Unanimous Senate Judiciary Passes Earn It Act for Third Time

The Eliminating Abusive and Rampant Neglect of Interactive Technologies Act (Earn It Act) has never received a Senate floor vote or a vote from any House committee. The bill amends Section 230 of the Communications Decency Act and removes “blanket immunity” from federal civil, state criminal and state civil child sexual abuse material (CSAM) laws. It would establish a national commission on child sex exploitation led by heads of the FTC, DOJ, the Department of Homeland Security and 16 members, including industry and human rights experts, appointed by Congress. The commission would establish best business practices for social media companies, and if companies don’t follow those practices, they would risk losing Section 230 liability protections.

Graham said during Thursday’s markup he’s sure every member will vote in favor of the legislation, but it “will eventually go nowhere.” Co-author Richard Blumenthal, D-Conn., and Chairman Dick Durbin, D-Ill., said they hope Graham's wrong. Graham is right that Congress is “in for a fight” and that tech’s “army of lobbyists” shouldn’t be underestimated, said Blumenthal: But the bill offers a “narrow, targeted carve-out” for Section 230 that will make platforms more accountable. Kids are being “cyberbullied” to death and sexually extorted to the point of suicide, said Sen. Marsha Blackburn, R-Tenn.

Members who highlighted problematic language in the bill included Sens. Mike Lee, R-Utah; Alex Padilla, D-Calif.; Jon Ossoff, D-Ga.; and Cory Booker, D-N.J. Lee credited Durbin for offering a manager’s amendment Thursday but said the changes don’t go far enough in altering language on a “recklessness” standard. Lee said the lack of a clear definition of recklessness in the bill risks states interpreting the law in an unintended way. Padilla shared concerns with human rights organizations about the bill resulting in censorship of lawful speech that will disproportionately harm minority communities, most notably LGBTQ individuals. Ossoff and Booker shared concerns about the bill weakening encryption standards and cybersecurity in general. Sen. Peter Welch, D-Vt., backed Lee’s proposed changes, saying they would help improve privacy protections included in the bill.

Graham said he’s working on legislation with Sen. Elizabeth Warren, D-Mass., to establish a new tech regulator that would license social media platforms similar to how Realtors are licensed. Graham and Warren told us about their legislative plans in September, but the bill hasn't been introduced (see 2209160053). If Congress fails to pass the Earn It Act and this new tech regulator bill, Graham said he’s prepared to introduce legislation to repeal Section 230. Courtrooms need to be opened up for victims who were wronged, he said.

Groups opposed to the Earn It Act include Public Knowledge, the American Civil Liberties Union, the Electronic Frontier Foundation, the Center for Democracy & Technology, Fight for the Future, Demand Progress, TechFreedom, Mozilla, Tumblr and various tech industry groups including NetChoice and the Computer & Communications Industry Association. Sen. Ron Wyden, D-Ore., voiced opposition, saying the bill is as problematic as the last legislation used to carve out Section 230, the Stop Enabling Sex Traffickers Act (SESTA) and the Fight Online Sex Trafficking Act (FOSTA). The Earn It Act would allow states to regulate the internet, lead to mass litigation and make it harder for law enforcement to track child predators much as SESTA-FOSTA did, he said. Earn It Act supporters include the National Center on Sexual Exploitation, National Children’s Alliance, National Organization for Women, Rape, Abuse & Incest National Network, National District Attorneys Association, U.S. Institute Against Human Trafficking, Rights4Girls and Equality Now.