It’s not clear that companies have to “earn” what are already protections provided under the First Amendment: to publish, and to allow their users to publish, with very few legal restrictions. But if the EARN IT Act were passed, tech companies could be held liable if their users posted illegal content. This would represent a significant and potentially devastating amendment to Section 230, a much-misunderstood law that many consider a pillar of the internet and the businesses that operate on top of it.
When internet companies become liable for what their users post, those companies aggressively moderate speech. This was the chief outcome of FOSTA-SESTA, the last bill Congress passed to amend Section 230. It was putatively written to eliminate sex trafficking, and was passed into law after Facebook endorsed it.
…One item on that checklist could be eliminating end-to-end encryption in messaging apps, depriving the world of a secure communications tool at a time when authoritarian governments are surging around the world.
…The bill’s backers have not said definitively that they will demand a backdoor for law enforcement (and whoever else can find it) as part of the EARN IT Act. (In fact, Blumenthal denies it.) But nor have they written the bill to say they won’t. And Graham, one of the bill’s cosponsors, left little doubt on where he stands:
“Facebook is talking about end-to-end encryption which means they go blind,” Sen Graham said, later adding, “We’re not going to go blind and let this abuse go forward in the name of any other freedom.”
Graham raises the prospect that the federal government will get what it has long wanted — greatly expanded power to surveil our communications — by burying it in a complex piece of legislation that is nominally about reducing the spread of child abuse imagery.