The Senate Judiciary Committee has favorably reported the EARN It Act to the full Senate, but with the agreement to work on some issues as it moves toward a floor vote. 

The Eliminating Abusive and Rampant Neglect of Interactive Technologies [EARN IT] Act would remove Section 230 immunity from liability from edge providers who knowingly distribute or promote child sexual abuse materials on their websites. 

The vote came during a committee markup of the bill on Thursday (Feb. 10).

Computer companies have opposed the EARN It Act, while law enforcement and child protection advocates support it. Some human rights groups have expressed issues about encryption and privacy and the bill‘s impact on journalists and others.

The EARN It Act would not mandate an affirmative duty for companies such as Google, Amazon, Netflix or Facebook to police their sites or review material. It would only remove the immunity for not “reasonably inspecting” their material, which means if they are informed of such material and do nothing to keep it off their sites, they would lose civil liability immunity for that particular third-party content.

One issue was the bill's impact on encryption of private communications, but bill co-sponsor Sen. Richard Blumenthal (D-Conn.) said that the bill does not prohibit encryption, but only the misuse of encryption to further illegal activity.

Also: DAs Make Case for EARN It Act

Both Democrats and Republicans signaled that if any Big Tech company tried to use the lack of an affirmative duty as a loophole, those legislators might have to circle back and mandate that the sites review their material.

Sen. Lindsey Graham (R-S.C.), the bill's other principal co-sponsor, said that whether there should be an affirmative duty to police sites is another issue and that when informed of such content he hoped Big Tech would act responsibly. If not, he signaled such a duty would be “in his next bill.”

Blumenthal said that despite the arguments of Big Tech‘s armies of lawyers, the bill was not about encryption, which he called a “gigantic red herring,” or free speech, he said. “Rape is not free speech,” he said. There are companies that are vigorous partners in the effort to fight child sexual abuse, he added, because they know it can be done.

He said the bill was about expanding mandatory reporting, doubling the time that companies are required to preserve evidence of child exploitation, fostering the next generation of technology to fight abuse and holding tech companies accountable when they fail to supervise and prevent the spread of child sexual abuse material.

Among the issues to be worked out before a full Senate vote include whether not having the affirmative obligation in the bill is a loophole that needs fixing now, clarifying the encryption provision, the impact of the law on smaller websites and whether a state definition of knowledge of illegal material should be incorporated into the bill, as is currently the case.

Sen. Mike Lee (R-Utah) pointed out that could mean that in Illinois, for example, whose knowledge standard goes beyond “knew” to “should have known,” tech platforms could be held to that standard.

Blumenthal said he thought incorporating state standards was still better than “straitjacketing” them to a federal standard. ■

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. ■

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

That is the bill that would amend 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 liable for posts that illegally exploit children.  

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

The Computer & Communications Industry Association called it a misdirected effort to combat child sexual abuse material online, and that would instead weaken the law (Sec. 230) that companies use to address objectionable third-party material online--without the threat of civil suits.

“Instead of directing more resources toward prosecution of industry-reported content, this bill aims to put a government commission in charge of how digital services operate,” CCIA president Matt Schruers said. “Enforcing existing criminal statutes in known cases would prevent more crime than placing a federal committee in control of how internet services police content.”

Also: EARN IT Act Debut Earns Plenty of Input

Fight for the Future (FFTF) executive director Evan Greer was even tougher on the bill, calling it “[O]ne of the most poorly conceived and dangerous pieces of internet legislation I have seen in my entire career and that’s saying a lot.” Greer said the bill “will trample human rights and online free expression, particularly for trans and queer folks.”

FFTF launched an email campaign against a prior introduction of the bill and plans to update the campaign for the reintroduced bill.

Among those on the other side of the issue are the Parents Television and Media Council (PTC) and the National Center on Sexual Exploitation (NCSE). 

“The PTC proudly endorses the EARN IT Act of 2022,“ PTC president Tim Winter said. “We applaud the bipartisan and bicameral leadership of Senators Lindsey Graham  and Richard Blumenthal, Reps. Ann Wagner (R-Mo.) and Sylvia Garcia (D-Texas), and over a dozen co-sponsors from both sides of the political aisle, all of whom have come together with the noble goal of protecting children from the growing and ever-present threats that are so prevalent in today’s toxic digital media environment.”

“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,”  NCSE president Patrick A. Trueman said when the bill was first introduced. “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).” ■

The Senate Judiciary Committee weighed into the issue Big Tech's accountability for online child exploitation Wednesday (March 10) and both sides of the aisle made it clear tech companies needed to do more to help in that effort. 

The National Center for Missing and Exploited Children said it had received some 17 million complaints about such material in 2019.

The hearing was on the Eliminating Abusive and Rampant Neglect of Interactive Technologies [EARN IT] Act."  

Related: EARN IT Act Debut Earns Plenty of Input 

The bill, which was introduced by Sen. Lindsey Graham (R-S.C.), would amend Section 230 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 liable for posts that illegally exploit children.  

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

An emotional and resolute Graham said companies needed to be finding and taking down sexually explicit that adults are posting and "put the bastards in jail." 

He said he was tired of begging and pleading and talking and that it was time to start voting. 

Graham said all the bill was doing was coming up with a voluntary system of best practices for preventing child exploitation online. If companies comply, they are home free, if not the Section 230 protection from civil liability for that failure goes away. 

He pointed out that there were 10 bipartisan co-sponsors of the bill and suggested if they voted on the bill now he would get a lot of votes. He said he recognized the complexity of the issue and the balancing of speech protections and that he was not out to put anyone out of business or stop innovation. But he also said that they "were not letting this abuse go forward in the name of any freedom." 

Graham made a point of praising Facebook for its efforts to identify and scrub exploitaive content, saying it was doing a "damn good job." 

Sen. Richard Blumenthal (D-Conn.), who worked with Graham on the bill, pointed to the 10 bipartisan co-sponsors and said he hoped there would be more once more people understood what was at stake. 

He said anyone who had seen the online images of child exploitation had to be repulsed by the vile, gut-wrenching, unspeakable betrayal of basic humanity, a betrayal that haunts survivors because they infest the 'net and never go away, a "crime in perpetuity," as Catholic University law professor Mary Leary put it at the hearing.  

Blumenthal said Section 230 provides a unique, near absolute immunity from legal consequences for "certain companies and activities." 

He said they were not proposing to eliminate that protection for companies that earn it (thus the EARN IT Act name) by taking responsible steps to stop the exploitation of kids. He said their goal was to crack down on child abuse, enlisting companies in the effort and making sure they follow best practices. 

Blumenthal said the bill was not about ending encryption, which could co-exist with protecting children.  

It was shocking that some of the largest tech companies had failed to meet their social and moral obligation to crack down on child exploitation, said Blumenthal. 

He called out Amazon for providing only eight reports of suspected child abuse material on its platform, only a fraction of what the National Center for Missing & Exploited Children had identified. Graham seconded that, noting that Facebook had provided 15.8 milion reports compared to Amazon's eight. 

Blumenthal said that Amazon's response that, because it isn't Facebook it does not have a child sexual exploitation problem was "indefensible and insulting."

Blumenthal warned that Section 230 was a gift, but one that needed to be earned and deserved, and "would not continue if these companies don't follow basic moral obligations.

Ms. Elizabeth Banker, general counsel for the Internet Association, which has issues with the bill, took some not-to-friendly fire, though the legislators made clear they knew she was just the messenger.

Blumenthal said, angrily, that her message back to her tech clients should be that tech companies can be part of the solution or they are part of the problem and they will lose all of Section 230. He said they would "see a whirlwind" of opposition to Section 230 "across the board."

But Blumenthal also said he did not want to paint all tech companies with a broad brush and pointed out that one of IA's (40-plus) members, Match, was testifying at the hearing in support of the bill.