- The Washington Times - Thursday, March 12, 2020

A bipartisan Senate bill to crack down on tech companies over online child sex exploitation is hitting opposition from both liberal and conservative groups that say it will harm people who rely on digital encryption to remain safe from predators and criminals.

The battle is largely over Section 230 of the Communications Decency Act, which largely prevents tech companies from being held liable for content posted on their platforms.

Supporters of the Eliminating Abusive and Rampant Neglect of Interactive Technologies [EARN It] Act say their proposal would give companies an incentive to “earn” liability protection since the lawmakers don’t think the companies are sufficiently attacking child sexual exploitation on their websites. The bill also proposes to create a national commission with members appointed by Congress and representatives from the departments of Homeland Security and Justice and the Federal Trade Commission to address the issue of online child exploitation.

Sen. Josh Hawley, Missouri Republican, said at a Judiciary Committee hearing Wednesday that the bill represented a bipartisan message to tech companies that “the days of this Congress giving out free stuff to Big Tech without asking or expecting anything in return are coming to an end.”

“Make no mistake, Section 230 is how these companies have gotten big, it’s how they’ve gotten powerful, it’s how they’ve gotten rich: They’ve done it with this special immunity that the federal government has given them,” Mr. Hawley said at the committee hearing. “So if they want that, then they’re going to have to actually do something for it. They’re going to actually have to take some steps to protect our children online.”

Sen. Dianne Feinstein, California Democrat, said she didn’t understand the thinking of opponents of the legislation since the bill intends to help children. Ms. Feinstein noted that she was supporting the bill as a mother and a grandmother, just as Mr. Hawley noted that he was a father in explaining his support.

“What’s amazing to me is that anybody should have a resistance to this,” Mrs. Feinstein said at the hearing. “This is children we’re talking about. They have every right, or should have, to be protected.”

Opponents of the legislation argue that the bill would fail to protect children, may be unconstitutional under the First Amendment, and could lead to the creation of a “backdoor” into encrypted services that jeopardize the safety of all Americans.

The bill’s detractors include liberal groups such as Demand Progress, conservative groups such as Americans for Prosperity and FreedomWorks, and civil-liberty advocacy groups such as the American Civil Liberties Union, the R Street Institute, and the National Association of Criminal Defense Lawyers.

Americans for Prosperity and the ACLU took the unusual step of teaming up to express their opposition to the bill on the grounds that it would weaken encryption tools and create “back doors” exploited by predators and criminals.

“The EARN It Act threatens the safety of activists, domestic violence victims, and millions of others who rely on strong encryption every day,” said Kate Ruane, ACLU senior legislative counsel, in a statement announcing opposition to the bill. “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.”

A coalition of 25 advocacy groups including Demand Progress, R Street Institute and FreedomWorks wrote a letter to the Senate Judiciary Committee saying that fighting online child sexual exploitation would be better accomplished through more resources for law enforcement. The letter argues that Americans’ safety ought not be compromised via the EARN IT Act because of the government’s failure to equip law enforcement with the tools it needs.

“Amending Section 230 through the EARN IT Act ultimately would provide no significant benefit to law enforcement and would not be effective in addressing the crisis of production and distribution of child sexual abuse material online,” the letter states. “Instead, it would sacrifice the security and privacy of all Americans and leave them susceptible to online dangers.”

Senators on both sides of the political divide brushed away criticisms of how the EARN IT Act would affect encrypted communications. Sen. Richard Blumenthal said during the hearing that it was possible that “Big Tech is using encryption as a subterfuge to oppose this bill.”

“I believe strongly that, in effect, Big Tech doesn’t want to lose this absolute blanket immunity and they don’t want to have to do anything to earn it,” the Connecticut Democrat said Wednesday. “So I understand, I get it, but at the same time I don’t think the American people want this to be a fight about encryption. I think they want the truth and the truth is encryption can coexist with strong law enforcement.”

Many Americans are skeptical of tech companies’ power and are doubtful that government is paying enough attention to technology issues. A Gallup and Knight Foundation poll released Wednesday showed that 84% of Americans do not trust tech companies much or at all, but 55% prefer that tech companies, not the government, police content on their platforms.

“The techlash is real,” said Sam Gill, Knight Foundation senior vice president, in a statement. “People are concerned about major tech companies and their effects on democracy. But they are deeply divided on what should be done.”

• Ryan Lovelace can be reached at rlovelace@washingtontimes.com.

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