Graham, Blumenthal Prepare Significant Amendment for Earn It Act Markup

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.”