Industry Concerns with S. 1207 – the EARN IT Act

SIIA and 10 organizations have serious concerns that the recently reintroduced S. 1207, the Eliminating Abusive and Rampant Neglect of Interactive Technologies (EARN IT) Act, would hinder law enforcement’s efforts against online child exploitation, disincentivize companies to continue to detect and block CSAM, impair lawful speech and conduct, limit technological innovation, and threaten companies’ ability to provide end-to-end encryption, in turn threatening the privacy of millions of law-abiding citizens. We repeatedly shared similar concerns about prior versions of the bill in past sessions of Congress, and our concerns have not been addressed.

This legislation also raises serious concerns as it jeopardizes the ability of American companies to provide secure end-to-end encrypted communications to consumers worldwide. S. 1207 leaves open the possibility that the provision of encryption services can be used against companies as a negative factor in determining liability. Furthermore, S. 1207 specifies that courts will be able to consider whether a provider utilizes end-to-end encryption as evidence in cases brought under this Act — meaning courts could consider the use of end-to-end encryption as evidence to find a provider as complicit in all CSAM crimes across their service. Companies that provide secure tools that enable encryption would face overwhelming litigation risks and the ability of Americans to privately communicate would be harmed.

Additionally, the bill would threaten the ability of internet services from hosting user-created content due to increased and uncertain liability risks. Some companies would respond by excessively filtering user-generated content, thereby significantly limiting the scope and diversity of free speech online.

Lastly, we are concerned that the bill would encourage more state legislatures to enact new laws restricting the ability of services to design and implement features that protect the privacy and security of users. These state laws could have the effect of compelling services to conduct searches for CSAM content, raising potential “state actor” problems under the Fourth Amendment, which would make prosecuting criminal activity more difficult.

While we have concerns about S. 1207, we are committed to combating online child exploitation, and look forward to working with members of the Committee on these serious issues.

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