ACLU Strongly Opposes Cascade of Dangerous Legislation Threatening to Destroy Digital Privacy

The American Civil Liberties Union is speaking out against three bills currently making their way through Congress. On Thursday, the Senate Judiciary Committee is scheduled to mark up the EARN IT Act, the STOP CSAM Act, and the Cooper Davis Act, legislation that would invite constant government surveillance and significantly jeopardize Americans’ rights to free speech and digital privacy.

In a letter sent to Congress today, the ACLU lays out the unacceptable consequences for free speech, privacy, and security this package of legislation would wreak on the ways we connect, communicate, and organize. These bills would push tech companies to over-censor their users and to jettison their own security tools in order to reduce their exposure to any legal liability. The bills could also result in the over-targeting of marginalized communities online.

“These bills purport to hold powerful companies accountable for their failure to protect children and other vulnerable communities from dangers on their services when, in reality, increasing censorship and weakening encryption would not only be ineffective at solving these concerns, it would in fact exacerbate them,” said Cody Venzke, senior policy counsel at ACLU.

The ACLU warns that these bills will essentially force platforms to stop offering private, secure communications tools, like end-to-end encryption. End-to-end encryption is critical for journalists speaking to their sources, doctors talking to their patients, and anyone else who seeks to keep their communications secure from commercial surveillance, hackers, and, in some cases, law enforcement investigating reproductive or gender-affirming health care. However, if these bills are passed, platforms could be liable for user content they are unaware of, meaning they will increase efforts to monitor and surveil even legal speech. Platforms offering end-to-end encryption could reasonably fear that courts will find merely offering these services is negligent, since their users’ encrypted communications are private by design.

These bills would also weaken the protections afforded by Section 230, which prevents online platforms from being held legally liable for content posted by third parties. While platforms are liable under Section 230 for the knowing distribution of child sex abuse material (CSAM), these bills would broaden that liability to include passive activity like merely providing internet connectivity. By dismantling Section 230’s protections, these bills would incentivize platforms to over-censor user-generated content. For instance, an array of lawful content, including healthy communication between a teacher and their students or an aunt or uncle with their nieces and nephews, could be suppressed or removed by overzealous content moderation practices.

Unable to sufficiently police content, and fearful of legal liability, these platforms may be forced to stop allowing user-generated content entirely. These effects would significantly impact the public’s ability to speak, learn, and engage with others online, and compromise the internet as we know it.