EARN IT Act sails through Senate Judiciary Committee

A modified version of the EARN IT Act unanimously passed the Senate Judiciary Committee on July 2, setting up a high-stakes floor vote that could potentially alter a liability shield that protects social media companies from being sued for content posted by third parties on their platforms.

During a markup session, Senate Judiciary Chairman Lindsey Graham (R-S.C.), a co-sponsor of the legislation, said social media sites have become “fertile hunting grounds” for child predators and cited letters he had received from sexual abuse victims supporting the bill.

“The idea of other sick men looking at my father abusing me makes me sick. I had put much of this out of my mind, but when I learned my pictures are out on the internet, it all comes rushing back to me,” Graham read from one such letter. He then added, “we’re going to act. This committee’s going to act.”

Proponents of the bill say the changes are necessary to crack down on the sharing and spreading of child pornography and sexual abuse material online. Earlier versions took a much broader aim at the liability protections under Section 230 of the Communications Decency Act, empowering the Department of Justice to set guidelines around curbing child pornography that companies would need to abide by in order to “earn” those legal protections. It also sought to compel companies to build in access to their encrypted communications for law enforcement.

A manager’s amendment introduced the night before the hearing stripped DOJ of the legal authority to enforce those guidelines and inserted provisions that would revoke Section 230 protections for state laws and federal civil claims.

Civil liberty and digital rights groups were unmoved by the changes. The Center for Democracy and Technology said the amendments “do not fix the problems that are core to the bill’s misguided approach,” while the American Civil Liberties Union issued a letter saying the legislation is well intentioned but “would undermine the privacy of every single American, stifle our ability to communicate freely online, and may jeopardize the very prosecutions it seeks to enable.”

Sen. Ron Wyden (D-Ore.), said the new version of EARN IT “will do even less than the previous version to stop the spread of child sexual abuse material” and urged the committee to table the bill so lawmakers can further vet the proposal to determine if it would do more harm than good.

“By allowing any individual state to set laws for internet content, this bill will create massive uncertainty, both for strong encryption and free speech online,” said Wyden, who instead called for Congress to pass legislation that would boost funding and modernize IT systems for the National Center for Missing and Exploited Children.