Nathalie Maréchal, Ph.D., is the Senior Policy and Partnerships Manager at Ranking Digital Rights.
I have been called a lot of things in my life, but this is the first time I’ve been accused of being a Big Tech lobbyist, even by association. And by a sitting U.S. Senator, no less.
Let’s back up. On Thursday, the Senate Judiciary Committee marked up the latest version of the EARN IT Act, an epically bad bill first introduced in 2020 that would remove platforms’ Section 230 liability shield from various federal and state laws related to child sexual abuse material (CSAM) under certain conditions; platforms are already liable under federal criminal law. (I hope TPP’s readers all know by now that Section 230 of the 1996 Communications Decency Act is what makes it possible for online services to moderate user content at their own discretion without getting sued every ten seconds.)
To keep (or, erm, EARN) 230 immunity under the original version of the bill, platforms would have had to “certify” their adherence to certain “best practices” (as determined by a government commission) for preventing the dissemination of CSAM on their services. The 2022 version does away with the possibility of “earning” the liability shield. It’s clear from both the bill text and the debate surrounding it that the Commission will discourage providing end-to-end encryption. (For details on how EARN IT purports to work, and precisely how terrible it is, see these analyses by CDT’s Emma Llansó, TechDirt’s Mike Masnick, and Stanford’s Riana Pfefferkorn.)
Strong encryption has, of course, been a perennial focus of intense legal and policy debate since the dawn of Diffie-Hellman. The Trump-era chapter of the Crypto Wars was led by then-Attorney General Bill Barr, a long-time foe of strong encryption, who memorably convened a bizarre “conference” in the FBI auditorium to extoll the virtues of so-called “lawful access” regimes. It was clear that he intended to contrive a legal mechanism to de facto eliminate end-to-end encryption while maintaining a veneer of plausible deniability. A few months later, Senator Lindsey Graham (R-SC) introduced the EARN IT Act, which would give the Attorney General extraordinary powers to set the rules of the road for online service providers. Senator Richard Blumenthal (D-CT) and 12 other senators would eventually co-sponsor it. Amid widespread condemnation from civil society groups, this version of EARN IT died in the 116th Congress without coming to a vote in the full Senate.
Unfortunately, it didn’t stay dead for long. Earlier this month, Senator Blumenthal joined Senator Graham to re-introduce the bill. It has now moved out of the Judiciary Committee and could come up for a vote at any time.
In a public letter sent last Wednesday, my organization, along with more than 60 civil and human rights groups argued that EARN IT would not actually protect any children from being abused or exploited, while undermining the ability of internet users (including children!) to protect themselves by using encryption or accessing accurate information about topics related to sex (someone else has to post—and host—that info, after all). It’s like SESTA/FOSTA all over again, with an extra helping of magical thinking about so-called encryption backdoors that only let law enforcement with valid subpoenas through.
Senate Judiciary Committee members Cory Booker (D-NJ), Chris Coons (D-DE), Mike Lee (R-UT), Alex Padilla (D-CA), and Jon Ossoff (D-GA) opposed the bill on similar grounds, but still voted to move it out of committee.
Now, it is true that many Big Tech lobbyists also oppose EARN IT. The Verge quoted NetChoice’s Carl Szabo as saying that the provisions requiring platforms to report incidences of CSAM to the National Center for Missing and Exploited Children (NCMEC), which the major US platforms already do voluntarily, amount to “turning social media companies into an arm of the government” under the state actor doctrine. More broadly, platforms are naturally going to oppose legislation that increases their liability for what their users do—that’s simple self-interest. But it doesn’t follow that everyone who opposes EARN IT is doing so at the behest of Big Tech, as Senator Blumenthal implied during Thursday’s markup.
The groups behind this week’s coalition letter have no love lost for “Big Tech.” Many of us, including the group I work for, advocate for the abolition of the surveillance advertising business model that pays Big Tech’s bills. Personally, I think the world will be a better place when the tech and social media sector is drastically reformed through a combination of strict privacy and data protection, corporate governance reform, and antitrust enforcement. I oppose intermediary liability regimes like EARN IT and SESTA/FOSTA because I care about actually protecting people more than I care about sticking it to Big Tech companies by making it easier to sue them.
I wish Senator Blumenthal felt the same way. It’s not too late for him to recognize the valid concerns of civil society experts who have no particular fondness for Big Tech.
This piece has been edited to more accurately reflect the differences between the 2020 and 2022 versions of the EARN IT Act.
Nathalie Maréchal is the Senior Policy and Partnerships Manager at Ranking Digital Rights. She leads the development of RDR’s policy positions, coordinates stakeholder engagement and partnerships, and publicly represents RDR with the media and at conferences around the world. Fluent in French and Spanish, Maréchal is a frequent speaker at digital rights events and academic conferences. Her work has been published by the International Journal of Communication, the Global Commission on Internet Governance, Media and Communication, Motherboard, and Slate. She holds a PhD in communication from the Annenberg School at the University of Southern California, an MA in international communication from the School of International Service at American University, and a BA in international studies, also from AU. Maréchal lives in Washington, D.C.