Bill From Graham, Blumenthal Divides Encryption, Victim Advocates
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.
Sign up for a free preview to unlock the rest of this article
Export Compliance Daily combines U.S. export control news, foreign border import regulation and policy developments into a single daily information service that reliably informs its trade professional readers about important current issues affecting their operations.
Tech companies are interested only in blocking legislation and regulation, said National Center on Sexual Exploitation General Counsel Benjamin Bull. He urged industry to work with Blumenthal and Chairman Lindsey Graham, R-S.C., in shaping the bill rather than fighting it. The industry’s complacency left Congress no choice, he argued, saying child predators and traffickers run rampant on platforms like Instagram, Snapchat and TikTok.
Computer and Communications Industry Association President Matt Schruers said the Earn it Act will force companies to weaken industry-standard security and encryption measures. It’s also problematic because of its impact on Section 230 of the Communications Decency Act, allowing the government to manage speech on platforms, he said. The Internet Association cited a recent blog post raising concerns the Earn It Act would allow criminal defendants in child exploitation cases to suppress evidence with Fourth Amendment arguments.
Blumenthal said he might seek to clarify encryption aspects of the bill. Graham said he wants to keep the encryption debate separate. Fixing the encryption aspects might be possible, but that’s not the only issue with the bill, Schruers said. CCIA also opposes a bill from Graham and Republicans that would let police lawfully access encrypted data (see 2006240064). To convenience law enforcement, it would make products and phones less safe, Schruers said: Any time companies are mandated to keep keys under doormats, it’s an invitation for bad actors to find those keys.
There’s nothing Blumenthal could do to clarify the Earn It Act to avoid weakening encryption, said New America's Open Technology Institute Senior Policy Analyst Andi Wilson Thompson. OTI doesn’t support Graham’s encryption bill either, she said: It’s impossible to guarantee police access to encrypted communications without harming user security, she said, and the Earn It Act is another effort by DOJ to weaken encryption.
Access Now opposes both bills, said Legislative Manager Jennifer Brody. Assigning a government commission to decide how Section 230 applies to companies will have a chilling impact on speech and content moderation, she said of the Earn It Act. Brody agreed with the general sentiment of a bill from Sen. Ron Wyden, D-Ore., that would direct $5 billion for investigations and resources about online child abuse (see 2005060015).
The National Center on Sexual Exploitation also supports Wyden’s bill, but increasing investigatory resources doesn't solve the whole problem, Bull said. Internet regulation is the only way to resolve child exploitation issues, he said, because Big Tech is unwilling to act. Congress is either going to regulate, or FTC and DOJ enforcers are going to intervene with antitrust cases, he said.
Legislators need to account for victims of stalking and harassment when revisiting Section 230, said Future of Privacy Forum Vice President-Policy John Verdi. If there’s an area of improvement, it starts with individuals who have been victimized, he said. FPF hasn’t taken a position on the Earn It Act or Graham’s encryption bill. Verdi voiced support for an “accurate and fulsome” discussion on the benefits of strong encryption.