The EARN IT Act could give law enforcement officials the backdoor they have long wanted — unless tech companies come together to stop it

A thing about writing a newsletter about technology and democracy during a global pandemic is that technology and democracy are no longer really at the forefront of everyone’s attention. The relationship between big platforms and the nations they operate in remains vitally important for all sorts of reasons, and I’ve argued that the platforms have been unusually proactive in their efforts to promote high-quality information sources. Still, these moves are a sideshow compared to the questions we’re all now asking. How many people will get COVID-19? How many people will die? Will our healthcare system be overwhelmed? How long will it take our economy to recover?

We won’t know the answers for weeks, but I’m starting to fear the worst. On Wednesday the World Health Organization declared that COVID-19 had officially become a pandemic. A former director for the Centers for Disease Control now says that in the worst case scenario, more than 1 million Americans could die.

This piece by Tomas Pueyo argues persuasively that the United States is currently seeing exponential growth in the number of people contracting the disease, and that hospitals are likely to be overwhelmed. Pueyo’s back ground is in growth marketing, not in epidemiology. But by now we have seen enough outbreaks in enough countries to have a rough idea of how the disease spreads, and to understand the value of “social distancing” — that is, staying behind closed doors. So I want to recommend that everyone here reads that piece, and consider modifying your behavior if you’re still planning events or spending a lot of time in public.

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One risk of having the world pay attention to a single, all-consuming story is that less important but still urgent stories are missed along the way. One such unfolding story in our domain is the (deep breath) Eliminating Abusive and Rampant Neglect of Interactive Technologies (“EARN IT”) Act, which was the subject of a Senate hearing on Wednesday. Here’s Alfred Ng with an explainer in CNET:

The EARN IT Act was introduced by Sen. Lindsey Graham (Republican of South Carolina) and Sen. Richard Blumenthal (Democrat of Connecticut), along with Sen. Josh Hawley (Republican of Missouri) and Sen. Dianne Feinstein (Democrat of California) on March 5. The premise of the bill is that technology companies have to earn Section 230 protections rather than being granted immunity by default, as the Communications Decency Act has provided for over two decades.

For starters, it’s not clear that companies have to “earn” what are already protections provided under the First Amendment: to publish, and to allow their users to publish, with very few legal restrictions. But if the EARN IT Act were passed, tech companies could be held liable if their users posted illegal content. This would represent a significant and potentially devastating amendment to Section 230, a much-misunderstood law that many consider a pillar of the internet and the businesses that operate on top of it.

When internet companies become liable for what their users post, those companies aggressively moderate speech. This was the chief outcome of FOSTA-SESTA, the last bill Congress passed to amend Section 230. It was putatively written to eliminate sex trafficking, and was passed into law after Facebook endorsed it. I wrote about the aftermath in October:

[The law] threatens any website owner with up to 10 years in prison for hosting even one instance of prostitution-related content. As a result, sites like Craigslist removed their entire online personals sections. Sex workers who had previously been working as their own bosses were driven back onto the streets, often forced to work for pimps. Prostitution-related crime in San Francisco alone — including violence against workers — more than tripled.

Meanwhile, evidence that the law reduced sex trafficking is suspiciously hard to come by. And there is little reason to believe that the EARN IT Act will be a greater boon to public life.

Yet, for the reasons Issie Lapowsky lays out today in a good piece in Protocol, it may pass anyway. Once again Congress has lined up some sympathetic witnesses who paint a picture that, because of their misfortune, whole swathes of the internet should be eliminated. It would do that by setting up a byzantine checklist structure that would handcuff companies to a difficult-to-modify set of procedures. One item on that checklist could be eliminating end-to-end encryption in messaging apps, depriving the world of a secure communications tool at a time when authoritarian governments are surging around the world. Here’s Lapowsky:

The EARN IT Act would establish the National Commission on Online Child Sexual Exploitation Prevention, a 19-member commission, tasked with creating a set of best practices for online companies to abide by with regard to stopping child sexual abuse material. Those best practices would have to be approved by 14 members of the committee and submitted to the attorney general, the secretary of homeland security, and the chairman of the Federal Trade Commission for final approval. That list would then need to be enacted by Congress. Companies would have to certify that they’re following those best practices in order to retain their Section 230 immunity. Like FOSTA/SESTA before it, losing that immunity would be a significant blow to companies with millions, or billions, of users posting content every day. The question now is whether the industry can convince lawmakers that the costs of the law outweigh the benefits. It’s a debate that will test what tech companies have learned from the FOSTA/SESTA battle — and how much clout they even have left on Capitol Hill.

The bill’s backers have not said definitively that they will demand a backdoor for law enforcement (and whoever else can find it) as part of the EARN IT Act. (In fact, Blumenthal denies it.) But nor have they written the bill to say they won’t. And Graham, one of the bill’s cosponsors, left little doubt on where he stands:

“Facebook is talking about end-to-end encryption which means they go blind,” Sen Graham said, later adding, “We’re not going to go blind and let this abuse go forward in the name of any other freedom.”

Notably, Match Group — the company behind Tinder, OKCupid, and many of the most popular dating apps in the United States — has come out in support of the bill. (That’s easy for Match: none of the apps it makes offer encrypted communications.) The platforms are starting to speak up against it, though — see this thread from WhatsApp chief Will Cathcart.

In the meantime, Graham raises the prospect that the federal government will get what it has long wanted — greatly expanded power to surveil our communications — by burying it in a complex piece of legislation that is nominally about reducing the spread of child abuse imagery. It’s a cynical move, and if the similar tactics employed in the FOSTA-SESTA debate were any indication, it might well be an effective one.

The Ratio

Trending up: Amazon and the Gates Foundation might team up to deliver coronavirus test kits to Seattle homes. The test kits include nose swabs that can be mailed to the University of Washington for analysis.

Trending up: Amazon will give all employees diagnosed with coronavirus or put into quarantine up to two weeks of paid sick leave. The policy includes part-time warehouse workers. COVID-19 has really been a watershed for tech giants treating their contract workers like the human beings they are.

Outbreak

On the policy front:

The White House met with Facebook, Google, Amazon, Twitter, Apple, and Microsoft to coordinate efforts over the coronavirus outbreak. (Reuters)

YouTube will begin letting creators make money from their videos about the coronavirus. It’s a reversal of an earlier decision the company made to automatically demonetize videos that talked about the outbreak. That decision angered creators, and now the company has walked it back. (Julia Alexander / The Verge)

On the economy:

Apple is closing all 17 of its retail stores in Italy “until further notice” as the coronavirus pandemic sweeps the country. (Mark Gurman / Bloomberg)

The coronavirus outbreak is hurting Airbnb hosts as travel screeches to a halt. The economic downturn is also impacting airlines and hotels, but hosts have fewer resources to cope. (Erin Griffith / The New York Times)

Travel influencers also say the spread of COVID-19 has impacted their lives and bottom lines. (Tanya Chen / BuzzFeed)

On the office front:

Google is asking all employees in Europe, the Middle East, and Africa to work from home due to coronavirus concerns. Employees in North American have already been given the same advice. (Isobel Asher Hamilton and Rob Price / Business Insider)

On the conference front:

The Council on Foreign Relations had to cancel a roundtable discussion about doing business under coronavirus due to, well, the coronavirus. It’s one of many events that have been canceled or rescheduled in recent weeks to do the virus’s spread. (David Welch / Bloomberg)

The biggest trade show in video games, E3 2020, was canceled due to coronavirus concerns. The event was supposed to take place at the Los Angeles Convention Center this June. (Jason Schreier / Kotaku)

On the misinformation front:

A Facebook group called “U.K. Preppers & Survivalists” is trying to stop misinformation about the coronavirus pandemic from spreading. One of the moderators said that while people should question news and politicians, questioning doctors isn’t helpful. (Hussein Kesvani / Mel)

Hackers are sending emails with fake HIV results and coronavirus information that infect computers with malware, according to cybersecurity researchers at Proofpoint. The fake HIV emails are designed to look like they come from Vanderbilt University. (Jane Lytvynenko / BuzzFeed)

WeChat users in China are evading censors by translating a viral interview from a coronavirus whistleblower in Wuhan, China. They’re rewriting it backward, filling it with typos and emojis, sharing it as a PDF, and even translating it into fictional languages like Klingon. (Ryan Broderick / BuzzFeed)

We need to combat misinformation about coronavirus the same way we’re combating the virus itself: with a communitarian focus. This strategy emphasizes the needs of the community rather than just focusing on the individual, this piece argues. (Whitney Phillips / Wired)

Elsewhere:

Microsoft, Google, and Zoom are trying to keep up with demand for their software, which allows people to work remotely. The companies have also started giving it away to companies and schools for free, as the coronavirus pandemic intensifies. (Rani Molla / Recode)

Here’s the case for why coronavirus quarantines could be good for memes. Finally, some good news! (Brian Feldman / Intelligencer)

Governing

⭐Maryland, Nebraska, and New York have all proposed taxes that would force tech companies to hand over a portion of the revenue generated from digital advertising. The proposals mirror taxes countries like France have also considered. Ashley Gold at The Information has the story:

The proposals vary in approach and scope, but they all center around the idea that big internet companies, having built their fortunes in part through the use of consumers’ personal information, should be contributing more to government coffers. The bills, which face mixed prospects for adoption, have drawn the ire of tech companies and other business groups, who say it could be challenging to determine precisely how much of their ad revenue comes from each state. In addition, tax experts said, the proposals could run afoul of federal law. But lawmakers and other advocates believe the proposals might find favor with voters concerned about the power wielded by Silicon Valley and large corporations in general.

Also: The UK government confirmed that it will levy a 2 percent tax on “the revenues of search engines, social media services and online marketplaces which derive value from U.K. users” starting on April 1st. The United States government has been strongly opposed to the plan. (Shakeel Hashim / Protocol)

After 2016, Americans are alert to Russian election interference and outside attempts to spread discord. But conspiracy theories and vitriol are now coming from influencers in the United States — verified users, many from within the media, and passionate hyper-partisan fan groups that band together to drive the conversation. (Renée DiResta / The Atlantic)

Joe Biden has more than tripled the amount of money his campaign is spending on Facebook ads following a strong showing on Super Tuesday. His spend on Facebook ads in March has exceeded that of Bernie Sanders and President Trump. (Salvador Rodriguez / CNBC)

As big tech companies struggle to moderate content with a mix of algorithms, fact-checkers, and policies, Wikipedia is quietly managing to stave off misinformation with an army of anonymous volunteers. (Alex Pasternack / Fast Company)

Clearview AI let multiple people associated with the Trump campaign use its facial recognition app. Venture capital firms including SoftBank, Sequoia Capital, Kleiner Perkins, and Founders Fund also ran searches. Clearview previously tried to claim that the app was only for law enforcement. (Ryan Mac, Caroline Haskins and Logan McDonald / BuzzFeed)

Microsoft organized 35 nations to take down one of the world’s largest botnets — malware that secretly seizes control of millions of computers around the globe. The move was unusual because it was carried out by a company, not a government. (David E. Sanger / The New York Times)

Content related to far-right candidates in Poland makes up a greater percentage of general Facebook content than of content on mainstream outlets’ Facebook pages, according to researchers at Stanford. Evidence suggests this might be because far-right pages are especially good at boosting engagement on Facebook by posting content simultaneously across their networks. (Daniel Bush, Anna Gielewska, Maciej Kurzynski / Cyber Policy Center)

Industry

⭐TikTok is launching a “Transparency Center” in Los Angeles to give outside experts more insight into how the company makes content moderation decisions. It’s one of many moves the company has made in recent months to quell the concerns of US regulators and lawmakers. This one’s interesting. Reuters explains:

The center would later provide insights into the app’s source code, the closely guarded internal instructions of the software, and offer more details on privacy and security. Several U.S. agencies that deal with national security and intelligence issues have banned employees from using the app, whose popularity among teenagers has been growing rapidly. According to a 2017 Chinese law, companies operating in the country are required to cooperate with the government on national intelligence.

Egon Durban of Silver Lake is the latest Twitter board member to have never tweeted before joining the board.

Rihanna just announced she’s opening a Fenty Beauty House for TikTok creators as part of a promotion for her makeup line. Creators will be able to “raid the fully stocked ‘Make-up Pantry’” to create their own beauty-focused content. What a fun time to be trapped together in a house with a bunch of people you barely know! Don’t share make-up brushes y’all! (Bianca Betancourt / Harper’s Bazaar)

Alphabet was supposed to help Google invent its next blockbuster technologies. But nearly a half-decade has passed since it launched, and the breakthrough new businesses haven’t materialized. (Nick Bastone and Jessica E. Lessin / The Information)

Google has pressured TV manufacturers not to use Amazon’s Fire TV system. The strategy has slowed Amazon’s efforts to expand its Fire TV platform. (Janko Roettgers / Protocol)

Google’s sibling company Sidewalk Labs is walking back plans to create a futuristic city in Toronto. The plans, which combined environmentally advanced construction with sensors to track residents’ movements, raised privacy concerns. In May, the government will announce if the project will proceed. (Ian Austen / The New York Times)

And finally...

Talk to us

Send us tips, comments, questions, and EARN IT Act worse-case scenarios: casey@theverge.com and zoe@theverge.com.