Today is day that ends with a “y,” so you know what that means: your government is doing something stupid that will have major ripple effects on the economy. Do these guys ever take a break?
On Thursday, the Senate Judiciary Committee voted to pass the EARN It Act, meaning the bill will now move to the Senate floor. This bill has been lurking in the corners of Congress since 2020, when free market advocates and civil libertarians first raised concerns.
It’s a lengthy bill, but here’s the gist of it.
The government wants private companies to assist them in law enforcement, in this case, the stated goal is helping them combat child abuse. Frankly, enlisting the private sector in these endeavors is problematic on its face. (No company should be forced to help the government do its job. We pay more than enough tax money for them to do it.)
But, it does seem that some supporters of this bill are well-intentioned. They want to keep kids safe from abuse, as do we all. But, as is so often the case when it comes to politics, big-government policies undertaken in the name of “safety” often fail to improve anything but make us all worse off in the process.
Essentially, this bill seeks to strip online companies of their Section 230 liability protections unless they provide law enforcement with third-party content. Um, yikes on multiple fronts.
For one thing, Section 230—though often vastly misinterpreted—just ensures the First Amendment is applied to the internet. It simply says companies aren’t liable for what you may write on their platforms, instead, you, the individual, are responsible for what you say.
That’s just common sense.
Even without Section 230, the courts would still likely find this to be true in most cases. The problem is that without Section 230, companies would have to spend a lot of money to defend themselves in frivolous lawsuits, which would put small competitors out of business and likely incentivize companies to censor people more to avoid the costs.
Something like the First Amendment should never be conditional. But that’s what Congress is seeking to do with the Earn It Act—withdraw speech protections for companies who won’t comply and turn over information to law enforcement. This means free speech isn’t the only civil liberty violated here.
Police are supposed to secure a warrant before they can search your things. To go around that by forcing private companies to do their dirty work for them, the government is violating the 4th Amendment’s privacy protections and the Fifth Amendment’s Due Process protections. This is ghastly and a shameless usurpation of our Constitution.
Believe it or not, it gets even worse. Some people in Congress appear to be so mad at “Big Tech” that they’ve truly lost their marbles. In their efforts to go after online companies here and subvert basic civil liberties, they wrote a bill so terrible it’s likely to actually harm prosecutions against sexual predators.
While Congress may have zero respect for our Bill of Rights, fortunately some in our court system still do. And there is good legal precedent for throwing out evidence that has been collected through third parties without a warrant, as Congress seeks to do with this legislation.
That means that victims of child abuse could see a situation where their case and the evidence collected against an abuser is thrown out because the government used a shady, unconstitutional method of collecting it.
Currently, evidence collected voluntarily is admitted in courts. But by forcing online platforms to collect this kind of data, the EARN It Act could jeopardize that permissibility.
Lastly, the cherry on top of this cupcake of stupidity is that this bill also goes after encryption that protects the data of all internet users. These people won’t sleep until they can access every search in your history. The legislation treats platforms that provide end-to-end encryption as executing a “willful blindness” to bad actors that use their services and would punish services that provide it accordingly.
It’s hard to overstate the implications this bill would have.
It would likely lead to far less competition in the tech sector, as smaller companies cannot afford to manage this dysfunctional regulatory framework. And competition is the thing we need most in this sector to actually, effectively push back on bad content moderation practices.
What’s more, far from helping defeat abuse, the EARN It Act would likely lead to many cases being thrown out of courts—with victims receiving no closure and no justice as a result. And the privacy violations would almost certainly lead to more government persecution of citizens, wrongful convictions, and a further erosion of our basic liberties.
The Earn It Act should “earn” all of our scorn and disgust.
Disclosure: Hannah is a fellow with NetChoice, an advocacy organization that opposes the EARN It Act.