February 2022 Legislative Update

The Biden Administration’s plan to focus on passing scaled-back portions of his domestic agenda were quickly sidelined by the announced retirement of U.S. Supreme Court Justice Stephen Breyer and Russia’s invasion of Ukraine. Despite this rapid reordering of government’s priorities, the Senate Judiciary Committee slipped in markup and passage of The EARN IT Act (S. 3538), a bill that would

  • Establish a committee to study and recommend industry “best practices” to prevent child sexual abuse material (CSAM) on the internet, and
  • Amending Section 230 of the Communications Decency Act (CDA) to strip web platforms of immunity where they “knowingly” distribute CSAM
  • Establish a platform’s use of end-to-end encryption as a possible indicator of culpability for CSAM

The bill passed the Senate Judiciary committee on a unanimous basis. Now, we wait to see if the Senate leadership will schedule a vote before the full Senate. EARN IT was introduced in the Senate on January 31, and moved to committee markup a mere two weeks later, an extraordinary timeline made possible by the fact that the same bill was passed unanimously out of the Judiciary Committee in 2020 — but died without receiving a full Senate vote.

The big internet platforms lobbied lawmakers about the threats to encryption and privacy rights — concerns we share. However we quickly identified a different problem: while EARN IT supposedly only targets platforms that “knowingly” distribute CSAM, the actual language of the bill would allow criminal and civil suits against a platform even if they did not know that CSAM was present. In fact, even an attempted upload of CSAM could trigger criminal charges, even if the platform immediately blocked and reported it.

Under the current language, the simple, automated conversion of a file to a platform’s preferred format, prior to any opportunity for review or moderation, would be prosecutable as “distribution” or “reproduction.” FSC learned from committee counsel that this problem had not been raised previously. We stressed that, if the issue were not clarifying this issue, the question would only be resolved via long, expensive litigation.

Should EARN IT pass, social media platforms, web hosts and other online platforms would manage risk by simply excluding adult content altogether; a devastating result for many FSC members who depend on the internet.

In the brief window between introduction and committee passage, FSC worked with both Democratic and Republican committee counsel to address this problem, proposing language which we believe would resolve the problem. While time constraints prevented amendment prior to the Judiciary committee vote, several Senators raised issues with the language during the hearing, securing promises from the sponsors that additional changes could be made prior to consideration by the full Senate. FSC continues to work on a bipartisan basis with several Senate offices to remedy this problem.

The EARN IT Act was also introduced in the House (H.R. 6544), was referred to three committees (Energy and Commerce [E&C], Judiciary, and Education and Labor), and no further action is scheduled at this time. The same bill died in the House in the prior Congressional session and at the same point in the process (i.e. introduced but no further action taken). As such, 6544 has much further to travel before a floor vote. House leadership has not taken a position on the bill, but we understand that the Speaker has serious reservations about the bill.

FSC is working on target House Members to secure an amendment should the bill be taken up by committee or considered by the House in any form.