The Senate Judiciary Committee on Thursday unanimously advanced a bill aimed at holding tech platforms responsible for the spread of child sexual abuse material, despite widespread opposition from digital rights and industry groups.
The Eliminating Abusive and Rampant Neglect of Interactive Technologies (EARN IT) Act would carve out liability protection given to online platforms under Section 230 of the Communications Decency Act, opening companies up to federal and state lawsuits for hosting content exploiting children.
It would also create a national commission to develop best practices to address the harmful material online.
The bill, co-sponsored by Sens. Richard Blumenthal (D-Conn.) and Lindsey Graham (R-S.C.), was also advanced through committee when it was first introduced in 2020 but never received a floor vote.
The reintroduction of the bill earlier this month has drawn intense backlash.
One of the primary concerns raised by privacy and civil liberties groups is that EARN IT would disincentivize the adoption of strong encryption, which protects communications from government and private surveillance.
The latest form of the bill could let prosecutors use the existence of an encrypted chat option as evidence that a company is failing to protect the safety of children. Law enforcement officials, which have backed the bill, have claimed that encryption can be used by child predators to avoid detection.
“Everyone who communicates with others on the internet should be able to do so privately,” a collection of over 60 civil society groups wrote in a letter to the committee Wednesday. “But by opening the door to sweeping liability under state laws, the EARN IT Act would strongly disincentivize providers from providing strong encryption.”
Sen. Jon Ossoff (D-Ga.), who was not in Congress the last time the bill was considered, introduced that letter into the record.
Blumenthal called arguments about encryption a “gigantic red herring” during Thursday’s hearing, but told the Washington Post in an interview earlier this week that lawmakers wouldn’t offer an exemption for adopting the privacy protection.
Sen. Mike Lee (R-Utah) suggested that an amendment added to the bill last cycle to explicitly allow platforms to offer encryption should be added before a floor vote.
Opponents of EARN IT have also cautioned that it could complicate efforts to hold perpetuators of child sexual abuse accountable, especially since it is already illegal and online companies are required to report any of the material on their platforms.
Critics have also pointed to the last attempt to amend Section 230, the Fight Online Sex Trafficking Act (FOSTA), also referred to as SESTA, the Senate’s original bill.
FOSTA-SESTA was designed to punish platforms facilitating sex trafficking, but has only resulted in one federal prosecution since it was signed into law in 2018.
Instead, according to sex workers, it has made the industry more dangerous and buried online platforms that were used to find safe clients.
Despite that criticism from external groups, opposition within the Senate appears to be minimal.
Sen. Ron Wyden (D-Ore.), one of the original authors of Section 230, has committed to opposing the legislation.
“This sadly misguided bill will not protect children,” he said in a statement.
“It will not stop the spread of vile child exploitation material or target the monsters that produce it,” he continued. “And it does not spend a single dollar to invest in prevention services for vulnerable children and youth or help victims and their families by providing evidence-based and trauma-informed resources.”