Senate Judiciary Approves EARN It Act

Bill is amended to clarify it is not about ending encryption

The Senate Judiciary Committee has sent a clear, bipartisan, signal that Big Tech’s Sec. 230 will no longer be treated as an impregnable shield against civil liability for third party content on social media platforms.  

Related: Senate to Vet Edge Provider Liability Bill 

The days when Sec. 230 gives every company an absolute liability protection have to come to an end, said Committee chairman Lindsey Graham (R-S.C.) (pictured above). He said he was not out to destroy the companies, but to make them accountable for their actions or inaction’s. 

That came at a markup Thursday (July 2) and a vote to favorably report the EARN IT Act to the full Senate, though with an amendment that said end-to-end encryption would not automatically trigger liability, a change that secured more bipartisan support from those concerned the bill was aimed at creating encryption back doors. 

That has also been a big issue with privacy groups and tech companies, which have pushed back hard on the EARN It Act.  

Related: Senators Are Teaming on Bipartisan Sec. 230 Transparency Bill

Sen. Richard Blumenthal

The bill, whose principal co-sponsors are Graham and Richard Blumenthal (D-Conn.), amends Sec. 230 of the Communications Decency Act to allow tech companies to be held liable in federal and state courts if there is child sexual abuse content on their sites. 

Currently, Sec. 230 is pretty much an absolute shield Graham said before the vote, which would not be the case going forward. He conceded that social media sites “enrich all our lives,” but he also called them fertile hunting grounds for child sexual predators. “We are going to act,” he said. The committee did.  

Sen. Mike Lee

Senators from both sides withdrew planned amendments to pave the way for a swift “yes” vote on the bill, while reserving the right to try and tweak language before a floor vote. Sen. Mike Lee (R-Utah) had planned to offer an amendment that would set a federal standard for what online conduct would trigger the loss of Sec. 230 immunity, rather than leave it to the states to decide. He said he had problems with a patchwork of state laws on what would be that content trigger, afraid it would allow states to legislate and end to encryption. But with the introduction of the Leahy Amendment, and a pledge from Graham that there would be opportunity to negotiate on language, he did not introduce it. 

Sen. Diane Feinstein

Senators from both sides of the aisle made it clear in their opening statements that Big Tech had not done enough to keep such content off the Web. 

Graham said he applauded the efforts of social media sites to childproof sites from sexual predators or take down child pornography, then provided a senatorial understated accusation: “[Nobody is rising to the occasion at a level I expect.” 

Related: DOJ Proposes Sec. 230 Reforms 

Blumenthal said the bill was not “a meat ax executive order that endangers free speech,” a reference to President Trump’s order on regulating social media content, but a narrowly crafted and tailored approach to get at insidious torture, rape and exploitation of children, then their re-victimization when that abuse lives on online. He said the bill was bout creating an incentive for social media platforms to police their sites by making them legally liable for knowingly enabling the distribution of “filth and misery.” 

He said that while the breadth of Sec. 230 protection might have been necessary at some point, it was “no longer.” 

The chorus was joined by Sen. Ted Cruz (R-Texas), who asked to be added as a co-sponsor, and Sen. Diane Feinstein (D-Calif.), who agreed with the majority that tech companies, some in her own back yard she conceded, had not sufficiently stepped up to the plate. 

Graham supported the encryption-related amendment, which was introduced by Sen. Patrick Leahy (D-Vt.), but said they would leave for another day the debate over whether law enforcement should be able to access encrypted info to catch the bad guys, he things they should. He said the EARN It Act was aimed at getting Web sites to better police their content. 

Blumenthal said the Leahy amendment cleared up the misconception that the bill was about doing away with encryption, which he said it was not and would never be.