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From left, Sen. John Kennedy, R-La., Chairman Lindsey Graham, R-S.C., Richard Blumenthal, D-Conn., and ranking member Sen. Dianne Feinstein, talk before the start of the Senate Judiciary Committee markup of the Eliminating Abusive and Rampant Neglect of Interactive Technologies (EARN IT) Act of 2020, and judicial nominations in Russell Building on Thursday, July 2, 2020. (Photo: Tom Williams/CQ-Roll Call, Inc via Getty Images)

Key Senators Have Voted For The Anti-Encryption EARN IT Act, But We Can Still Stop It

We can still stop this bill if there's enough public pushback. We all have a right to privacy, and to use encrypted services to protect our privacy. Don’t let Congress take that away.

Yesterday, the Senate Judiciary Committee voted to advance the dangerous EARN IT bill. We're disappointed to see the committee advance this misguided bill. If enacted, EARN IT will put massive legal pressure on internet companies both large and small to stop using encryption and instead scan all user messages, photos, and files. 

Once we allow encryption to be compromised to scan for CSAM, authoritarian regimes will demand the same capabilities to track information shared by activists and journalists.

The bill could now be voted on by the full Senate at any time, or worse, included as part of a different "must-pass" legislative package. We need you to contact your representatives in Congress today to tell them to vote against this bill. 

We have expanded our action tool to contact both Senators and members of the House of Representatives. If you have already taken our action to contact your Senators, please take it again to make sure you contact lawmakers in both houses. 

EARN IT Would Punish Companies That Use Encryption

The bill sponsors have falsely stated that the EARN IT Act is needed to protect children. But the kind of abusive images they're concerned about are already highly illegal under federal law. Any internet platforms that knows about child sexual abuse material (CSAM) being distributed or received are required to take action on it, and can be prosecuted if they do not. 

EARN IT will allow states to lower the legal standard required for prosecutions over CSAM, and it will let the use of encryption be evidence in lawsuits and criminal trials. The overt goal of EARN IT is to pressure internet companies to start doing widespread scanning of user messages and photos. This scanning is incompatible with strong encryption

The harms will fall on the most vulnerable people. Once we allow encryption to be compromised to scan for CSAM, authoritarian regimes will demand the same capabilities to track information shared by activists and journalists. People subject to domestic abuse, including children, won't have secure channels of communication to report and reach out for trusted help. 

We're glad to see that several senators echoed concerns raised by human rights groups throughout the U.S. and the world. They suggested they might not support the bill if it doesn't strike a proper balance between fighting crimes against children, and user rights to privacy and encryption. 

But the current bill does not "strike a balance" because there isn't one to strike. The sponsors of the bill have made it clear they want to surveil user messages, and have even distributed literature suggesting which software they prefer be used. 

EARN IT threatens to punish companies that don't start following a specific list of law enforcement demands. Among them: start scanning messages. End-to-end encryption is simply not compatible with the type of surveillance that states will demand, and that the bill's sponsors have explicitly suggested. Just this week, bill sponsor Sen. Richard Blumenthal told The Washington Post that he rejected the idea of creating a broad exemption in the bill for the use of encryption, because he didn't want encryption to be a "get out of jail free card." 

We can still stop this bill if there's enough public pushback. We all have a right to privacy, and to use encrypted services to protect our privacy. Don't let Congress take that away. 


Joe Mullin

Joe Mullin is a policy analyst at EFF, where he works on encryption, platform liability, patents, copyright, and free expression online. Before joining EFF, Joe worked as a reporter covering legal affairs for the technology website Ars Technica, and American Lawyer’s magazine group. Earlier in his journalism career, Joe wrote for The Associated Press and The Seattle Times. He has a bachelors degree in history and a masters in journalism, both from the University of California at Berkeley. Outside of his work at EFF, Joe enjoys trail running and cycling.

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