Durbin Gains Wide GOP Support for Child Online Safety Bill

Sen. Marsha Blackburn, R-Tenn., was one of several members who expressed reservations. She unsuccessfully sought to strike a provision in the bill that creates a child online protection board at the FTC. She said DOJ is better equipped to handle a program focused on takedown requests for CSAM, claiming the FTC often oversteps its authority. She filed and withdrew an amendment on the provision. Sen. Mike Lee, R-Utah, said he agreed DOJ is the better agency to host a board.

Durbin gained the support of ranking member Lindsey Graham, R-S.C., and Sen. Josh Hawley, R-Mo., after working with them on two amendments. Both passed by voice vote. Graham successfully tweaked language on mandatory reporting requirements for organizations that provide child services.

Section 2 of the bill requires entities that receive $10,000 or more in federal discretionary funding for child services to report child sex abuse they come across. Current law doesn’t require programs outside of athletics to report child sex abuse. As Durbin said, there’s mandatory reporting “for the little league but not for the Cub Scouts.” Graham added language he said will ensure Section 2 doesn’t have unintended consequences for religious organizations. He said he wants to make sure the bill doesn’t “hurt people with religious beliefs.” Lee and Sen. Ted Cruz, R-Texas, helped craft the amendment, said Graham.

Hawley’s amendment addressed liability for when platforms knowingly store or host CSAM. Durbin said the new language preserves the liability and refines an affirmative defense that platforms can use. It also adjusts language on what evidence is needed to prove the platform was knowingly hosting CSAM, he said. Hawley said the civil liability will allow victims for the first time to get into court and sue the people who posted it and platforms that knowingly host it. He said he’s convinced the only solution for getting platforms’ attention is to threaten legal action. Hawley and Cruz added themselves as S-1199 co-sponsors during the markup.

Graham called the bill’s markup a “breakthrough moment,” a week after he told the committee he expected passage of the Earn It Act but also expected the bill to fizzle without final passage from Congress. Graham announced his intention to introduce a bill with Sen. Sheldon Whitehouse, D-R.I., that would sunset Communications Decency Act Section 230 in two years. Section 230 has “outlived its usefulness,” and a full repeal will force Big Tech to find a better solution with Congress. A Section 230 repeal reverts to laws and principles that have stood the test of time, said Whitehouse: There’s no need to fear the application of time-tested laws.

Thursday’s markup is a “testament” to what can be accomplished, given the doubt cast about Durbin picking up sponsors for his initially partisan bill, said Sen. Jon Ossoff, D-Ga. Though there has been progress, Ossoff said, he still has concerns about the impact of the bill on end-to-end encryption, which has been a constant point of contention in Earn It Act scrutiny. Sens. Cory Booker, D-N.J., and Alex Padilla, D-Calif., shared Ossoff’s concerns. Sen. Chris Coons, D-Del., filed and withdrew an amendment that would have added language from his Platform Accountability and Transparency Act (S-5339). Improving platform transparency is a key part of the issue, he said.

The committee passed by voice vote the Stopping Harmful Image Exploitation and Limiting Distribution (Shield) Act. S-412 deals with child exploitation and revenge porn. The bill establishes federal criminal liability for individuals who “share private, sexually explicit or nude images without consent.” The bill attempts to fill gaps in the prosecution of child predators who share their images. It’s a step toward protecting victims of “serious privacy violations and online abuse,” said Sen. Amy Klobuchar, D-Minn., who introduced the bill with Sen. John Cornyn, R-Texas. Sens. Lee and Mazie Hirono, D-Hawaii, added themselves as co-sponsors during the markup.