In Congress, Democrats and Republicans are banding together to introduce legislation that essentially offers the industry an ultimatum: Take aggressive, potentially controversial steps to thwart child sexual exploitation on the web, or risk losing some of the long-standing legal protections, known as Section 230.
The so-called Earn It Act bill from GOP Sen. Lindsey Graham (S.C.) and Democratic Sen. Richard Blumenthal (Conn.) is expected as soon as Wednesday with bipartisan support, according to three people familiar with the measure who requested anonymity since it has not been formally introduced. Spokespeople for the lawmakers declined to comment for this story.
At the Justice Department, meanwhile, U.S. officials are set to unveil on Thursday a set of 11 “voluntary principles” that target child sexual exploitation, according to two additional sources and a copy of the invite. The proposal — crafted with the industry’s aid, and backed by leaders of five countries — calls on tech companies to ensure search, social-networking, video streaming and chat tools aren’t havens for child predators, according to a copy obtained by The Post. The DOJ did not immediately respond to a request for comment.
Silicon Valley companies including Facebook and Google share the U.S. government’s goal of battling child pornography, human trafficking and a wide array of other harmful content targeting minors. But they fear efforts to erode Section 230, which they view as fundamental to the web’s growth, critical for free expression and essential for web sites that need legal cover to police their own platforms in the first place.
The industry has grown especially apprehensive about lawmakers’ latest political salvo, fearing it is unworkable and could pave the way for the Justice Department and other law enforcement agents to burrow into their networks, devices and services to aid their investigations. Doing so could undermine end-to-end encryption, security technology that makes it so that only the sender and recipient of a message can see its contents.
On Tuesday, Facebook aired early doubts about the bill before it had even been released. The fate of encryption is critical for the company, given that its messaging service, WhatsApp, is secured this way, and Facebook aims to deploy encryption further across its chat tools.
“We share the EARN IT Act sponsors’ commitment to child safety and have made keeping children safe online a top priority by developing and deploying technology to thwart the sharing of child abuse material,” Facebook spokesman Thomas Richards said in a statement. “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.”
Google did not immediately respond to request for comment.
The twin efforts — combined with growing apprehension among regulators about the unchecked power of many top tech companies — could set the stage for a major clash between Washington and Silicon Valley over the coming year.
Regulators in the United Kingdom, Australia and a host of other countries recently have sought to require Facebook, Google and other online services to spot, disable or demote abusive content quickly or face tough punishments. In the United States, however, Section 230 often prevents the government from holding tech giants accountable for problematic speech — and stymies web users from taking action justice on their own in the courts.
But Democrats and Republicans in recent years have expressed greater willingness to rethink and revise the immunity the law affords. So has the Justice Department, where Attorney General William P. Barr has begun a broad review of big tech that includes possible changes to Section 230. The agency privately informed tech companies, consumer watchdogs and digital experts last month it is mulling whether to endorse sweeping changes to the rules, The Post previously reported.
Publicly, Barr also has chided the industry for failing to clamp down on child sexual exploitation online. And he’s specifically pointed to encryption as an impediment to efforts by DOJ and officials around the world to investigate potentially harmful messages, photos and other content in real time.
“I’ve never seen the atmosphere here in D.C. to be so conducive to passing some kind of encryption legislation or lawful access legislation as it is today,” Assistant Attorney General John Demers said at a conference earlier this year.
On Capitol Hill, Graham’s and Blumenthal’s legislation specifically seeks to protect kids and clamp down on abusive imagery, threats to child safety and the potential for human trafficking. If passed, the bill would set up a commission at the Justice Department to craft a set of voluntary guidelines for tech companies to follow to combat child sexual exploitation, according to a copy of the measure obtained by The Post.
But the guidelines in many ways are optional in name only — without adopting them, companies would lose legal protections, opening the door for the government to hold Silicon Valley directly accountable for facilitating child sexual exploitation, experts said.
“The structure proposed in the Earn It Act is essentially coercive of companies,” said Emma Llanso, director of the Free Expression Project at the Center for Democracy and Technology.
In the process of crafting those standards, tech companies and digital-rights groups also fear an encryption-wary Justice Department might require them to implement so-called “backdoors” into their services or risk losing some of their immunity under Section 230.
Encryption long has sparked tension between the Justice Department and Apple, as federal investigators seek to force the iPhone giant to allow them easier access to password-protected devices. More recently, the Justice Department has taken aim at Facebook over its plan to deploy end-to-end encryption across all of its messaging apps. Doing so “puts our citizens and societies at risk by severely eroding a company’s ability to detect and respond to illegal content and activity,” Barr and his foreign counterparts wrote in a letter to Facebook in October, calling on the company to halt its plans.
In the meantime, the Justice Department plans to convene its own campaign on child sexual exploitation on Thursday, said two people familiar with the matter who were not authorized to speak about the still-unannounced event. A spokesman for the department did not immediately respond to a request for comment.
The DOJ effort appears to have the backing of law-enforcement officials in at least other countries — Australia, Canada, New Zealand, and the United Kingdom — as well as an unspecified number of tech companies. Participants commit to combatting abusive child imagery, finding and reporting predators who seek to lure children and sharing more with users and governments about their efforts, according to a copy obtained by the Post.
“Online child sexual exploitation and abuse is a global crime that demands a global response,” the document begins. “In an increasingly digital and borderless world, this crime is becoming easier to commit, more extreme in nature and growing in scale.”
The flurry of activity this week left many tech companies and their top Washington advocates uneasy.
The DOJ-led event “demonstrates that everyone has a role in fighting Internet misconduct,” said Matthew Schruers, the president of the Computer & Communications Industry Association, which represents companies including Facebook and Google.
He added of lawmakers’ forthcoming bill: “A new federal bureaucracy regulating private Internet companies’ content management and technology choices, however, is not the way to fight crime online.”
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