by complying with government-set standards on child exploitation, at a documented cost to data privacy. This analysis by Riana Pfefferkorn examines the amendments since added to the pending bill and concludes they do not remove the underlying threat.
The argument matters because it became the durable critique of the bill: when EARN IT was reintroduced in Congress two years later, opponents were still citing the same FOSTA-modeled structure and its risks to speech, privacy, and encryption — and the Senate Judiciary Committee went on to advance it anyway despite those concerns.
First-order effects
- Platforms hosting user content face a conditional Section 230: meet state-approved exploitation standards or lose immunity, which pushes them toward over-removal and away from encryption-backed privacy features.
- For Riana Pfefferkorn and other Section 230 defenders, the amendments narrow but do not eliminate the attack surface — the bill still ties platform legal exposure to compliance criteria set outside the firms themselves.
Second-order effects
- Passage would validate the FOSTA playbook — carve out an exception to intermediary immunity in the name of fighting exploitation — giving lawmakers a repeatable template, one already echoed by Democratic senators' SAFE TECH Act eroding Section 230 from the other direction.
- Security-focused services and their users bear the knock-on cost: weakening end-to-end encryption becomes the price of keeping immunity, reshaping what consumer messaging products can offer.
Third-order effects
- If the pattern holds through bills like EARN IT and the Take It Down Act, whose critics fear weaponization against disfavored content, 'online safety' legislation hardens into a standing enforcement lever over what platforms host — with Section 230 immunity no longer a default but a revocable grant.
The trend: Congress is steadily converting Section 230's near-automatic immunity into conditional protection through successive online-safety bills, each trading child-safety aims against free-speech and encryption costs.