Jul 1, 2020 - Technology

Graham to narrow tech liability bill

Illustration of a web browser under glass, a hand holding a gavel is hovering over the glass. 
Illustration: Aïda Amer/Axios

A bipartisan bill taking aim at tech's liability shield will be narrowed so that it no longer threatens online platforms with losing that shield's protections if they don't meet government-set standards.

Why it matters: The EARN IT Act represents one of the most pressing threats to websites' immunity from liability over user-posted content amid Trump administration attacks on the shield, Section 230 of the Communications Decency Act.

Details: Senate Judiciary Chair Lindsey Graham (R-S.C.) intends to offer a manager's amendment to the legislation, which he's leading alongside Sen. Richard Blumenthal (D-Conn.), at a Thursday markup session.

  • Originally, the bipartisan bill would force online platforms to comply with best practices developed and enforced by a federal commission to prevent online child sexual exploitation, or risk losing the liability protections they have under Section 230.
  • Under the amendment, the government-led commission would still be responsible for developing best practices but they would be voluntary.
  • The bill instead would remove immunity for federal civil and state criminal and civil child sexual abuse material laws from Section 230, meaning victims could sue platforms that fail to protect them from abuse.

Between the lines: The latest version softens the very premise of the bill — that platforms had to prevent child sexual exploitation in order to earn Section 230 protections. Instead, it creates a specific carve-out similar to that offered under an anti-sex-trafficking measure passed in 2018.

  • That may up the already bipartisan bill's odds of passing. The 2018 bill sailed through Congress easily.

What they're saying: Tech trade group NetChoice argued in an analysis that the narrowed EARN IT Act still threatens encryption — a major concern with the original legislation — by allowing states to pass laws that could force tech companies to open encrypted communication and devices to law enforcement in the name of thwarting online child exploitation.

  • "The bill tries to avoid the encryption issue by kicking the issue to the states so that they assume the blame for weakening encryption," NetChoice wrote in an analysis of the amendment.
  • Mike Lemon, senior director of federal government affairs and counsel at fellow tech trade group the Internet Association, similarly said in a statement that the update "replaces one set of problems with another by opening the door to an unpredictable and inconsistent set of standards under state laws that pose many of the same risks to strong encryption.”
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