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Tech Companies Slam Bipartisan Online Child Sexual Exploitation Bill

Tech companies are pushing back hard on a new bill targeting online sexual abuse of children, saying weakening Sec. 230 liability protections is the wrong way to address the problem. 

The bipartisan Eliminating Abusive and Rampant Neglect of Interactive Technologies (EARN IT) Act, which was introduced in March, is being marked up in the Senate Judiciary Committee Thursday (July 2). That means amended and either approved for a full Senate vote, or not.

Related: Senate to Vet Edge Provider Liability Bill 

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. Co-sponsors include  

The bill's co-sponsors include Judiciary ranking member Diane Feinstein (D-Calif.), Sen. Richard Blumenthal (D-Conn.), Sen. Dick Durbin (D-Ill.), and Sen, Josh Hawley (R-Mo.), one of Big Tech's biggest Senate critics.

The bill would create a National Commission on Online Child Sexual Exploitation Prevention, charged with providing the Justice Department with "recommended best practices that providers of interactive computer services may choose to implement to prevent, reduce, and respond to the online sexual exploitation of children, including the enticement, grooming, sex trafficking, and sexual abuse of children and the proliferation of online child sexual abuse material."

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

The heads of the Justice Department, Department of Homeland Security, and Federal Trade Commission, or their representatives would be among the 19 members of the commission, with the other 16 appointed by the Senate and House majority and minority leaders. A best practice can only be recommended if at least 14 members agree. 

Among the things it will be looking at is coming up with a rating and categorization system for types of child sexual abuse material, establishing content moderators to review such content, preparing reports about terms of service disclosures, age-rating and age-gating systems, parental control products to limit the web sites and social media platforms kids can access, and more. 

While tech association ITI said its members share the goal of removing online child sex abuse content, they say the EARN It act would "undermine cybersecurity, privacy, and free speech, while failing to meaningfully tackle exploitative content beyond current authorities." 

Related: DOJ Proposes Sec. 230 Reforms 

They said giving an "unaccountable commission" discretion to come up with best practices could mean giving law enforcement encryption back-doors by expanding the Attorney General's investigative power, creating new criminal penalties and weakening the Sec. 230 protection from civil suits over third-party content by lowering the "knowledge standard" in those suits. 

"By blocking lawsuits by individuals’ whose material is removed by the operator, Section 230 allows companies to affirmatively block and screen harmful material without fear of constant or burdensome lawsuits by the owners of that material," ITI said in a letter to Judiciary Committee leadership. "Removing Section 230’s liability protections, as the EARN IT Act would do, only undermines the legal certainty that is central to both enabling innovation and free speech on the Internet and preserving the ability for companies to take down exploitative material." 

Related: New Bill Would Attack Child Porn 

There has been ongoing tension between Big Tech and both sides of the aisle over the issue of encryption back doors, with Justice Departments under both President Barack Obama and Donald Trump saying they need a way to get into the encrypted devices of terrorists and other bad actors. The optics have also been tough for Big Tech when it pushes back on bills related to child sexual exploitation. 

ITI is not alone in saying the EARN IT Act is the wrong solution to an acknowledged problem. It is joined by Human Rights Watch, The Electronic Frontier Foundation and the American Civil Liberties Union.