ELI Joins Letter to Senate Judiciary Opposing EARN IT Act 2023
The EveryLibrary Institute joined over 120 of civil society, privacy, LGBTQ+, and civil rights organizations in a letter organized by Center for Democracy & Technology to express our opposition to the EARN IT Act, S.1207. We believe that this bill will make it harder for law enforcement to protect children online and will jeopardize access to encrypted services.
Section 230 of the Communications Act of 1934 shields online intermediaries like social media, search engines, and even libraries from liability for the content users access or share on their services. This includes both consumer-facing intermediaries like social media companies and infrastructure intermediaries. Courts have broadly interpreted the term “interactive computer service” in Section 230. An interactive computer service can be either a private or public entity. Courts have reaffirmed that brick-and-mortar libraries which offer internet access through their public computers are interactive computer services for the sake of Section 230.
Section 230 helps promote free expression online and imposes criminal liability on intermediaries who have knowledge that they are distributing child sexual abuse material. Section 230 likely includes libraries because they act as interactive computer services and because they host third-party content created both by authors and the e-book services. E-book services are also interactive computer services that host content of third-party authors. The bill would make it far riskier for platforms to host user-generated content by opening providers up to significantly expanded liability. This would threaten free expression for online services that host user-generated content directly.
Patron privacy has always been a central focus for libraries. Encrypted browsing and digital interactions have become even more important as we consider the impact of book bans, censorship - and access to ebooks, audiobooks, and databases - in states and localities with anti-access legislation. EARN IT would permit states to seek to impose criminal or civil liability on intermediaries who offer strong encryption. This could lead many interactive computer services to decide not to offer encrypted services.
Fundamentally, the EARN IT Act sets up a law enforcement-heavy and Attorney General-led Commission charged with producing a list of voluntary "best practices" that providers should adopt to address CSAM on their networks. This approach would have troubling consequences for everyone's ability to share and access information online. Instead, Congress should consider more tailored approaches to deal with the real harms to children online.