Yesterday a bipartisan group of U.S. Senators introduced a new bill called the EARN IT act. On its face, the bill seems like a bit of inside baseball having to do with legal liability for information service providers. In reality, it represents a sophisticated and direct governmental attack on the right of Americans to communicate privately.

I can’t stress how dangerous this bill is, though others have tried. In this post I’m going to try to do my best to explain why it scares me.

“Going Dark”, and the background behind EARN IT

Over the past few years, the U.S. Department of Justice and the FBI have been pursuing an aggressive campaign to eliminate end-to-end encryption services. This is a category that includes text messaging systems like Apple’s iMessage, WhatsApp, Telegram, and Signal. Those services protect your data by encrypting it, and ensuring that the keys are only available to you and the person you’re communicating with. That means your provider, the person who hacks your provider, and (inadvertently) the FBI, are all left in the dark.

The government’s anti-encryption campaign has not been very successful. There are basically two reasons for this. First, people like communicating privately. If there’s anything we’ve learned over the past few years, it’s that the world is not a safe place for your private information. You don’t have to be worried about the NSA spying on you to be worried that some hacker will steal your messages or email. In fact, this kind of hack occurs so routinely that there’s a popular website you can use to check if your accounts have been compromised.

The second reason that the government has failed to win hearts and minds is that providers like Facebook and Google and Microsoft also care very much about encryption. While some firms (*cough* Facebook and Google) do like to collect your data, even those companies are starting to realize that they hold way too much of it. This presents a risk for them, and increasingly it’s producing a backlash from their own customers. Companies like Facebook are realizing that if they can encrypt some of that data — such that they no longer have access to it — then they can make their customers happier and safer at the same time.

Governments have tried to navigate this impasse by asking for “exceptional access” systems. These are basically “backdoors” in cyrptographic systems that would allow providers to occasionally access user data with a warrant, but only when a specific criminal act has occurred. This is an exceptionally hard problem to get right, and many experts have written about why this is. But as hard as that problem is, it’s nothing compared to what EARN IT is asking for.

What is EARN IT, and how is it an attack on encryption?

Because the Department of Justice has largely failed in its mission to convince the public that tech firms should stop using end-to-end encryption, it’s decided to try a different tack. Instead of demanding that tech firms provide access to messages only in serious criminal circumstances and with a warrant, the DoJ and backers in Congress have decided to leverage concern around the distribution of child pornography, also known as child sexual abuse material, or CSAM.

I’m going to be a bit more blunt about this than I usually would be, but only because I think the following statement is accurate. The real goal here is to make it financially impossible for providers to deploy encryption.

Now let me be clear: the existence of CSAM is despicable, and represents a real problem for many providers. To address it, many file sharing and messaging services voluntarily perform scanning for these types of media. This involves checking images and videos against a database of known “photo hashes” and sending a report to an organization called NCMEC when one is found. NCMEC then passes these reports on to local authorities.

End-to-end encryption systems make CSAM scanning more challenging: this is because photo scanning systems are essentially a form of mass surveillance — one that’s deployed for a good cause — and end-to-end encryption is explicitly designed to prevent mass surveillance. So photo scanning while also allowing encryption is a fundamentally hard problem, one that providers don’t yet know how to solve.

All of this brings us to EARN IT. The new bill, out of Lindsey Graham’s Judiciary committee, is designed to force providers to either solve the encryption-while-scanning problem, or stop using encryption entirely. And given that we don’t yet know how to solve the problem — and the techniques to do it are basically at the research stage of R&D — it’s likely that “stop using encryption” is really the preferred goal.

EARN IT works by revoking a type of liability called Section 230 that makes it possible for providers to operate on the Internet, by preventing the provider for being held responsible for what their customers do on a platform like Facebook. The new bill would make it financially impossible for providers like WhatsApp and Apple to operate services unless they conduct “best practices” for scanning their systems for CSAM.

Since there are no “best practices” in existence, and the techniques for doing this while preserving privacy are completely unknown, the bill creates a government-appointed committee that will tell technology providers what technology they have to use. The specific nature of the committee is byzantine and described within the bill itself. Needless to say, the makeup of the committee, which can include as few as zero data security experts, ensures that end-to-end encryption will almost certainly not be considered a best practice.

So in short: this bill is a backdoor way to allow the government to ban encryption on commercial services. And even more beautifully: it doesn’t come out and actually ban the use of encryption, it just makes encryption commercially infeasible for major providers to deploy, ensuring that they’ll go bankrupt if they try to disobey this committee’s recommendations.

It’s the kind of bill you’d come up with if you knew the thing you wanted to do was unconstitutional and highly unpopular, and you basically didn’t care.

So why is EARN IT a terrible idea?

At the end of the day, we’re shockingly bad at keeping computer systems secure. This has expensive, trillion dollar costs to our economy, More than that, our failure to manage the security of data has intangible costs for our ability to function as a working society.

There are a handful of promising technologies that could solve this problem. End-to-end encryption happens to be one of those. It is, in fact, the single most promising technology that we have to prevent hacking, loss of data, and all of the harm that can befall vulnerable people because of it.

Right now the technology for securing our infrastructure isn’t mature enough that we can appoint a government-appointed committee to dictate what sorts of tech it’s “ok” for firms to provide. Maybe some day we’ll be there, but we’re years from the point where we can protect your data and also have Washington DC deciding what technology we can use to do it.

This means that yes, some technologies, like CSAM scanning, will have to be re-imagined and in some cases their effectiveness will be reduced. But tech firms have been aggressive about developing this technology on their own (see here for some of the advanced work Google has been doing using Machine Learning), and they will continue to do so. The tech industry has many problems, in many areas. But it doesn’t need Senators to tell it how to do this specific job, because people in California have kids too.

Even if you support the goals of EARN IT, remember: if the U.S. Senate does decide to tell Silicon Valley how to do their job — at the point of a liability gun — you can bet the industry will revert to doing the minimum possible. Why would the tech firms continue to invest in developing more sophisticated and expensive technology in this area, knowing that they could be mandated to deploy any new technology they invent, regardless of the cost?

And that will be the real outcome of this bill.

On cynicism

Over the past few years there has been a vigorous debate about the value of end-to-end encryption, and the demand for law enforcement to have access to more user data. I’ve participated in this debate, and while I’ve disagreed with many on the other side of it, I’ve always fundamentally respected their position.

EARN IT turns all of this on its head. It’s extremely difficult to believe that this bill stems from an honest consideration of the rights of child victims, and that this legislation is anything other than a direct attack on the use of end-to-end encryption.

My hope is that the Internet community and civil society will treat this proposal with the seriousness it deserves, and that we’ll see Senators rally behind a bill that actually protects children from abuse, rather than using those issues as a cynical attempt to bring about a “backdoor ban” on encryption.