The Senate Judiciary Committee advances the EARN IT Act, targeting Section 230 sexual exploitation content protections, despite numerous free speech concerns

The Verge 2022-02-11 Russell Brandom

Context & Ripple Effects

The EARN IT Act has been circling since it was first introduced in 2020 as a bipartisan bill conditioning Section 230 protections on child-exploitation standards that critics said would weaken data privacy. Amendments in mid-2020 failed to quiet the objection that even a revised version threatens online speech, and the bill was reintroduced this year in a form modeled on FOSTA — the prior law whose speech-chilling precedent critics say it repeats.

Advancing out of the Senate Judiciary Committee puts it alongside another liability-shifting platform bill the same panel moved earlier this month when it voted 16-6 to advance the American Innovation and Choice Online Act. The committee is running a two-front effort against the legal foundations of large platforms.

First-order effects

Platforms would have to meet government-set child-exploitation standards to keep Section 230 protections for sexual exploitation content, converting an automatic immunity into a compliance condition they must continuously earn.
Free speech advocates and legal experts who flagged the FOSTA-style design in the reintroduced bill now shift from commentary to formal opposition as the bill moves toward floor time.

Second-order effects

Because earning protections requires scanning and reporting infrastructure, platforms face pressure to weaken or backdoor end-to-end encryption — the data privacy cost critics identified back in the 2020 version — putting encrypted messengers' architecture directly in the bill's path.
Rival legislation strategy hardens: with the committee also advancing antitrust-style liability bills like AICO, platform trade groups must lobby on two fronts rather than treating Section 230 as a settled shield.

Third-order effects

If the pattern holds, Section 230 erodes incrementally through child-safety-framed carve-outs rather than repeal — the same committee later advanced KOSA and COPPA 2.0, which critics again flagged for forcing more user data collection, suggesting a durable legislative template.
The structural endpoint is a tiered immunity regime where legal protection depends on surveillance capacity, advantaging the largest platforms that can afford compliance stacks and squeezing smaller services that cannot.

The trend: Congress is dismantling Section 230 piecemeal through child-safety-framed bills that trade platform immunity for mandated monitoring, with the Senate Judiciary Committee setting the pace.

Discussion

@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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