The National District Attorneys Association (NDAA) has joined with others to call on Congress to pass the EARN IT Act, which would limit Big Tech's immunity from liability for third-party content on websites.

“Prosecutors are thrilled to once again support the EARN IT Act, a bill that would hold the tech industry accountable for the exploitation of children on their platforms," said NDAA. "We look forward to working alongside Senator Lindsey Graham and Senator Richard Blumenthal to #ProtectKidsOnline.”

The goal of the bill is to take on online child exploitation by making it clear that there is no immunity from civil liability for posting or hosting child sexual abuse material.

The bill is being marked up in the Senate Judiciary Committee February 10 and the groups want to get in front of that process with a call to the committee to favorably report the bill to the full Senate.

Numerous Big Tech associations have weighed in against the bill saying that while well intentioned would harm the open internet.

Also: EARN IT Act Earns Plenty of Input

Computer companies were not happy with the news last week that Sens. Lindsey Graham (R-S.C.) and Richard Blumenthal (D-Conn.) had reintroduced the Eliminating Abusive and Rampant Neglect of Interactive Technologies (EARN IT) Act.

The bill amends Section 230 of the Communications Act to say that the section's immunity for online platforms from civil liability for third-party content does not extend to child exploitation, meaning a Facebook or Twitter could be held civilly liable for posts that are proven to illegally exploit children.  

It would also establish a National Commission on Online Child Exploitation Prevention to establish best practices for preventing such exploitation.  

Also among those supporting the bill are the National Center on Sexual Exploitation and the National  Center for Missing and Exploited Children. ■

Sen. Ron Wyden (R-Ore.), the author of Sec. 230, has signaled the law needs work, but apparently not the way that the EARN IT Act goes about it. 

The bill, whose principal co-sponsors are Judiciary Committee chairman Lindsey Graham (R-S.C.) and Richard Blumenthal (D-Conn.), amends Sec. 230 of the Communications Decency Act to allow tech companies to be held liable in federal and state courts if there is child sexual abuse content on their sites.  

Related: Senate to Vet Edge Provider Liability Bill 

The bill passed out of the committee earlier this month. 

Wyden was on a livestream event hosted by Fight for the Future, which argues the EARN IT Act endangers online free speech.  

“By allowing any individual state to set the laws for Internet content, the bill creates enormous uncertainty, both for strong encryption and free speech online," Wyden told the streamed audience, according to FFTF. "And what’s worse, a flood of state laws could potentially arise under the EARN IT Act and raise strong fourth amendment concerns, meaning that any evidence collected can be rendered inadmissible in court and accused offenders could get off scot-free! That seems to be pretty bizarre, even by Washington, DC standards.” 

FFTF said it "virtually" presented Wyden with an open letter opposing the EARN IT Act signed by almost 500,000 people. 

"The EARN IT Act is a disaster for free expression and privacy online,” said Dayton Young, product director at Fight for the Future. “Not only does this bill infringe upon the Constitutionally-protected rights of everyone in America, but the EARN IT Act will actually make it harder to catch and prosecute sexual predators," he said. "Any member of Congress who is serious about stopping child exploitation online must reject the misguided EARN IT Act and focus on investing more resources in community-led efforts to stop violence and abuse before it happens.” 

The Senate Judiciary Committee has sent a clear, bipartisan, signal that Big Tech's Sec. 230 will no longer be treated as an impregnable shield against civil liability for third party content on social media platforms.  

Related: Senate to Vet Edge Provider Liability Bill 

The days when Sec. 230 gives every company an absolute liability protection have to come to an end, said Committee chairman Lindsey Graham (R-S.C.). He said he was not out to destroy the companies, but to make them accountable for their actions or inactions. 

That came at a markup Thursday (July 2) and a vote to favorably report the EARN IT Act to the full Senate, though with an amendment that said end-to-end encryption would not automatically trigger liability, a change that secured more bipartisan support from those concerned the bill was aimed at creating encryption back doors. 

That has also been a big issue with privacy groups and tech companies, which have pushed back hard on the EARN It Act.

Related: Senators Are Teaming on Bipartisan Sec. 230 Transparency Bill

“The EARN IT Act is the strongest piece of legislation that can confront the explosion of online child sexual abuse material," said Patrick A. Trueman, president and CEO of the National Center on Sexual Exploitation. "If passed, Big Tech will finally be held legally accountable to report the sexual abuse of children online. Technology companies currently have blanket legal immunity, and platforms on which CSAM circulates—Instagram, Twitter, and more—are not required by law to report it. EARN IT will provide the necessary incentive for Big Tech to protect children online."

The bill, whose principal co-sponsors are Graham and Richard Blumenthal (D-Conn.), amends Sec. 230 of the Communications Decency Act to allow tech companies to be held liable in federal and state courts if there is child sexual abuse content on their sites. 

Currently, Sec. 230 is pretty much an absolute shield Graham said before the vote, which would not be the case going forward. He conceded that social media sites "enrich all our lives," but he also called them fertile hunting grounds for child sexual predators. "We are going to act," he said. The committee did.  

Senators from both sides withdrew planned amendments to pave the way for a swift "yes" vote on the bill, while reserving the right to try and tweak language before a floor vote. Sen. Mike Lee (R-Utah) had planned to offer an amendment that would set a federal standard for what online conduct would trigger the loss of Sec. 230 immunity, rather than leave it to the states to decide. He said he had problems with a patchwork of state laws on what would be that content trigger, afraid it would allow states to legislate an end to encryption. But with the introduction of the Leahy Amendment, and a pledge from Graham that there would be opportunity to negotiate on language, he did not introduce it. 

Senators from both sides of the aisle made it clear in their opening statements that Big Tech had not done enough to keep such content off the web. 

Graham said he applauded the efforts of social media sites to childproof sites from sexual predators or take down child pornography, then provided a senatorial understated accusation: "[Nobody] is rising to the occasion at a level I expect." 

Related: DOJ Proposes Sec. 230 Reforms 

Blumenthal said the bill was not "a meat ax executive order that endangers free speech," a reference to President Trump's order on regulating social media content, but a narrowly crafted and tailored approach to get at insidious torture, rape and exploitation of children, then their re-victimization when that abuse lives on online. He said the bill was about creating an incentive for social media platforms to police their sites by making them legally liable for knowingly enabling the distribution of "filth and misery." 

He said that while the breadth of Sec. 230 protection might have been necessary at some point, it was "no longer." 

The chorus was joined by Sen. Ted Cruz (R-Texas), who asked to be added as a co-sponsor, and Sen. Dianne Feinstein (D-Calif.), who agreed with the majority that tech companies, some in her own back yard she conceded, had not sufficiently stepped up to the plate. 

Graham supported the encryption-related amendment, which was introduced by Sen. Patrick Leahy (D-Vt.), but said they would leave for another day the debate over whether law enforcement should be able to access encrypted info to catch the bad guys, he thinks they should. He said the EARN II Act was aimed at getting websites to better police their content. 

Blumenthal said the Leahy amendment cleared up the misconception that the bill was about doing away with encryption, which he said it was not and would never be. 

The Leahy amendment was not a sufficient change to endear the bill to its historic critics.

“The EARN IT Act is and always will be a threat to free speech and free expression online,” said Dayton Young, product director at Fight for the Future. “This legislation is tailor-made to remove important legal safeguards for social media platforms, Internet providers, VPNs, and messaging apps that protect our online communications and personal data,” he said. 

"While OTI welcomes Senator Leahy’s amendment that aims to ensure that offering strong encryption does not give rise to liability, the committee’s passage of this amendment is not sufficient to remove the threat to encryption services," said New America’s Open Technology Institute (OTI) in a statement. "Given these persisting concerns, Senators should abandon the EARN IT Act and consider more effective, holistic approaches—like the reallocation of law enforcement resources— that would more directly address the problems of child sexual exploitation on and offline."

“The EARN IT Act is the strongest piece of legislation that can confront the explosion of online child sexual abuse material," said Patrick A. Trueman, president and CEO of the National Center on Sexual Exploitation. "If passed, Big Tech will finally be held legally accountable to report the sexual abuse of children online. Technology companies currently have blanket legal immunity, and platforms on which CSAM circulates—Instagram, Twitter, and more—are not required by law to report it. EARN IT will provide the necessary incentive for Big Tech to protect children online."

News that the Senate Judiciary Committee next week will be vetting a bill that could change the face of children's online content drew swift reaction, much of it negative.  

The committee has scheduled a hearing March 11 on The Eliminating Abusive and Rampant Neglect of Interactive Technologies [EARN IT] Act." 

The bill, which was introduced by Sen. Lindsey Graham (R-S.C.), would amend Sec. 230 to say the third-party liability immunity does not extend to child exploitation laws, meaning a Facebook or Twitter could be held liable for posts that illegally exploit children. 

The EARN IT bill would also establish a National Commission on Online Child Exploitation Prevention to establish best practices for preventing such exploitation. 

That did not sit well with lots of folks. 

"New America’s Open Technology Institute (OTI) strongly opposes the bill, which would not be effective in achieving this goal ['combating sexual exploitation of children online'], and would instead threaten both our constitutional rights and encryption, thereby also endangering the privacy and security of all internet users," said the group. 

Concerned that the bill would give the government a "back door" to encrypted services, the American Civil Liberties Union and Americas for Prosperity teamed up to take aim at the legislation.  

Related: Cantwell: 5G Security Means No U.S. Government Back Doors

“The EARN It Act threatens the safety of activists, domestic violence victims, and millions of others who rely on strong encryption every day," said ACLU senior legislative counsel Kate Ruane. "Because of the safety and security encryption provides, Congress has repeatedly rejected legislation that would create an encryption backdoor. This legislation would empower an unelected commission to effectively mandate what Congress has time and again decided against, while also jeopardizing free expression on the Internet in the process. This bill is not the solution to the real and serious harms it claims to address.” 

Global tech trade association ITI followed suit. 

“Despite the legislation’s stated goals, we believe the EARN IT Act would fail to meaningfully tackle exploitative content beyond current tools and laws and contains fatal flaws that would undermine cybersecurity, privacy, and free speech," said ITI president Jason Oxman. "The tech industry will continue to work with governments, law enforcement, users, and communities, including with the sponsors of this bill, to ensure that tech products and services continue to create a safe environment online.” 

ITI joined earlier in the day with the Department of Justice and representatives from Australia, Canada, New Zealand, and the United Kingdom to support voluntary guidelines for protecting children online from sexual exploitation. 

On the other side was the National Center on Sexual Exploitation. "Right now, Big Tech has no incentive to prevent predators from grooming, recruiting, and trafficking children online and as a result countless children have fallen victim to child abusers on platforms like Instagram, Snapchat, and TikTok," said NCSE president Patrick A. Trueman. "EARN IT gives us these missing incentives by making the current gift of immunity under the Communications Decency Act Section 230 conditional. To keep immunity, social media platforms will have to demonstrate they are actively working to prevent online sexual exploitation of minors and child sexual abuse material (CSAM)."

"While balancing the needs of national and individual security in today’s fragile cybersecurity landscape is challenging, this bill creates problems rather than offering a solution," said Heather West, head of Americas policy, for Mozilla.

"The law enforcement community has made it clear this law is another attempt to weaken the encryption that is the bedrock of digital security. Encryption ensures our information — from our sensitive financial and medical details to emails and text messages — is protected. Without it, the world is a far more dangerous place. 

"While well-intentioned, the EARN IT Act would cause great harm to the open internet and put everyday Americans at greater risk. We look forward to working with Sens. Graham and Blumenthal and their respective committees to find better ideas to create a safer and more secure internet for everyone."