The Senate is advancing dangerous anti-free speech legislation that could let child predators off the hook

Here’s a riddle. What’s harder to get rid of in DC: the rats, the carjackers, or bad ideas?

While all have proven pervasive in the nation’s Capitol, I’d argue it’s the latter that seems simply impossible to be rid of. In yet another installment, Congress is again pushing something known as the EARN IT Act—a piece of legislation that essentially says business owners should have to earn their right to free speech. In fact, the bill just passed through the Senate Judiciary Committee on Thursday morning. 

Per usual, supporters warn the bill is needed to sAvE tHe ChIlDrEn—which should be as clear of a red flag that a bill is a Trojan horse as there ever was. What it really does is go after Section 230—which is increasingly the pet target of big government, anti-civil liberties types on both the Right and the Left.

(If you’re not up to speed on Section 230, which is a very good and necessary free speech protection, you can read here or watch here to learn more. Probably everything you’ve been told is wrong).

According to the Taxpayers Protection Alliance, the EARN IT Act “places severe conditions on Section 230 liability protections, requiring platforms to undergo significant operational changes to avoid being targeted with litigation. Specifically, the EARN IT Act requires platforms to institute age verification and gate content to users based on age. These mandates would give bureaucrats broad latitude to deny liability protections to digital platforms, despite the established Supreme Court precedent blocking content age verification on First Amendment grounds.”

So to summarize, the Congressional leaders behind this bill plan to keep your kid safe by making companies collect their data. What could go wrong?

And should the companies fail to invade your child’s privacy and keep records on them, the government would take away their First Amendment rights on the internet and hold business owners liable for things other people write on their platforms. Business owners of course must hire staff and pay massive amounts of money to meet this new operational hurdle too, naturally.

And what exactly constitutes content these companies must gatekeep to “keep your kids safe” and avoid having their pants sued off? Well, it’s pretty vague and mostly left up to regulators to interpret—a privilege government bureaucrats would never use merely to go after a company they didn’t like, right guys?

It’s already criminal to share CSAM (child sex abuse material) online, and it has been since 1978 when Congress passed the Protection of Children Against Sexual Abuse Act. Due to this, companies already have a duty to destroy and report such content to authorities and will risk liability should they not. So why do we even need this?

Because the legislation isn’t about what they’re saying. It’s about you. It’s about giving the government control over online businesses and a backdoor to target them and their free speech rights should they step out of line.

This bill is so bad, you actually see left-wing groups like the ACLU teaming up with the Koch-backed Americans for Prosperity to fight it. In a joint statement, the organizations wrote, “The EARN It Act would punish innocent users by changing how social media companies weigh the risk of hosting user content. In doing so, this could lead to a chilling effect on free speech and innovation on the internet, as companies may feel pressured to over-censor content or abandon encryption technology that protects user privacy.”

James Czerniawski, Senior Policy Analyst at Americans for Prosperity, wrote, “We share the goal of protecting children from online exploitation, but the EARN IT Act is not the solution. The bill would expose internet platforms to liability simply for using encryption technology that protects users’ privacy. This is a dangerous precedent that could undermine the security of the internet and threaten individual freedom.”

Jenna Leventoff, Senior Policy Counsel at the ACLU, stated, “The EARN IT Act would compromise the internet as we know it. This legislation would create an exception to the liability protections of Section 230, disincentivizing platforms from hosting user generated content. It would also jeopardize end-to-end encryption, critical security relied upon by journalists, Congress, the military, domestic violence survivors, abortion seekers, doctors and patients, union organizers, and anyone who seeks to keep their communications secure from malicious hackers and the prying eyes of law enforcement. These risks are ones we cannot allow.”

I don’t think I could state the risks this legislation poses any clearer than these folks, and it should be clear to all Americans the risk this kind of legislation poses to the internet as we know it and to free speech rights.

Furthermore, it’s likely that this legislation would actually make it harder to prosecute those who actually are sharing CSAM online. That’s because the bill forces companies to act as an arm of the state and perform searches without a warrant. That might lead to more reports, but guess what, those searches won’t hold up in court.

The only thing that should have to be earned around here is the trust of the American people in their government again. And with bogus laws like this floating around, it doesn’t look like lawmakers are putting much effort into that at all.

Hannah is a consultant for Americans for Prosperity and for Netchoice, which both work on these issues.

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Hannah Cox
Hannah Cox
Hannah Cox is a libertarian-conservative writer and co-founder of BASEDPolitics. She's also the host of the BASEDPolitics podcast and an experienced political activist.