Skip to main content
Menu

Main navigation

  • About
    • Annual Reports
    • Leadership
    • Jobs
    • Student Programs
    • Media Information
    • Store
    • Contact
    LOADING...
  • Experts
    • Policy Scholars
    • Adjunct Scholars
    • Fellows
  • Events
    • Upcoming
    • Past
    • Event FAQs
    • Sphere Summit
    LOADING...
  • Publications
    • Studies
    • Commentary
    • Books
    • Reviews and Journals
    • Public Filings
    LOADING...
  • Blog
  • Donate
    • Sponsorship Benefits
    • Ways to Give
    • Planned Giving

Issues

  • Constitution and Law
    • Constitutional Law
    • Criminal Justice
    • Free Speech and Civil Liberties
  • Economics
    • Banking and Finance
    • Monetary Policy
    • Regulation
    • Tax and Budget Policy
  • Politics and Society
    • Education
    • Government and Politics
    • Health Care
    • Poverty and Social Welfare
    • Technology and Privacy
  • International
    • Defense and Foreign Policy
    • Global Freedom
    • Immigration
    • Trade Policy
Live Now

Blog


  • Blog Home
  • RSS

Email Signup

Sign up to have blog posts delivered straight to your inbox!

Topics
  • Banking and Finance
  • Constitutional Law
  • Criminal Justice
  • Defense and Foreign Policy
  • Education
  • Free Speech and Civil Liberties
  • Global Freedom
  • Government and Politics
  • Health Care
  • Immigration
  • Monetary Policy
  • Poverty and Social Welfare
  • Regulation
  • Tax and Budget Policy
  • Technology and Privacy
  • Trade Policy
Archives
  • March 2021
  • February 2021
  • January 2021
  • December 2020
  • November 2020
  • October 2020
  • September 2020
  • August 2020
  • July 2020
  • June 2020
  • May 2020
  • April 2020
  • March 2020
  • February 2020
  • January 2020
  • December 2019
  • November 2019
  • October 2019
  • September 2019
  • August 2019
  • July 2019
  • June 2019
  • May 2019
  • April 2019
  • March 2019
  • February 2019
  • January 2019
  • December 2018
  • November 2018
  • October 2018
  • September 2018
  • August 2018
  • July 2018
  • June 2018
  • May 2018
  • April 2018
  • March 2018
  • February 2018
  • January 2018
  • December 2017
  • November 2017
  • October 2017
  • September 2017
  • August 2017
  • July 2017
  • June 2017
  • May 2017
  • April 2017
  • March 2017
  • February 2017
  • January 2017
  • December 2016
  • November 2016
  • October 2016
  • September 2016
  • August 2016
  • July 2016
  • June 2016
  • May 2016
  • April 2016
  • March 2016
  • February 2016
  • January 2016
  • December 2015
  • November 2015
  • October 2015
  • September 2015
  • August 2015
  • July 2015
  • June 2015
  • May 2015
  • April 2015
  • March 2015
  • February 2015
  • January 2015
  • December 2014
  • November 2014
  • October 2014
  • September 2014
  • August 2014
  • July 2014
  • June 2014
  • May 2014
  • April 2014
  • March 2014
  • February 2014
  • January 2014
  • December 2013
  • November 2013
  • October 2013
  • September 2013
  • August 2013
  • July 2013
  • June 2013
  • May 2013
  • April 2013
  • March 2013
  • February 2013
  • January 2013
  • December 2012
  • November 2012
  • October 2012
  • September 2012
  • August 2012
  • July 2012
  • June 2012
  • May 2012
  • April 2012
  • March 2012
  • February 2012
  • January 2012
  • December 2011
  • November 2011
  • October 2011
  • September 2011
  • August 2011
  • July 2011
  • June 2011
  • May 2011
  • April 2011
  • March 2011
  • February 2011
  • January 2011
  • December 2010
  • November 2010
  • October 2010
  • September 2010
  • August 2010
  • July 2010
  • June 2010
  • May 2010
  • April 2010
  • March 2010
  • February 2010
  • January 2010
  • December 2009
  • November 2009
  • October 2009
  • September 2009
  • August 2009
  • July 2009
  • June 2009
  • May 2009
  • April 2009
  • March 2009
  • February 2009
  • January 2009
  • December 2008
  • November 2008
  • October 2008
  • September 2008
  • August 2008
  • July 2008
  • June 2008
  • May 2008
  • April 2008
  • March 2008
  • February 2008
  • January 2008
  • December 2007
  • November 2007
  • October 2007
  • September 2007
  • August 2007
  • July 2007
  • June 2007
  • May 2007
  • April 2007
  • March 2007
  • February 2007
  • January 2007
  • December 2006
  • November 2006
  • October 2006
  • September 2006
  • August 2006
  • July 2006
  • June 2006
  • May 2006
  • April 2006
  • Show More
February 5, 2020 3:16PM

Holding Section 230 Hostage, Sen. Graham Demands Platforms EARN IT

By Matthew Feeney and Will Duffield

SHARE

Media Name: phone321.jpg

Senator Lindsey Graham (R-SC) is the latest Republican member of Congress intent on demonstrating his anti-“Big Tech” credentials. His colleagues Sen. Joshua Hawley (R-MO) and Sen. Ted Cruz (R-TX) have led the charge against Silicon Valley, focusing on the weak claim that large firms such as Google, Facebook, and Twitter are censoring conservative activists and lawmakers. In a draft bill leaked last week Graham takes a different approach, though it is no less misguided. If passed as written, Graham’s bill, which targets Big Tech’s supposed unwillingness to aid law enforcement, would put the security and privacy of law abiding Americans and residents at risk.

Grahams bill is titled the EARN IT Act. It’s an elaborate acronym that stands for Eliminating Abusive and Rampant Neglect of Interactive Technologies Act. As the not‐​so‐​subtle title suggests, Graham is unhappy with what he perceives to Big Tech’s lack of effort and cooperation when it comes to combating crime, especially child sexual exploitation. During a Senate Judiciary hearing on encryption in December Graham issued a warning to Facebook and Apple: “this time next year, if we haven’t found a way that you can live with, we will impose our will on you.” In the weeks since the hearing Graham has clearly thought about ways he might be able to impose his will on Big Tech. The result is the EARN IT Act, which is co‐​sponsored by Graham’s colleague Sen. Richard Blumenthal (D-CT).

At the heart of the EARN IT Act is an amendment to Section 230 of the Communications Decency Act of 1996. The law protects “interactive computer services” such as Youtube, Facebook, and Twitter from the majority of content posted on their platforms by third party users. The EARN IT Act conditions Section 230’s intermediary liability protections related to child sex abuse material (CSAM) content on tech platforms’ adherence to a code of best practices approved by a commission. The commission would be made up of the Attorney General, the Federal Trade Commission chairman, the Department of Homeland Security secretary, and members appointed by the majority and minority from both houses of Congress. Platforms would be rendered the “publishers”of CSAM material uploaded by users unless they submit a certification of compliance with the code. The bill imposes criminal penalties on false certifications and creates a new civil cause of action to be used against firms that don’t comply.

Section 230 has become a popular target for modification or repeal. Graham’s bill treats it like a carrot. Despite Section 230’s broad protections, under 18 U.S. Code § 2258A platforms are already responsible for any CSAM they discover but fail to report to the FBI. Platforms that are made aware of CSAM face severe criminal penalties for failing to deal with it. Existing police powers have spurred platforms to police CSAM far more effectively than other sorts of illegal content.

Platform reporting requirements render the issue visible, at least in America, drawing critical attention to platform moderation efforts. When firms become more effective in identifying illegal material, the resulting reports are taken as evidence of greater CSAM prevalence, not better discovery mechanisms. Nevertheless, cross platform arrangements to remove previously logged CSAM material, such as PhotoDNA, have reduced its spread.

Elsewhere, the problem is less visible but more prevalent. Yandex, a popular Russian search engine, does not participate in PhotoDNA, but does not report its discovery of child sexual abuse material either. While Google and Microsoft’s implementation of PhotoDNA cut CSAM searches more than in half, Yandex remains a popular vector for pedophiles. The hyper‐​transparency associated with digital record keeping and reporting makes it easy to blame the messenger. But doing so is a mistake.

While AG Bill Barr can enforce reporting and takedown requirements, he cannot prohibit the provision of encrypted messaging services or demand backdoor access to them. Existing snooping authorities, formalized in the Communications Assistance for Law Enforcement Act, exempt “information services” from wiretapping access mandates.

However, by privileging Section 230’s shield on compliance with an indeterminate evolving code, Graham and Barr can finally dissuade platforms from providing Americans with secure encrypted messaging. Encryption is useful to criminals, child predators included. However, the vast majority of encrypted messages flow between lawful conversants trying to maintain a modicum of privacy and security in an often‐​threatening digital world. Holding Section 230 hostage in an attempt to limit public access to encryption threatens speech freedoms and endangers privacy and security.

Those proposing the effective end to encryption have difficult questions to answer about security. If companies felt compelled to eliminate encryption messaging services their devices would become a major target of foreign intelligence agencies and criminals. Such a mandate would put the privacy and security of law‐​abiding citizens and residents at risk.

It’s true that criminals take advantage of encryption. But so do journalists, activists, dissidents, Congressional staffers, intelligence officials, and (as of early January) the 82nd Airborne. All would have their privacy and security compromised by mandated law enforcement access to communications. Organized criminals and oppressive governments wouldn’t hesitate to take advantage of the end of encryption. The results could be deadly.

Related Tags
Free Speech and Technology, Free Speech and Civil Liberties, Technology and Privacy

Stay Connected to Cato

Sign up for the newsletter to receive periodic updates on Cato research, events, and publications.

View All Newsletters

1000 Massachusetts Ave, NW,
Washington, DC 20001-5403
(202) 842-0200
Contact Us
Privacy

Footer 1

  • About
    • Annual Reports
    • Leadership
    • Jobs
    • Student Programs
    • Media Information
    • Store
    • Contact

Footer 2

  • Experts
    • Policy Scholars
    • Adjunct Scholars
    • Fellows
  • Events
    • Upcoming
    • Past
    • Event FAQs
    • Sphere Summit

Footer 3

  • Publications
    • Books
    • Cato Journal
    • Regulation
    • Cato Policy Report
    • Cato Supreme Court Review
    • Cato’s Letter
    • Human Freedom Index
    • Economic Freedom of the World
    • Cato Handbook for Policymakers

Footer 4

  • Blog
  • Donate
    • Sponsorship Benefits
    • Ways to Give
    • Planned Giving
Also from Cato Institute:
Libertarianism.org
|
Humanprogress.org
|
Downsizinggovernment.org