Senate Judiciary Passes Earn It Act by Voice Vote

House Judiciary Committee Chairman Jerry Nadler, D-N.Y., is “sympathetic to the goals” of (S-3538/HR-6544), Blumenthal told reporters after passage: “I’ll look forward to talking to him about it.” Nadler’s office didn’t comment. The bill removes online platforms’ “blanket immunity” under Section 230 of the Communications Decency Act for violations of law on online child sexual abuse material.

“What’s striking is that this is another version of SESTA-FOSTA, which has been a mess,” Wyden told us, referring to the Stop Enabling Sex Traffickers-Allow States and Victims to Fight Online Sex Trafficking package, which passed in 2018 (see 1807190063). “Hardly anybody even wants to talk about that. The saddest thing is kids will be less safe with” the Earn It Act. Wyden attempted to block the bill in 2020 over free speech, privacy and security concerns (see 2008050039) after the Judiciary Committee unanimously passed the bill (see 2007020050).

Sens. Chris Coons, D-Del.; Jon Ossoff, D-Ga.; Cory Booker, D-N.J.; and Mike Lee, R-Utah, said the Earn It Act needs further improvements to strike the right balance between safety and privacy and security concerns. Sen. Patrick Leahy, D-Vt., said he worked closely with Lee and Blumenthal on encryption language, based on an amendment the committee unanimously passed with the bill last time.

Congress needs to “proceed carefully,” said Coons. “Sometimes we don’t legislate particularly well.” He agreed with the goal of the bill, saying he hopes it sends a signal that Big Tech needs to do more when moderating illegal content, but he also seeks more law enforcement investment.

Wyden and Democrats introduced an alternative to the Earn It Act in 2020 with their Invest in Child Safety Act. That bill “would direct $5 billion in mandatory funding to investigate and target the pedophiles and abusers who create and share child sexual abuse material online.” Wyden said Thursday the 2020 bill would be better than “throwing something out there that sounds good” like the Earn It Act.

Tech companies say the answer is more funding for law enforcement, but law enforcement supports this legislation, Blumenthal said during the hearing. He noted various police organizations around the country that support the bill (see 2202040052).

Big Tech legislation is one area of bipartisanship in an era of polarization, Senate Judiciary Committee ranking member Chuck Grassley, R-Iowa, told reporters after the vote. The committee also passed by voice vote the Eliminating Limits to Justice for Child Sex Abuse Victims Act (S-3103). That bipartisan bill “eliminates the statute of limitations for a minor victim of a human trafficking offense or federal sex offense to file a civil action to recover damages.” Children shouldn’t be deterred from speaking against abusers, and it sometimes takes years for victims to come forward, Grassley said during the hearing.

Durbin asked sponsors whether companies will have a “duty” to reasonably inspect material on their platforms. There’s no “expressed duty,” but the legislation lays out a mens rea knowledge standard, said Blumenthal: The measure is carefully crafted with a standard of knowledge that can be the basis for civil responsibility. The bill takes a “targeted approach” to removing blanket immunity, said Sen. Dianne Feinstein, D-Calif.: “I don’t understand any opposition to” this “direct, simple” solution.

The bill is “very close but not quite there yet,” said Lee. He raised concerns that the language mandates online services to do what the government is banned from doing, which is accessing and reporting private and protected data. He raised concerns about smaller companies facing liability that only large tech platforms would be able to handle. Lee said the bill should establish a clear federal standard so state measures don’t supersede others. For instance, he doesn’t want a church website in Utah to be subject to potentially more stringent standards in a state like New York. Lee claimed some encryption language included in the Leahy amendment didn’t make it into the bill when reintroduced. The bill doesn’t ban the use of encryption or create liability for using it, said Blumenthal. The key is that misuse of encryption would lead to liability for illegal material, he added.

Ossoff drew attention to opposition from Center for Democracy & Technology and the Electronic Frontier Foundation, among others. Congress needs to avoid unintended consequences for privacy and security, said Ossoff. Booker said he supports comments from Ossoff, Coons and Lee on the privacy provisions. Sen. Alex Padilla, D-Calif., also backed their comments, raising concerns about overbroad censorship of lawful speech and disincentives for offering encryption services. Sen. Sheldon Whitehouse, D-R.I., wants a broader committee examination of Section 230, which Sen. Amy Klobuchar, D-Minn., and Blumenthal backed.

Public Knowledge and NetChoice repeated their opposition Thursday. The bill “will weaken the privacy and security of everyday communication services without any net benefit to public safety or the protection of children,” said PK Legal Director John Bergmayer. “Like FOSTA/SESTA, the EARN IT Act will chill constitutionally protected speech while also giving child predators tools to overturn their convictions,” said NetChoice Vice President Carl Szabo. Other opponents include Access Now, American Civil Liberties Union, Electronic Frontier Foundation, Fight for the Future, Free Press Action, Internet Society, Media Alliance and TechFreedom.