There is no shortage of legislation addressing Section 230 of the Communications Decency Act introduced in the 117th Congress, with some legislators seeking to amend the liability provisions and others seeking to repeal it altogether. Sen. Lindsey Graham (R-SC) is trying to do both.
The senior senator from South Carolina introduced a bill (S. 2972) in October 2021 to repeal Section 230, which would permit social media companies to be sued for content posted by third-parties on their platform. Rep. Marjorie Taylor Green (R-GA) introduced legislation last week that would also abolish the liability protection.
However, Sen. Graham’s Eliminating Abusive and Rampant Neglect of Interactive Technologies (EARN IT) Act (S. 3538) deserves special recognition on the list of least wanted tech bills.
4. EARN IT Act
The EARN IT Act was introduced at the start of 2022 with bipartisan support. The bill would limit liability protections for online platforms for alleged online exploitation of children.
The purported goal of the bill is noble. But, as CEI’s Jessica Melugin points out, “Bad policy made with good intentions still delivers poor results.” The EARN IT Act mimics past attempts to curb Section 230 protections. Sen. Graham introduced a similar version of the bill in 2020 during the 116th Congress. And the most recent version makes the same mistakes as the Fight Online Sex Trafficking Act (FOSTA) that was passed in 2018.
As Melugin points out:
FOSTA’s reduced liability protections made hosting borderline or questionable content too risky for many websites. That pushed online interactions between sex workers and clients offline and back onto the streets, where they are often more dangerous. FOSTA shows how curtailing liability in this way will have unintended consequences, no matter how noble the goals of the legislation. That should be a red flag for those considering adopting the same approach with the EARN IT Act.
The most recent reintroduction of the EARN IT Act also raises significant privacy concerns for the average user. Some have contended that the legislation would disincentivize the use of encryption services by Internet companies, an important tool in protecting user data and privacy from both private and government actors. It would also encourage affected companies to scan all user messages, essentially pressuring private entities to do what government officials are prohibited from doing.
Furthermore, the EARN IT Act is expected to disproportionally affect smaller Internet companies. While complying with the legislation would pose logistical problems for large tech platforms, the effect on small companies and startups could be fatal.
Protecting children from violent crimes and sexual exploitation is of paramount importance. No one disagrees with that. But it’s also important that legislation accomplishes what it is intended to accomplish. The EARN IT Act would not.
Alex Reinauer is a Research Fellow with the Center for Technology and Innovation at the Competitive Enterprise Institute, focusing on tech policy and antitrust.