A powerful coalition of senators on Thursday introduced a highly anticipated bill that would hold tech companies accountable for the millions of images and videos of children being sexually abused spreading across their platforms, a proposal that has already riled up the tech industry and its most adamant supporters.
The EARN IT Act, introduced by Senate Judiciary Chairman Lindsey GrahamLindsey Olin GrahamThe Hill's 12:30 Report - Presented by Facebook - Biden meets with lawmakers amid domestic agenda panic The Hill's Morning Report - Presented by Alibaba - House Democrats plagued by Biden agenda troubles Graham tries to help Trump and McConnell bury the hatchet MORE (R-S.C.) and Sen. Richard Blumenthal (D-Conn.) alongside several top members of the committee, is one of the most significant congressional threats yet to the tech industry's valuable liability shield, which allows companies such as Facebook and Google to avoid lawsuits over what people say and post on their platforms.
The bill, which was met with a sea of opposition Thursday from tech trade groups as well as the privacy-focused American Civil Liberties Union (ACLU), would establish a government-backed commission to recommend "best practices" around identifying and reporting online child sexual exploitation.
The EARN IT Act received endorsements from more than 70 groups, including top victim's rights advocacy organizations.
“I appreciate my colleagues working with me on this bill to ensure tech companies are using best business practices to prevent child exploitation online,” Graham said in a statement. “This bill is a major first step. For the first time, you will have to earn blanket liability protection when it comes to protecting minors."
Reports of child sexual exploitation online have skyrocketed in recent years, as criminals use popular platforms including Facebook, Twitter and YouTube to spread images and videos of minors in violation of federal law. But so far, the companies have been largely protected from facing lawsuits over the child sexual abuse material due to Section 230 protections.
"Our goal is to do this in a balanced way that doesn’t overly inhibit innovation," Graham said, addressing the burgeoning concerns that amending Section 230 could undermine the internet ecosystem that it helped create, "but forcibly deals with child exploitation.”
The bill was introduced just as the Department of Justice (DOJ) announced a separate but related initiative, with the backing of tech companies including Facebook and Google, laying out 11 voluntary steps the companies can take toward confronting the serious challenge of online sexual abuse.
The EARN IT Act would go further than DOJ's efforts, requiring the companies to take certain steps to combat child sexual exploitation on their platforms in order to "earn" that liability shield, which is laid out in Section 230 of the Communications Decency Act.
The Internet Association, the tech trade group tasked with speaking for Silicon Valley in Washington, D.C., said it has "very strong concerns" that the bill could "impede existing industry efforts" to eradicate child exploitation online.
"We look forward to working with Chairman Graham and Senator Blumenthal on a path forward," said Michael Bloom, the trade group's senior vice president of global government affairs.
Behind the scenes, even some Republicans on the committee have declined to back Graham's bill, raising concerns about government overreach and the Fourth Amendment, three sources told The Hill on Wednesday. The final bill has 10 co-sponsors, with six Democratic backers and four Republicans.
A spokeswoman for Sen. Mike CrapoMichael (Mike) Dean CrapoGOP senators say Biden COVID-19 strategy has 'exacerbated vaccine hesitancy' The Energy Sector Innovation Credit Act is an industry game-changer The 19 GOP senators who voted for the T infrastructure bill MORE (R-Idaho), a member of the committee, said in an email to The Hill, "Senator Crapo will review the final text as introduced and looks forward to listening to testimony next week about the merits of the bill."
The Senate Judiciary Committee will be holding a hearing specifically dedicated to the EARN IT Act on Wednesday.
Critics worry that the bill is ultimately an effort to undermine the tech industry's efforts to implement end-to-end encryption, a feature that makes it impossible for the companies or government to access private communications.
The DOJ and members of the Judiciary Committee, including Graham, in recent months have ramped up an aggressive public fight against end-to-end encryption, pressing the tech companies to build "backdoors" that allow law enforcement officials to access private messages during criminal investigations.
Barr has specifically warned that encryption allows "criminals to operate with impunity" — including those who disseminate images of children being sexually exploited.
Encryption can make it more difficult for law enforcement officials to identify and take action against online predators. But tech experts and privacy activists have continually argued that building any "backdoor" to encrypted communications would allow bad actors, such as hackers and authoritarian governments, to access private messages. They say there's no way to create a loophole that only allows law enforcement into encrypted communications.
Despite those arguments, last year, top law enforcement officials including FBI Director Christopher Wray specifically called out Facebook for its plans to implement end-to-end encryption across its services with billions of total users. And senators on the Judiciary Committee warned they would push through legislative solutions to the problem of encryption if the companies did not act to address law enforcement's concerns.
Graham's bill does not explicitly mention encryption, but the ACLU in a press release said the EARN IT Act "would lead to a 'backdoor' in encrypted services, thereby jeopardizing the security of every individual."
"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. "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," Ruane said.
Graham's bill immediately riled up at least one critic within the upper chamber — Sen. Ron WydenRonald (Ron) Lee WydenBiden touts 'progress' during 'candid' meetings on .5T plan Manchin: Biden told moderates to pitch price tag for reconciliation bill Biden employs flurry of meetings to unite warring factions MORE (D-Ore.). He slammed it as a "Trojan horse to give Attorney General [William] Barr and Donald TrumpDonald TrumpUkraine's president compares UN to 'a retired superhero' Collins to endorse LePage in Maine governor comeback bid Heller won't say if Biden won election MORE the power to control online speech and require government access to every aspect of Americans' lives."
Wyden said he will introduce legislation "in the coming days" to combat child sexual exploitation by increasing the number of prosecutors and agents hunting down predators.
Blumenthal told The Hill on Thursday that he has a message for those who are concerned that the bill could threaten private, encrypted communications: "This is not an encryption bill."
He argued that the bill is explicitly written to ensure that the tech industry and privacy experts have a say in the "best practices" created by the commission. The Connecticut senator, a former state attorney general, said the technology company representatives on the panel could band together to vote down any anti-encryption proposals.
The bill is also facing headwinds from another direction: the Senate Commerce Committee, which claims near-total jurisdiction over Section 230 and has continually battled with the Judiciary committee when it tries to encroach on the law.
"The Commerce Committee is reviewing the EARN IT Act as it relates to Section 230, which is under the purview of the committee, to determine whether statutory updates are needed in the battle to protect children online," a senior aide on the panel told The Hill in an email.
—Updated at 5:31 p.m.