Lindsey Graham to Big Tech: Police Content or Lose Immunity
Lindsey Graham to Big Tech: Police Content or Lose Immunity
(Bloomberg) -- Lindsey Graham wants Big Tech to choose between its cherished legal protection for online content and its ability to offer encryption services.
Graham, the Republican senator from South Carolina and President Donald Trump’s close ally, is aiming legislation he offered Thursday squarely at companies such as Apple Inc. and Facebook Inc. in a bid to combat online exploitation of children.
The measure would allow the tech companies to use the liability protections of Section 230 of the Communications Decency Act as a defense against victims’ lawsuits only if the platforms adhere to a list of best practices for combating online child abuse.
Best practices could include identifying, reporting and removing child exploitation materials, according to a draft of the measure obtained by Bloomberg. The tech companies would have to retain evidence of illegal content, train content reviewers and assist parents in limiting minors’ online activity. The platforms would have to ensure that any contractors comply as well.
The legislation, which won support from a bipartisan group of senators, is in line with the Trump administration’s stepped-up efforts to pressure the internet giants on multiple fronts, including over the legal shield that protects them from lawsuits for content posted by users.
Immunity from lawsuits over third-party content is crucial to the business model of companies such as Facebook and Google, which would otherwise need to hire armies of content checkers and could face burdensome legal challenges.
Graham and Attorney General William Barr have been working in concert on the issue, a person familiar with the matter said, with the Justice Department lending technical support to Graham and his staff.
Barr on Thursday announced a series of voluntary principles that platforms could follow to protect children online. Facebook, Alphabet Inc.’s Google, Microsoft Corp., Snap Inc. and Twitter Inc. signed on, Barr said at a press briefing, where he expressed concern that encryption is protecting bad actors.
The attorney general has held up the liability exemption as an outdated and sweeping shield that hinders efforts to protect children, suppresses conservative opinions, and clears the way for illicit and immoral conduct.
Called the EARN IT Act, the Graham bill focuses on the long-prized protection from civil liability, which has become a target for many lawmakers increasingly fed up with online hate, abuse and misinformation.
“This bill is a major first step,” Graham said in a statement. “For the first time, you will have to earn blanket liability protection when it comes to protecting minors.”
Graham, who chairs the Senate Judiciary Committee, has scheduled a March 11 hearing on the legislation.
While the bill doesn’t call out encryption explicitly, it would require internet platforms to identify, report and remove child-exploitation materials -- something that would be impossible to do for services that use end-to-end encryption. Such encoding prevents the platforms from seeing users’ content.
Democratic Senator Richard Blumenthal of Connecticut, a longtime tech critic who helped write the bill, joined Graham in introducing it. “It’s not an encryption bill,” he said. “The industry says that stopping child exploitation can be done consistent with encryption.”
Nonetheless, companies and groups, including the American Civil Liberties Union, Americans for Prosperity, International Business Machines Corp., NetChoice and the Internet Association either raised concerns about the bill or opposed it outright.
In a statement, Facebook said: “We’re concerned the EARN IT Act may be used to roll back encryption, which protects everyone’s safety from hackers and criminals, and may limit the ability of American companies to provide the private and secure services that people expect.” The social-media giant added that it uses technology “to thwart the sharing of child abuse material.”
Facebook now encrypts WhatsApp, the chat service, and has plans to encrypt all other messaging apps, including Messenger and Instagram.
Democratic Senator Ron Wyden of Oregon, who co-authored Section 230, slammed the proposal. “This terrible legislation is a Trojan horse to give Attorney General Barr and Donald Trump the power to control online speech and require government access to every aspect of Americans’ lives.”
Anti-sex trafficking and children’s groups, such as the National Center for Missing & Exploited Children, the National Center on Sexual Exploitation and Common Sense Media, celebrated the measure.
“The tech companies have had their way for quite some time,” said Patrick Trueman, president of NCOSE. “The public understands that the children are vulnerable online and on devices and something has to change.”
The tech platforms’ opponents say the legal shield makes it easy for them to turn a blind eye to online harm and digital crimes. Tech companies reject that argument, saying that the law actually allows them to remove vast quantities of content. Section 230 allows the platforms to take down objectionable material without incurring any legal liability.
The bill echoes an anti-sex trafficking law passed in 2018, which limits the immunity shield if a platform knowingly facilitates sex trafficking. The passage of that law was a high-profile defeat for the technology companies. It also marked the beginning of a backlash that has spread to include ramped-up antitrust scrutiny and efforts to pass privacy legislation to rein in the sector.
Section 230 doesn’t protect companies from federal criminal prosecution. U.S. law already contains reporting requirements for platforms that discover child abuse material, and millions of reports and removals result at companies such as Facebook each year.
While the firms say they are making strides in containing abusive material, child-safety advocates say the harm could skyrocket as Facebook adopts end-to-end encryption for all of its messaging services. Child advocates say that could push ever more child endangerment into the dark.
Other senators who signed on as cosponsors include Republicans Josh Hawley, Kevin Cramer and Joni Ernst, as well as Democrats Dianne Feinstein, Doug Jones, Bob Casey, Sheldon Whitehouse and Dick Durbin. Previous Senate efforts to limit Section 230 haven’t received as much bipartisan support.
--With assistance from Chris Strohm and Rebecca Kern.
To contact the reporter on this story: Ben Brody in Washington, D.C. at btenerellabr@bloomberg.net
To contact the editors responsible for this story: Sara Forden at sforden@bloomberg.net, Paula Dwyer
©2020 Bloomberg L.P.