OTI Strongly Opposes EARN IT Act That Threatens Encryption and Constitutional Rights

Today, Senators Lindsay Graham (R-SC) and Richard Blumenthal (D-CT) introduced the Eliminating Abusive and Rampant Neglect of Interactive Technologies Act (“EARN IT Act”), aimed at combating sexual exploitation of children online. Although this is a significant problem and worthy goal, New America’s Open Technology Institute (OTI) strongly opposes the bill, which would not be effective in achieving this goal, and would instead threaten both our constitutional rights and encryption, thereby also endangering the privacy and security of all internet users.

The EARN IT Act would create a National Commission on Online Child Exploitation Prevention, headed by the Attorney General, which would be tasked with establishing "best practices” for tech companies to detect and combat child sexual abuse material (CSAM) on their platforms. If they fail to comply with these practices, tech platforms would lose longstanding protections under Section 230 of the Communications Decency Act that are critical to safeguarding free expression online.

This structure sets up the Commission to put forth “best practices” that raise serious constitutional concerns, and threats to encryption, privacy, and security:

• First Amendment concerns: By including overly broad and unclear categories that must be addressed in the Commission’s best practices, and by presenting providers with a choice between following those best practices and facing increased liability, EARN IT incentivizes providers to over-censor and suppress online speech.
• Fourth Amendment concerns: If the Commission were to recommend a “best practice” requiring service providers to search private communications for CSAM and report to law enforcement when they find it, these private companies would likely be acting as “agents of the government.” As “agents of the government,” these companies would have to comply with Fourth Amendment warrant requirements—a failure to do so would mean that the CSAM evidence obtained could be suppressed, ultimately making it more difficult for prosecutors to hold predators accountable.
• Threats to encryption, privacy, and security: EARN IT sets the stage for the Commission to recommend best practices that create encryption backdoors for law enforcement. Backdoors for law enforcement, however, are backdoors for bad actors as well, making everyone more vulnerable to privacy, cybersecurity, and other risks.

The following quote can be attributed to Lauren Sarkesian, senior policy counsel at New America’s Open Technology Institute:

“The crisis of child exploitation material online is real, but EARN IT does not take a useful approach, and may even make it harder for law enforcement to go after bad actors. Meanwhile, by threatening encryption, EARN IT undermines a critical tool that we all rely upon for trusted private communications—including our military, journalists, researchers, and our lawmakers—sacrificing the security and privacy of all Americans. We strongly oppose this bill and urge lawmakers to seek more effective alternatives to combat the crisis of child exploitation material online, such as approaches that would better resource law enforcement and prosecutors to take up these cases.”