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New Section 230 Changes Threaten Online Civil Rights Under the Guise of Fighting Child Porn

New Section 230 Changes Threaten Online Civil Rights Under the Guise of Fighting Child Porn

There’s no understating the importance of Section 230, a provision within the United States Communications Decency Act that protects “interactive computer services” from being sued for the crimes of third-party content creators. In allowing sites to administrate the online space without constant legal bureaucracy, this one US law has global impacts beyond just one country, particularly in new fights over free speech versus child porn.

On Wednesday, it was reported in The Washington Post that Congress seeks to pass The EARN IT Act, a new bipartisan bill from Sen. Lindsey Graham (R-SC) and Sen. Richard Blumenthal (D-CT) to reform Section 230 protections in the fight against sexual abuse and the spread of child pornography. It would effectively establish a new government commission, composed entirely of administration officials and undetermined outside experts, who would “set the best practices” for removing child sexual exploitation and abuse material online, and failure to cooperate results in the removal of Section 230 status.

Although the goal is clearly quite admirable, there’s a case to be made for why the law is not only a power grab that ignores the problem, but will unintentionally drive it further into dark web obscurity as people’s online speech freedoms become natural collateral damage. My reporting is quite clear that Silicon Valley should be held responsible for its own actions, as well as the actions of its privately governed users. In the years since Big Tech has become a central issue on Capitol Hill, both Democrats and Republicans continue to show their fundamental misunderstanding of the digital marketplace and how decades-old laws and tactics just don’t work on this highly complex online scale.

According to a report from The Verge, a January draft of the bill concerned privacy and speech advocates, seeming to grant the committee an uncritical free pass on making nearly any regulatory rule they deemed to be a “best practice”. Ironically, the establishing of the committee itself had more checks and balances than those that would govern the actual operations of the committee.

This is in addition to the Justice Department having “substantial influence” over the committee which could result in law enforcement being granted undue access to users’ private conversations, akin to Attorney General William Barr demanding that Apple unlock phones for criminal investigations without warrants. 

“We must also recognize the benefits that Section 230 and technology have brought to our society, and ensure that the proposed cure is not worse than the disease,” Barr said last month, all the while “analyzing the impact” of Section 230 and how it can be legally undermined.

“It’s a deeply flawed and counterproductive bill,” urged fellow Sen. Ron Wyden (D-OR), one of Section 230’s co-authors, in a recent statement to the press. “It’s a transparent and deeply cynical effort by a few well-connected corporations and the Trump administration to use child sexual abuse to their political advantage, the impact to free speech and the security and privacy of every single American be damned… The biggest tech companies have enough lawyers and lobbyists to survive virtually any regulation Congress can concoct. It’s the start-ups seeking to displace Big Tech that would be hammered by the constant threat of lawsuits.”

Wyden was joined by several activist groups, such as The Electronic Frontier Foundation, the American Civil Liberties Union and the Internet Association, each giving separate statements  that it’s “custom-designed to break encryption” and “threatens the safety of activists, domestic violence victims, and millions of others who rely on strong encryption” and their digital freedoms. 

“IA and its member companies share the goal of helping to eradicate child exploitation online and offline. We have very strong concerns, however, that the EARN IT Act as introduced may impede existing industry efforts to achieve this shared goal.”

In fairness, the bill is also backed by the National Center for Missing and Exploited Children and the National Center on Sexual Exploitation, and the messaging of these protections being held under anti-abuse obligations could be an interesting means of holding tech to account, assuming the demands themselves can be justified. 

“For the first time, you will have to earn blanket liability protection when it comes to protecting minors. Our goal is to do this in a balanced way that doesn’t overly inhibit innovation, but forcibly deals with child exploitation,” argued Sen. Graham, a known conservative critic of Big Tech, in a recent counter-statement.

“Online child sexual exploitation and abuse is a global crime that demands a global response,” reads a DOJ document obtained by the Post, alongside support from Australian, Canadian, New Zealand, and the UK law enforcement. “In an increasingly digital and borderless world, this crime is becoming easier to commit, more extreme in nature and growing in scale.” Whether the bill actually addresses those issues, all the while maintaining constitutional protections for privacy and freedom of speech, remains to be seen. Given the nature of their 11 “voluntary principles” for preventing online child abuse are voluntary in name only, don’t hold your breath.

“The structure proposed in the Earn It Act is essentially coercive of companies,” said Emma Llansó, director of the Free Expression Project at the Center for Democracy and Technology, who spoke to the Washington Post. As it stands, refusing to adopt the policies results in losing legal protections — no matter the company’s freedom of speech in terms of services policies, freedom of association in who is banned, or their privacy protections via encryption. By implicitly making those Silicon Valley executives accountable for facilitating child sexual exploitation, it limits the ability of Americans and users across the world to secure their online services, in the hope that it may stop a child from being exploited when the issue is further down the dark web.

This was demonstrated after the president signed two controversial bills into law, FOSTA and SESTA, which gave Congress a good dog and pony show about fighting the sex trafficking trade while only removing accessible sites which engaged in it, forcing it down into the black market where these crimes are harder to track. 

“It demonstrates that everyone has a role in fighting Internet misconduct,” concluded Matthew Schruers, the president of the Computer & Communications Industry Association, which represents companies including Facebook and Google. “A new federal bureaucracy regulating private Internet companies’ content management and technology choices, however, is not the way to fight crime online.”