It’s Back: Senators Want EARN IT Bill to Scan All Online Messages

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by Joe Mullin, Activist Post:

People don’t want outsiders reading their private messages—not their physical mail, not their texts, not their DMs, nothing. It’s a clear and obvious point, but one place it doesn’t seem to have reached is the U.S. Senate.

A group of lawmakers led by Sen. Richard Blumenthal (D-CT) and Sen. Lindsey Graham (R-SC) have re-introduced the EARN IT Act, an incredibly unpopular bill from 2020 that was dropped in the face of overwhelming opposition. Let’s be clear: the new EARN IT Act would pave the way for a massive new surveillance system, run by private companies, that would roll back some of the most important privacy and security features in technology used by people around the globe.

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It’s a framework for private actors to scan every message sent online and report violations to law enforcement. And it might not stop there. The EARN IT Act could ensure that anything hosted online—backups, websites, cloud photos, and more—is scanned.

TELL CONGRESS TO REJECT THE EARN IT ACT

New Internet Rules, From Juneau to Jackson

The bill empowers every U.S. state or territory to create sweeping new Internet regulations, by stripping away the critical legal protections for websites and apps that currently prevent such a free-for-all—specifically, Section 230. The states will be allowed to pass whatever type of law they want to hold private companies liable, as long as they somehow relate their new rules to online child abuse.

The goal is to get states to pass laws that will punish companies when they deploy end-to-end encryption, or offer other encrypted services. This includes messaging services like WhatsApp, Signal, and iMessage, as well as web hosts like Amazon Web Services. We know that EARN IT aims to spread the use of tools to scan against law enforcement databases because the bill’s sponsors have said so. In a “Myths and Facts” document distributed by the bill’s proponents, it even names the government-approved software that they could mandate (PhotoDNA, a Microsoft program with an API that reports directly to law enforcement databases).

The document also attacks Amazon for not scanning enough of its content. Since Amazon is the home of Amazon Web Services, host of a huge number of websites, that implies the bill’s aim is to ensure that anything hosted online gets scanned.

Separately, the bill creates a 19-person federal commission, dominated by law enforcement agencies, which will lay out voluntary “best practices” for attacking the problem of online child abuse. Regardless of whether state legislatures take their lead from that commission, or from the bill’s sponsors themselves, we know where the road will end. Online service providers, even the smallest ones, will be compelled to scan user content, with government-approved software like PhotoDNA. If EARN IT supporters succeed in getting large platforms like Cloudflare and Amazon Web Services to scan, they might not even need to compel smaller websites—the government will already have access to the user data, through the platform.

A provision of the bill that purports to protect services using encryption (Section 5, Page 16) doesn’t come close to getting the job done. State prosecutors or private attorneys would be able to drag an online service provider into court over accusations that their users committed crimes, then use the fact that the service chose to use encryption as evidence against them—a strategy that’s specifically allowed under EARN IT.

It’s hard to imagine anyone daring to use this supposed defense of encryption. Instead, they’ll simply do what the bill sponsors are demanding—break end-to-end encryption and use the government-approved scanning software. Just as bad, providers of services like backup and cloud storage who don’t currently offer user-controlled encryption are even less likely to protect their users by introducing new security features, because they will risk liability under EARN IT.

A Lot of Scanning, Not A Lot of Protection

Senators supporting the EARN IT Act say they need new tools to prosecute cases over child sexual abuse material, or CSAM. But the methods proposed by EARN IT take aim at the security and privacy of everything hosted on the Internet.

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