Article | March 05, 2020

Why the EARN IT Act Puts Americans’ Online Security at Risk

Gary Shapiro

The EARN IT Act, which was just introduced today in the Senate Judiciary Committee, is positioned as a bill to prevent the spread of child pornography. In reality, it will likely put law-abiding Americans at risk. This bill sets up the false choice between child safety and internet safety that we shouldn’t have to make. 

Under this legislation, an unelected commission would devise “best practices” for internet platforms to follow in dealing with child sexual abuse material (“CSAM”) in order to receive protection from liability for third-party speech (Section 230). The commission’s structure gives disproportionate power to the Attorney General, a strong opponent of encryption.

It is almost certain that the commission’s “best practices” would effectively ban platforms’ end-to-end encryption — a security feature that enables users to share information without anyone else seeing it. Weakening or removing encryption would expose all Americans’ private information to cyber scammers, foreign governments and other bad actors. In a world where every day seems to bring news of another data breach, our government should be encouraging — not penalizing — the adoption of secure technologies.

Ironically, an EARN IT Act encryption ban will not even appreciably reduce the use of encryption. Instead, it will simply penalize American companies by forcing those interested in secure communication to move their business to offshore companies not governed by U.S. law.

The EARN IT Act also jeopardizes small businesses that did nothing wrong and have no knowledge of illegal activity by allowing them to be targeted in class-action lawsuits. We should do everything we can to support entrepreneurs – creating a flood of bogus lawsuits and discouraging internet and tech innovation would be devastating to our startup economy.

Sadly, the EARN IT Act is devised to make those who speak out against it seem like they are supporting child pornography. This could not be further from the truth. A ban on encryption isn’t the answer to tackling the problem of child exploitation. Distribution of CSAM material is a federal crime and there is nothing in Section 230 preventing federal law enforcement from going after these criminals today. We strongly urge the Department of Justice to prioritize efforts against child predators.

More, Congress has allocated only half of the annual funding for state and local law enforcement efforts called for under the “PROTECT Our Children Act” – a law enforcement tool used to protect children from online predators. The same problem exists at the federal level – last year, 40% of the Department of Homeland Security’s Cybercrime Unit’s budget was taken away and diverted to immigration enforcement.

In the past, similar ill-considered efforts to change Section 230 have backfired. In 2018, when Congress passed SESTA-FOSTA, it ended up implementing measures that actually made it more difficult for law enforcement to find child and sex traffickers and victims. The impact of this law has been so damaging that members of Congress are now calling for the reconsideration of the legislation. We need to be especially cautious of passing legislation that will limit any technology that can, in many cases, save child victims.

In reality, we need the expertise of tech innovators to help us catch child predators. Technology companies are using technologies like facial recognition, artificial intelligence and machine learning to identify CSAM and report it to law enforcement. With these innovations, they are working to accelerate victim identification, empower the public to report child exploitation activity and quickly track down child predators.

Section 230 is the legal foundation of today’s internet, and makes possible much of what we do online every day. And we need encryption – not only will banning encryption jeopardize Americans’ private information, but it will force those who value their privacy to use non-U.S.-based technologies, dealing a major blow to the internet industry, which contributes over $2 trillion to the U.S. economy.

We must keep children safe – and we must work to find and stop child and sex traffickers. But in doing so, Congress and the administration must look for solutions that don’t put Americans’ online safety at risk.

Gary Shapiro is president and CEO of the Consumer Technology Association (CTA)®, the U.S. trade association representing more than 2000 consumer technology companies, and a New York Times best-selling author. He is the author of the new book, Ninja Future: Secrets to Success in the New World of Innovation. His views are his own.