No, We Don’t Need Weaker Encryption
During the worst economic downturn in over a century, you might expect that Congress’s top priority would be enacting legislation that helps put more than 32 million unemployed Americans back to work.
Then there’s the COVID-19 pandemic, now sweeping through America with nearly 3.5 million cases and 137,000 deaths reported – and no sign of letting up. Or the fact that Social Security, on which more than 60 million Americans depend for financial support, is running out of money.
But Congress can’t be bothered with these trifles. Instead, one of their top priorities appears to be destroying America’s tech industry, weakening our country’s competitiveness, and ending its citizens’ privacy rights. But in this era of unprecedented political division, at least it’s a bipartisan effort.
I’m speaking of a little-known proposal called the Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2020 (EARN IT Act), which proponents claim will protect children from online sexual abuse. Last Thursday, the Senate Judiciary Committee voted unanimously to send the legislation to the full Senate for a vote.
The bill would establish a National Commission on Online Child Sexual Exploitation Prevention (NCOCSEP) to devise “best practices” for tech companies to follow regarding online “child sexual abuse material” (what was once called “child porn”). An earlier version of the bill required tech companies to follow these best practices in order to “earn” the protections of Section 230 of the Communications Decency Act.
(As I discussed in this article, the intent of Section 230 is to encourage internet companies to regulate themselves without fear of being sued. The law, which provides that an internet company can‘t be held liable for the content of its users’ postings, has helped America dominate the global online economy. Most other countries don’t give blanket protection for free speech. That gives American internet companies an inherent advantage to their overseas competitors.)
In the version of the EARN IT Act voted out of the Senate committee last week, the best practices would be voluntary. However, individual states could sue or even bring criminal charges against companies violating them.
At first glance, that might sound like a good idea. After all, who among us would admit to being in favor of child sexual exploitation? And what monster would oppose “doing something” to fight it?
The real question, though, is what “best practices” the NCOCSEP will recommend. Many tech companies fear the commission will target encryption – a foundational technology for internet security – as violating best practices to prevent child sexual exploitation.
With encryption software, no one but you and your intended recipient can read your email messages, text messages, instant messages, etc. You can even encrypt your entire hard disk to protect everything on your PC from prying eyes. If hackers manage to penetrate your network, all they’d see is unintelligible gibberish.
Here’s a link to a message I just wrote to myself in an encrypted format. Can you tell what it says?
Give up? The message is simply, “Encryption works.”
However, encryption doesn’t just help protect the communications of good people. It also guards the communications of criminals, terrorists, and yes, people who sexually exploit children. For that reason, some do-gooders think that the government should always have a convenient way to unlock encryption to read, listen, or view messages. A “back door,” if you will.
When encryption first came into the forefront in the 1990s, police and intelligence agencies worried about “going dark” – not being able to monitor the encrypted communications of criminals and terrorists.
That concern hasn’t gone away. Last summer, Attorney General William Barr gave a speech at a cyber-security conference in which he claimed encryption allows wrongdoers to make their information and communications "warrant proof... extinguishing the ability of law enforcement to obtain evidence essential to detecting and investigating crimes." If that’s not enough to make you want to abolish encryption, Barr claimed the technology also lets "criminals to operate with impunity, hiding their activities under an impenetrable cloak of secrecy."
Supporters of the EARN IT Act say that the bill actually encourages encryption by prohibiting tech companies from being held liable because they facilitate end-to-end encryption (which ensures only the sender and recipient of a message can view its contents) or other encryption technologies. But encryption remains under threat because state lawmakers could still look for ways to weaken it. For instance, a state could enact legislation that would require companies to review all customer data and communications to ensure that it doesn’t contain evidence of child sexual exploitation. And since tech companies have customers in all 50 states, they would likely set policies to comply with the strictest state laws.
Senator Ron Wyden (D-Oregon), one of the few in Congress courageous enough to oppose this bill, says that “by allowing any individual state to set laws for internet content, this bill will create massive uncertainty, both for strong encryption and free speech online.”
The EARN IT Act is also unnecessary because creating child porn is already a federal crime. If you’re a tech company and you “advertise, promote, present, distribute, or solicit” child porn, your firm can be shut down and you’ll face a long prison sentence. Nor is there even a single example of a case where Section 230 has prevented a tech company from being held accountable for dealing with child porn. Thus, the EARN IT Act is a solution in search of a problem.
If Congress isn’t willing to tackle the real problems I mentioned at the beginning of this article, perhaps it can at least focus on proposals that aren’t likely to destroy tech companies – currently the single most productive and profitable segment of the American economy.
One idea would be for Congress to pass legislation renaming a highway, bridge, or geographical feature after a famous person. A 2019 law, for instance, renamed a Missouri bridge after baseball star Stan Musial. Congress could also ban baby switching, an idea it took up in 2013. Then there was House Resolution 298 of 2009, which congratulated the “on-premise sign industry for its contributions to the success of small businesses.”
For instance, rock and roll icon Little Richard recently died, so Congress could rename the city of his birth, Macon Georgia, “Little Richardville.” I really enjoy eating BoSa doughnuts, so perhaps Congress could pass a proclamation renaming the Grand Canyon “BoSa Canyon.” And finally, if there’s nothing else to debate, Congress could always take up baby-switching.
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