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Proposed Bill Could Threaten Apple, Facebook Messaging Platforms

A bipartisan bill aimed at preventing online child exploitation could also blunt end-to-end encryption for messaging platforms and potentially strip tech companies of protection from prosecution for publishing certain content.

The Eliminating Abuse and Rampant Neglect of Interactive Technologies Act of 2019 (EARN IT Act) is co-sponsored by Senators Lindsey Graham (R-SC), chairman of the Senate Judiciary Committee, and Richard Blumenthal (D-CT). The senators have reportedly been quietly circulating a draft version of the bill to other lawmakers.

EARN IT would establish a 15-member National Commission on Online Child Exploitation Prevention to include the Chairman of the Federal Trade Commission, the Attorney General and the Secretary of Homeland Security, tasked with determining a set of best practices for providers of online services to battle child exploitation. Tech companies would have to comply with the best practices to retain Section 230 protection that shield them from prosecution for posting controversial content such as crimes, hate speech and extremism. Those that failed to adhere would be stripped of their Section 230 immunity and potentially prosecuted. The measure could affect a wide range of social media platforms and cloud service providers, including Apple’s iCloud and Facebook’s WhatsApp, which together have nearly 2.5 billion users.

It’s important to note that while Section 230 protects companies that host third-party content from legal liability for what their users say and do, it doesn’t provide immunity against prosecutions under federal criminal law, or liability based on intellectual property law, communications privacy law, or certain sex trafficking laws.

The Electronic Frontier Foundation (EFF) is highly critical of the proposed bill’s impact, particularly its potential to undermine Section 230, which is widely regarded as a core tenet of Internet free speech. The EARN IT Act “grants sweeping powers to the Executive Branch [and] opens the door for the government to require new measures to screen users’ speech and even backdoors to read your private communications,” the EFF wrote in a blog post. “Congress must forcefully reject this dangerous bill before it is introduced,” the blog said.

In a Senate Judiciary hearing last December, a bipartisan group of senators signaled their intention to press tech companies to design product encryption to comply with court orders mandating access by authorized officials. Graham, in particular, warned Apple and Facebook: “My advice to you is to get on with it, because this time next year, if we haven’t found a way that you can live with, we will impose our will on you.”

So far, no solution has emerged that reconciles privacy with national security concerns. In 2016, a skirmish erupted between Apple and the Federal Bureau of Investigation when the iPhone maker refused to comply with a court order to unlock a terrorist’s device for law enforcement to view. Apple feared that an unlocked iPhone could compromise the security of millions of its users worldwide. In the incident’s wake, both lawmakers and tech executives called for new legislation that would protect users’ privacy and assist law enforcement where none now exist.

EARN IT could be referenced to force providers of end-to-end encrypted messaging services to build in backdoors to their products, the EFF said. “These demands would put encryption providers like WhatsApp and Signal in an awful conundrum: either face the possibility of losing everything in a single lawsuit or knowingly undermine their own users’ security, making all of us more vulnerable to criminals,” the blog said.

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