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The EARN IT Act threatens encryption

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By | The senators doth protest too much, methinks. Despite its well-intentioned attack against child predators, the EARN IT Act by Sens. Richard Blumenthal, D-Connecticut, and Lindsey Graham, R-South Carolina, unsubtly attacks encryption. Regardless of costuming or design, the EARN IT Act will undermine the best tool we have to protect our kids and ourselves from surveillance online.Advanced by the Senate Judiciary Committee earlier this month, the EARN IT Act is designed to stop child abuse. Unfortunately, it does the opposite —&nbsp;inhibiting prosecution of child predators by undermining encryption.Encryption is pivotal to everything we do, especially now that we are increasingly dependent on remote work and business during the COVID-19 pandemic. Today, we use encryption technology to protect our communications with family and friends, our documents, and our shopping. But that very technology is at risk because of the EARN IT Act.Graham and Blumenthal claim the EARN IT Act does not pose a risk to encryption– a valuable tool we rely upon to save ourselves from prying eyes online. Yet it is clear from the language used in previous drafts, by his staffers, and by Blumenthal himself that the EARN IT Act is designed to at best assault encryption and at worst threaten the very fabric of the internet.The EARN IT Act originally, and intentionally, assaulted encryption protections via a “reckless” knowledge standard. In essence, under the original text of the Act, if a tech company encrypted any user content then they could be seen as “recklessly” aiding the distribution of child exploitation online. Because of this, the original EARN IT Act could have forced businesses to abandon encryption or face untold liability.Organizations all across the aisle from&nbsp;ACLU&nbsp;and&nbsp;Human Rights Watch&nbsp;to&nbsp;Americans for Prosperity&nbsp;as well as&nbsp;hundreds of thousands of ordinary Americans&nbsp;called out this transparent assault on civil liberties for jeopardizing our security.&nbsp;Facing this backlash, the EARN IT Act’s authors removed explicit mention of the “reckless” standard to address concerns that the bill was a federal attack on encryption. But this was just added costuming and the threat to civil liberties remains lurking in the bill.The new and equally terrifying EARN IT Act maintains the threat of the “reckless” standard even if it’s not explicitly in the text. The bill now passes the buck to the states, allowing state law to take precedent. So while these tech companies don’t face the “reckless” standard attacking encryption at the federal level, they do face it across the states. The end result is simple — a bill that ostensibly removes the “reckless” standard to endear the bill to the public all the while covertly adding that very same standard back in.To further solidify this narrative, the sponsors accepted a friendly amendment from Senator Leahy, D-Vermont, who, to his credit, thought his amendment would eliminate the threat to encryption once and for all. Unfortunately, despite Leahy’s efforts, encryption remains at risk.At face value, the Leahy Amendment seeks to create a shield around encryption but gaps in the armor still remain. This includes gaps that allow things like “client-side scanning”– requiring device makers and platforms to scan all data before and after encryption. Or mandates tech companies create custom operating systems for iPhone and Android devices — something the FBI tried to make Apple create just four years ago.So, while the EARN IT Act no longer explicitly compels the backdoor to encryption, it does compel the equivalent of an encryption TSA. Our messages are protected while traveling in digital airspace, but before take-off and landing, the government can compel “client-side scanning”, formerly known as reading your messages on your device.If this was an isolated instance, the new EARN IT Act could be written off as a bad legislative draft. But combined with Blumenthal’s calls for platforms policing content and Graham’s new bill to end encryption, one thing is clear– this is a costumed way to harm encryption.Despite its best intentions the EARN IT Act can and will threaten encryption and therefore the very core of how we keep ourselves and our children safe on the internet.Carl Szabo is the vice president and general counsel for NetChoice, a trade organization.We invite you to use our commenting platform to engage in insightful conversations about issues in our community. We reserve the right at all times to remove any information or materials that are unlawful, threatening, abusive, libelous, defamatory, obscene, vulgar, pornographic, profane, indecent or otherwise objectionable to us, and to disclose any information necessary to satisfy the law, regulation, or government request. We might permanently block any user who abuses these conditions.Get the latest news delivered daily!Follow UsMost PopularClose

By | The senators doth protest too much, methinks. Despite its well-intentioned attack against child predators, the EARN IT Act by Sens. Richard Blumenthal, D-Connecticut, and Lindsey Graham, R-South Carolina, unsubtly attacks encryption. Regardless of costuming or design, the EARN IT Act will undermine the best tool we have to protect our kids and ourselves from surveillance online.Advanced by the Senate Judiciary Committee earlier this month, the EARN IT Act is designed to stop child abuse. Unfortunately, it does the opposite —&nbsp;inhibiting prosecution of child predators by undermining...

The EARN IT Act threatens encryption

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