Senator Blumenthal admits the EARN IT Act won't “offer a blanket exemption to using encryption as evidence”, after denying for two years it targets encryption

Senator Richard Blumenthal has now admitted that EARN IT is targeting encryption, something he denied for two years, and then just out and said it.

Techdirt 2022-02-11 Mike Masnick

Discussion

@normative Julian Sanchez on x
Several senators demonstrating they understand the problems with EARN IT nevertheless saying they'll vote it out of committee, which I think demonstrates how politically difficult it is to oppose a bill purporting to address CSAM, even if it's a bad bill.
@denverbitcoin @denverbitcoin on x
Thank heavens we got all those “single issue voters” to prevent things like this from happening.... 🤔 #bitcoin https://twitter.com/...
@aricohn Ari Cohn on x
12/ Blumenthal doing what he does best: 1) SOMETHING MUST BE DONE 2) THINK OF THE CHILDREN 3) PLATFORMS ARE IGNORING ME 4) SAD STORIES 5) SOMETHING MUST BE DONE 6) THIS IS SOMETHING 7) DO THIS
@anitaposch @anitaposch on x
USA: the new EARN IT act will put massive legal pressure on internet companies both large and small to stop using encryption and instead scan all user messages, photos, and files. #PrivacyMatters SIGN petition now! @EFF https://www.eff.org/...
@berinszoka @berinszoka on x
@SenateJudiciary Blumenthal: there is free software (PhotoDNA) that allows tech companies to detect when child sexual abuse material appears Yes, and every company SHOULD use it! But ask yourself: why doesn't #EARNITAct just mandate that? Why does current law say there's no legal…
@berinszoka @berinszoka on x
Because if the government requires scanning, or effectively compels it, it's no longer private companies doing the right thing. It's a government actor conducting a search, which requires a warrant under the Fourth Amendment The whole point of #EARNITAct is to coerce searches...
@riana_crypto Riana Pfefferkorn on x
Note that if #EARNITAct wasn't a scanning mandate, it would be easy to put a disclaimer in it (like the existing CSAM reporting law has) that says “this is not a scanning mandate.” It doesn't say that. It used to originally, but it got taken out the *last* time they marked it up.
@berinszoka @berinszoka on x
The bill's sponsors are trying to do an end-run around the Fourth Amendment That will NOT hold up in court. Courts have heretofore ruled that, when tech companies scan user communications, they're doing so for their own reasons. #EARNITAct will force companies to get warrants
@rklau Rick Klau on x
“here is your periodic reminder that Ethereum is the slowest, and most expensive, and hardest to use computer in the world” - @CaseyNewton https://www.platformer.news/ ...
@evan_greer Evan Greer on x
The EARN IT Act is a sneak attack on encryption. The EARN IT Act has always been a sneak attack on encryption. And it's not even that sneaky. https://www.techdirt.com/... #NoEarnItAct #StopTheEARNITAct2022 #StopTheEARNITAACT2022 #EarnItAct
@aricohn Ari Cohn on x
14/ This bill absolutely is about encryption, as I've explained many times. If a company can be held liable under a “recklessness” standard under state law, and its decision to offer encryption can be used as evidence of that recklessness, there IS liability for encryption.
@riana_crypto Riana Pfefferkorn on x
Note: Durbin (also a cosponsor) tried to get Graham & Blumenthal to say clearly that #EARNITAct doesn't impose a scanning mandate (as a CYA measure re its 4th Am problems). Graham said & Blumenthal agreed that *this* bill doesn't say that, but the *next* bill they bring will. 0_o
@riana_crypto Riana Pfefferkorn on x
“Once you say it's the ‘misuse of encryption’ [that justifies liability,] you've sunk encryption. Because now every lawsuit will just claim that *any* use of encryption is *misuse*” https://twitter.com/...
@senatorshoshana @senatorshoshana on x
It's about encryption. https://www.techdirt.com/...
@aricohn Ari Cohn on x
38/ Blumenthal: The treatment of encryption is the result of hours and days of consultation with Leahy, who at the time says that his amendment wouldn't protect against liability for using encryption to further illegal activity. BUT YOU DIDN'T ACTUALLY USE HIS LANGUAGE.
@evan_greer Evan Greer on x
Blumenthal is listing off a litany of horrifying crimes against children. The problem is that the EARN IT Act won't actually stop those crimes from happening. And it will make children even more vulnerable by weakening encryption. https://noearnitact.org/
@aricohn Ari Cohn on x
13/ Blumenthal: This isn't about encryption, that's a red herring. This isn't about free speech. Rape isn't free speech. So Blumenthal not only doesn't understand the bill, he's willing to engage in logical fallacy to defend it. Peak Blumenthal.
@viacristiano Cristiano Lima on x
Sen. Blumenthal responding to concerns that EARN IT will inadvertently lead to more legal speech (like sex ed material) being removed: “This issue is not about free speech. Rape is not free speech.” He also calls encryption concerns a big “red herring”
@cat_zakrzewski Cat Zakrzewski on x
Blumenthal defends the bill's handling of encryption. “Doesn't prohibit use of encryption, doesn't create liability for using encryption, but the misuse of encryption to further illegal activity is what gives rise to liability here. That's the very simple answer.”
@berinszoka @berinszoka on x
Blumenthal means that using encryption can't be an “independent basis” for liability, but it *can* be used as evidence of a company not doing enough to stop CSAM @Riana_Crypto addressed this two years ago tl;dr: if you can sue for “recklessness,” the protection is meangingless ht…
@riana_crypto Riana Pfefferkorn on x
In addition to being quoted in the WaPo article above, I'm in @TonyaJoRiley's piece today on #EARNITAct's serious issues, talking about its 4th Amendment problem: the risk that this bill will backfire and let CSAM offenders walk free. https://www.cyberscoop.com/...
@tonyajoriley Tonya Riley on x
THREAD: The new version of the EARN IT Act is even more dangerous for encrypted technologies, experts told me. The bill is heading into markup now and chances of it passing committee (again) are strong. https://www.cyberscoop.com/...
@issielapowsky @issielapowsky on x
NEW: Progressive groups have been mighty quiet about concerns that the Senate antitrust bills might make it harder for platforms to moderate content, even as Cruz and others have said that's what they like about the bills. I dug into the reasons why. https://www.protocol.com/...
@jkosseff Jeff Kosseff on x
Today's EARN IT Act markup had a lot of discussion about what mens rea would be necessary for platforms to face civil liability for distributing CSAM. The discussion wasn't terribly clear, so I'm going to try to break down what we do know about the legal standards.
@evan_greer Evan Greer on x
BREAKING: the #EarnItAct just passed out of the Senate Judiciary Committee on a “voice vote,” but the good news is that FIVE Senators raised significant concerns about the bill. We still have a chance to stop this before it hits the floor. Retweet! https://noearnitact.org/
@ashleylatke Ashley Lake on x
We lost against SESTA, we lost against the MasterCard policies, we lost against “eSafety” in Australia, against “Online Safety” in the UK, and we are going to lose against EARN IT unless we change tactics We MUST center harm against children and survivors these policies cause
@berinszoka @berinszoka on x
It's hard to believe Lee doesn't understand the difference between content moderation of *unencrypted* PUBLIC posts and forcing companies NOT to encrypt private user-to-user communications so they can be content-moderated But, hey, at least he got to complain about “censorship”
@aricohn Ari Cohn on x
2/ EARN IT is a bill that needs hearings, where experts can tell senators how this bill will screw up everything it tries to do. The bill is some surveillance state stuff, potentially opening your communications to exploitation by criminals, malicious actors, & hostile govts
@senblumenthal Richard Blumenthal on x
There is no excuse, tech companies must step up to stop the child sexual abuse that occurs on their platforms. By passing the #EarnItAct out of the Judiciary committee, Congress is taking action to ensure Big Tech prevents, stops, & reports this abuse. https://www.youtube.com/...
@aricohn Ari Cohn on x
3/ Worse yet, it imperils child porn prosecutions by potentially turning otherwise voluntary efforts by companies to deal with the scourge of child sexual abuse material (CSAM) through the coercive effect of its liability cudgel. These are just a couple of MANY problems.
@mistressmatisse @mistressmatisse on x
If #StopTheEARNITAct2022 passes, kiss digital privacy GOODBYE. Any “private” written messages you send or receive, and any images you see or save can potentially be seen by others, possibly used against you. This is a gift link, no paywall to read, plz RT! https://www.washingtonp…
@blackstar3x @blackstar3x on x
If this thing passes there will be hell to pay!! https://www.washingtonpost.com/ ...
@repsylviagarcia Rep. Sylvia Garcia on x
I am proud to have reintroduced the EARN IT Act, a bipartisan and bicameral bill that would protect children from sexual violence and safeguard their privacy online. #SaferInternetDay
@riana_crypto Riana Pfefferkorn on x
@TonyaJoRiley It's pure cowardice to use this sneaky backhanded way of punishing encryption instead of introducing a bill that overtly does so. Regulating encryption is a highly contentious issue - but instead of face that controversy head-on, @SenBlumenthal uses children as his …
@stanfordcyber @stanfordcyber on x
Lawmakers have advanced the #EARNITAct the controversial bill claiming to hold tech companies responsible for posts exploiting children. But @Riana_Crypto of @stanfordio says the bill may instead discourage companies from deploying encryption. https://www.washingtonpost.com/ ...
@jamescz19 James Czerniawski on x
LOL @SenBlumenthal over here saying the quiet part out loud. With #EARNITAct, it explicitly threatens #encrpytion, which should concern any #privacy or #freespech advocate who cares about the importance of anonymous speech. https://twitter.com/...
@gerryconway @gerryconway on x
Like clockwork, every couple of decades political hacks try to make political hay out of supposed concern for “The Children” while ignoring real-world practical efforts to improve real-world childrens' lives. https://www.theverge.com/...
@mmasnick Mike Masnick on x
Jeff properly outlines this issue that most people (INCLUDING SOME OF THE SENATORS PUSHING EARN IT) don't seem to understand, regarding how EARN IT would play out in practice due to the 1st Amendment and what knowledge standard would be needed. https://twitter.com/...
@mmasnick Mike Masnick on x
So, @SenBlumenthal spent TWO FULL YEARS denying EARN IT had *anything* to do with encryption. In fact, in March 2020 he flat out said it had nothing to do with encryption. And today he admits, “well, actually... it's about encryption.” https://www.techdirt.com/...
@tonyajoriley Tonya Riley on x
Blumenthal accuses big tech “lobbyists and their allies” of trying to make the bill an issue of encryption. Blumenthal calls that a red herring. Privacy advocates disagree. Here's what Blumenthal told @Cat_Zakrzewski on encryption in the bill https://www.washingtonpost.com/ ... h…
@cat_zakrzewski Cat Zakrzewski on x
Today lawmakers will consider the controversial Earn It Act, which has reignited a battle over the future of privacy and free speech https://www.washingtonpost.com/ ...
@riana_crypto Riana Pfefferkorn on x
Blumenthal just now: “It's not about encryption. That is a gigantic red herring.” Blumenthal to the WaPo: https://twitter.com/...
@riana_crypto Riana Pfefferkorn on x
There it is: #EARNITAct's sponsor wants to ensure state prosecutors & civil plaintiffs can sue tech companies for offering strong encryption to protect user privacy & security. It's always been about punishing encryption. Now, as his bill heads into markup, he's admitting it. htt…
@ashleylatke Ashley Lake on x
#EarnItAct will replicate the worst aspects of FOSTA - deplatforming people who need help - making it harder to investigate and find victims - making it harder to prosecute cases But even worse, a direct attack on encryption means it will directly abuse children's privacy https:/…
@lifebymissfaye @lifebymissfaye on x
Sex workers you need to be starting this discussion right now This absolutely will shut us down online and we will lose everything we have. I suggest you take notice to the #EarnItAct and fight against it now https://twitter.com/...
@mikestabile Mike Stabile on x
The #EARNITAct has passed out of committee. However, thanks to the work of sex workers, LGBTQ+ groups and privacy advocates, significant concerns were raised about the scope. Now, we make sure that there's action behind that talk. Let's get to work, folks. https://twitter.com/...
@ellanso Emma Llanso on x
In other words, intermediaries already face federal criminal liability for knowingly distributing CSAM content. #EARNITAct would allow state claims that a provider was reckless or negligent in failing to stop CSAM on its service (e.g. by failing to filter, because it offers E2EE)
@brodygoes Jennifer Brody on x
THANK 👏 YOU 👏 @MikeLeeforUtah @ChrisCoons @SenBooker @ossoff @SenAlexPadilla for standing up for human rights at today's Judiciary Committee markup #EARNITAct will make us all less, not more, safe #encryption is a lifeline for human rights defenders and journalists everywhere
@evan_greer Evan Greer on x
.@SenMikeLee saying that he will vote EARN IT Act out of committee today but making it clear he still has significant concerns about the #encryption language in the bill and wants to see them addressed. The problem is we know Blumenthal and Graham DO want to attack encryption
@swodinsky @swodinsky on x
lol he actually said it https://twitter.com/... https://twitter.com/...
@ronwyden Ron Wyden on x
The #EARNITAct is SESTA-FOSTA on steroids. SESTA-FOSTA didn't help victims. It increased sex trafficking: https://sanfrancisco.cbslocal.com/ ...
@ronwyden Ron Wyden on x
Stop the #EARNITAct
@cat_zakrzewski Cat Zakrzewski on x
Sen. Blumenthal just called encryption a “red herring” in the debate over the Earn It Act. I pressed him yesterday on privacy advocates' concerns and asked why the legislation doesn't broadly bar encryption from being used as evidence of negligence. He said this: https://twitter.…
@xor Parker Higgins on x
One striking thing about this EARN IT Act hearing is that three supportive senators have made very explicit that this is part of a broader attack on Section 230. That used to be subtext!
@joseph_marks_ Joseph Marks on x
Senate Judiciary just forwarded the EARN IT act to the floor despite reservations it might undermine encryption protections. The consensus was they'll try to remedy those concerns before it hits the floor. Background via @Cat_Zakrzewski https://www.washingtonpost.com/ ...
@berinszoka @berinszoka on x
#EARNITAct was changed in 2020 to “fix” the liability it enables under federal law (by tying it to “actual knowledge”, but it then does exactly the same thing through the back door: enabling states to enforce criminal & civil laws that turn on mere recklessness or negligence
@berinszoka @berinszoka on x
#EARNITAct's sponsors say they've fixed the bill. They haven't. Making the “best practices” “voluntary” doesn't help. The 4th Amd./privacy problem has always been come from exposing tech companies to such vast liability that they *must* monitor what users say & abandon encryption
@aricohn Ari Cohn on x
Another look at the alleged “markup” of #EarnItAct https://twitter.com/...
@berinszoka @berinszoka on x
.@SenateJudiciary is marking up #EARNITAct, which claims to crack down on child sexual abuse material but will really jeopardize prosecutions. Forcing tech firms not to use strong encryption & to monitor users makes them state actors who need a warrant 🧵 https://www.judiciary.sen…
@jkosseff Jeff Kosseff on x
There was some discussion about EARN IT only leading to liability for platforms that have knowledge that they are distributing CSAM. That would be the case if it only covered federal civil CSAM actions. But it also creates a carve-out for state CSAM laws.
@engineorg @engineorg on x
The Senate Judiciary passed the #EARNITAct this morning. During the markup, @SenMikeLee did a great job of breaking down why the bill could open up small Internet companies and websites to costly litigation under state laws.
@evan_greer Evan Greer on x
Contact House and Senate leadership: @SpeakerPelosi and @SenSchumer. Tell them that it's unacceptable to bring EARN IT Act to a vote given the overwhelming concerns and opposition from human rights and LGBTQ+ organizations. Send them this letter: https://cdt.org/...
@foxcahn @foxcahn on x
Enraging that after so many years of pushback by so many people around the world, the US Senate continues to drive us towards laws that would destroy the Internet as we know it. This isn't about what platforms have earned, it's about the open Internet that we all need #EarnItAct
@engineorg @engineorg on x
“I do worry about smaller companies...that might not have the resources to comply with the patchwork quilt of state laws,” said @SenMikeLee, citing the example of a church website with an interactive feature like a chat function or a message board.
@evan_greer Evan Greer on x
Send quick thank you notes to the Senators who raised concerns about EARN IT Act. Yes, they should vote against it, but speaking up DOES make a difference with whether this bill moves forward. Here they are: @ossoff @SenMikeLee @CoryBooker @SenAlexPadilla @ChrisCoons
@jkosseff Jeff Kosseff on x
This was a big deal. SCOTUS recognized that obscenity is not 1A-protected. But imposing strict liability on the *distributor* of obscene material, SCOTUS ruled, would chill protected speech. The key reasoning: https://twitter.com/...
@fightfortheftr @fightfortheftr on x
Thank you @ossoff @ChrisCoons @SenMikeLee @CoryBooker @SenAlexPadilla for raising concerns about the #EarnItAct at today's hearing. Please ensure that the concerns of human rights groups, security experts, sex workers, and LGBTQ+ groups are addressed, or #StopTheEarnItAct2022 htt…

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Senator Blumenthal admits the EARN IT Act won't “offer a blanket exemption to using encryption as evidence”, after denying for two years it targets encryption

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