The Senate Judiciary Committee is expected to consider a significant amendment to the Earn It Act (S-3398) from Chairman Lindsey Graham, R-S.C., and Sen. Richard Blumenthal, D-Conn., at Thursday’s markup (see 2006290056). According to a committee aide, Graham intends to introduce a manager’s amendment with Blumenthal that would remove the tech industry’s blanket immunity under Section 230 of the Communications Decency Act from federal civil, state criminal and state civil child sexual abuse material (CSAM) laws: “Service providers will now be treated like everyone else when it comes to combating child sexual exploitation and eradicating CSAM.” The amendment would task a government-backed commission with developing voluntary best practices rather than approving best practices required for certification, as originally drafted. “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 Sen. Ron Wyden, D-Ore. Wyden’s bill would direct $5 billion for investigations and resources about online child abuse. Offices for Graham and Blumenthal didn't comment. Internet Association Senior Director-Federal Government Affairs Mike Lemon welcomed recognition of Fourth Amendment concerns raised against the original bill. He said the amendment, however, would replace one set of problems with another. It would open the “door to an unpredictable and inconsistent set of standards under state laws that pose many of the same risks to strong encryption,” Lemon said. As Section 230 “does not apply to federal criminal law, these proposals, including a government-backed Internet regulatory commission, can only undermine the ongoing fight against CSAM,” said Computer & Communications Industry Association President Matt Schruers. The bill “makes it possible for one state to undermine encryption nationwide,” said NetChoice Vice President Carl Szabo. The tech industry shouldn’t be immune from lawsuits, whether at the state or federal level, when it’s responsible for injuring people including children, said National Center on Sexual Exploitation General Counsel Benjamin Bull. He said that either industry will self-correct, or the federal government will expose it to litigation. CSAM is illegal under federal law, despite Section 230, emailed Information Technology and Innovation Foundation Vice President Daniel Castro. “Why are some members of Congress so aggressively pursuing this new law? By most accounts, it appears to be because this law can be used to undercut encryption.”
Booking.com is eligible for federal trademark protection, the Supreme Court ruled 8-1 Tuesday. The high court overruled the Patent and Trademark Office’s finding that the domain name is a generic term (see 2005040050). Justice Stephen Breyer dissented, saying the term Booking does nothing more than identify a generic product or service. PTO had refused Booking.com’s registration, saying the combination of a generic word like booking with .com doesn’t make it any less of a generic term for online hotel reservation services.
It’s unlikely Sen. Richard Blumenthal, D-Conn., could offer an amendment to keep the Earn It Act from undermining encryption for millions of Americans, encryption advocates said in interviews about Thursday’s Senate Judiciary Committee markup (see 2006250067). A victims advocate urged the committee to advance the bill, contending government action is the only way to get Big Tech to respond to rampant child exploitation.
Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., told us he wants to debate encryption and Communications Decency Act Section 230 separately. But Sen. Richard Blumenthal, D-Conn., told us he may seek to clarify at the July 2 markup how their Earn It Act affects encryption (see 2006230006). “I’m going to wait till the markup to determine exactly what amendments are necessary, but I think the impact of the bill on encryption has been way exaggerated and distorted, so if we can clarify it, we may do it,” Blumenthal said.
Congress doesn’t have to wait to apply different protective thresholds to sensitive information in light of the Supreme Court’s Carpenter decision (see 2005130056), said Privacy and Civil Liberties Oversight Board Chairman Adam Klein Wednesday during a PCLOB virtual forum. Carpenter said the government’s collection of at least seven days of cellsite location information is a Fourth Amendment-protected search, meaning police must obtain warrants. Klein agreed with Elizabeth Goitein, co-director of the Brennan Center for Justice’s Liberty & National Security Program. Goitein said Carpenter indicates Congress can apply that standard to other information collected under Section 215 of the Patriot Act. For instance, authorities can collect web browsing data without warrant using Section 215. Goitein said that’s one area Congress could legislate. The Senate recently rejected such a proposal (see 2005130056). PCLOB members Edward Felten, Jane Nitze, Travis LeBlanc and Aditya Bamzai asked how the board can better fulfill its mission and what authorities it should be scrutinizing. It could explore Section 215 to determine what intelligence value it's yielding, said University of Texas School of Law Associate Dean-Academic Affairs Robert Chesney. Goitein agreed Section 215 needs attention but disagreed the PCLOB should weigh intelligence value. The board’s focus is privacy and civil liberties so that should be the focus of any Section 215 review, she added. Nitze asked if the existence of the Foreign Intelligence Surveillance Act court lessens the incentive for congressional oversight of intelligence agencies. Goitein agreed but said removing the FISA court isn’t the answer. Bamzai asked what existing proposals the board should analyze. Georgetown University Law Center visiting professor Mary McCord agreed with the recently Senate-passed proposal requiring FISA court judges to appoint an amicus curiae in certain cases. The House requested conference on FISA reauthorization (see 2005280023). Davis Polk's Kenneth Wainstein warned against allowing amici to be too involved in court proceedings, saying it could impact national security. He recommended Congress pass the reauthorization and then consider a separate FISA revamp package based on DOJ inspector general findings detailing abuse (see 2003310068).
Section 230 of the Communications Decency Act needs recalibration because Big Tech isn’t doing enough to combat disinformation, House Commerce Committee Democrats said Wednesday. Republicans suggested platforms provide more transparency about content moderation decisions, citing political bias. It was a hearing (see 2006110064) of the Communications and Consumer Protection subcommittees.
Senate Intellectual Property Subcommittee ranking member Chris Coons, D-Del., told us he doesn’t see an easy path forward for drafting text for updating the Digital Millennium Copyright Act by December (see 2006090063). Chairman Thom Tillis, R-N.C., told us he’s hoping to get the tech industry to the negotiating table, after the Internet Association said it doesn’t want the DMCA amended.
Expect “significant” proposed changes when the Senate Judiciary Committee marks up the Earn It Act, Sen. Richard Blumenthal told us Thursday (see 2006170063). “I’m ready for a markup, which will include some changes, some of them significant, to clarify the provisions in light of the feedback."
When a public figure makes a statement violating Twitter rules, the platform doesn’t remove the post in order to allow public discussion and scrutiny, which was the case with President Donald Trump’s recent comments about looting (see 2006160059), Director-Global Public Policy Strategy and Development Nick Pickles told House Intelligence Committee Democrats Thursday.
It appears there are enough votes for the Senate Judiciary Committee to advance bipartisan, Section 230 legislation for combating child exploitation, Chairman Lindsey Graham, R-S.C., told us Wednesday (see 2003110070). If Earn It Act (see 2003050066) co-sponsor Sen. Richard Blumenthal, D-Conn., is in favor, Graham will move to a vote: “I think we’ve got the votes, and I’m going to sit down with Sen. Blumenthal right after we do the policing [legislation] stuff, and if he’s ready to go, I’m ready to go.”