An Invasion of Privacy
May 28, 2020
On March 5th, a date that feels like it was years ago, Senator Lindsey Graham (R) introduced a bill that he cosponsored with nine other senators (a mix of Republicans and Democrats) called the Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2020 (the EARN IT Act of 2020). This act calls for the establishment of a national commission, made up of nineteen members, that will assess and recommend “best practices” to the office of the Attorney General that should be put in place for companies to follow. If the AG approves, this list of recommendations will be put on the Department of Justice’s website and they will be sent to Congress to be made into a bill. Due to the obvious urgency of preventing child exploitation on the Internet (which is explicitly this bill’s purpose), it will be fast-tracked through the Senate and the House so it can be approved by President Trump. If this bill is made into law, companies must follow the recommendations on the bill to prevent child exploitation or face a whole host of liability lawsuits from consumers.
Currently, in the USA, you cannot hold a company liable because of something another user did, said, or posted on their website. To put in simpler terms, you can’t sue a company because someone posted something false, racist, or downright gruesome on their website since companies have difficulty controlling that. However, this new bill of recommendations would force companies to crack down on their censoring measures on posts relating to child exploitation by giving them a list of guidelines to follow. On the surface, that sounds great. It makes sure the Internet is a safer place for children to run around in, which is always good. Unfortunately, the potential that the EARN IT Act and its subsequent bill have make them dangerous to the rights of the American people.
The commission that the EARN IT Act appoints is made up of the Attorney General, the Secretary of the DHS, the Chairman of the FTC, and sixteen other members, usually experts in various fields of consumer protection, such as child exploitation, cybercrime, and data security. There will also be victims of child exploitation on the panel, lending a more humane perspective to the legal proceedings and debates. Once again, it all sounds great. However, the real problem lies in the possible list of recommendations that this commission will give to the Attorney General. It is a well-known fact that law enforcement officials are often stopped in their tracks by a thing called “end- to-end encryption.” This is the strong encryption that makes sure your texts and messages cannot be read by any random hacker. There are multiple incidents of law enforcement being unable to open phones with this encryption on them, thereby forcing private companies to help them through legal means (notably, the Apple-FBI standoff after the San Bernardino shooting). Given the known animosity towards this kinds of encryption, the probability that this commission recommends a backdoor for law enforcement officials around end-to-end encryption is highly likely. The commission needs fourteen out of nineteen officials to vote in favor of that kind of measure for it to pass. This means that the four experts on the commission with actual cryptography, privacy, and constitutional experience can be easily outvoted on that kind of matter. If the end of end-to-end encryption becomes a reality, companies will be forced to give up their consumers’ privacy or face massive lawsuits from anyone that has been victimized on their platform.
An attempt to prevent the spread of child exploitation has turned into a bill with the potential to rob Americans of their 4th Amendment rights. Technically, law enforcement officials would need still a warrant to access your messages if this becomes the new reality. However, as we all know, man is not perfect and if you’re an advocate against something that those in the federal (or even state) government don’t like, the likelihood that your private messages are illegally seen goes up significantly. We all know of the famous letter sent to MLK by the FBI telling him to kill himself. Now imagine if the FBI had the power to somehow see almost everything MLK said in private. It shouldn’t matter whether you’re a proponent of limited government or of expanded government, we all know the disastrous power that this could give to the people in charge. It should be extremely easy to imagine a scenario where someone’s words are taken out of context, leading to their unlawful arrest, or where someone’s private messages are leaked, destroying the cause they were fighting for. Even if your messages aren’t seen by the government, the likelihood that your messages are hacked by some criminal skyrockets as well. Suddenly, the American people are much more easily victims of cybercrimes, unable to find a secure place to store their data and messages. Companies would have to find a stronger encryption to code everyone’s messages with and even then, this committee meets at least once every 5 years to update these guidelines. Companies would have to change their encryptions at unsustainable rates.
Powers that could be abused this blatantly wouldn’t really be a problem, except that ten different Senators from both sides of the aisle are sponsoring this bill. The second-highest ranking Democrat in the Senate helped introduce the bill, and Lindsey Graham is easily one of the most well-known senators in the United States. The senior senator from California (the liberal stronghold), Diane Feinstein, is also co-sponsoring this bill. With this kind of bipartisan support, the EARN IT Act has a real chance of getting passed in the House and the Senate. If the EARN IT Act passes (which seems likely) and the commission recommends to Attorney General Barr that companies allow the government a backdoor into our messages (which is also likely), the subsequent bill will be extremely hard to stop. There is a provision in the EARN IT Act that says the subsequent bill will be fast-tracked through Congress, leaving almost no time for debate on 4th Amendment rights. The House and the Senate will each get only ten hours to debate the bill (which passes extraordinarily fast, let me assure you). If Speaker Pelosi is able to force House Democrats to fall in line and Republicans are able to close ranks like they usually do, this bill will sail through with minimal problems.
The introduction of the EARN IT Act is only made all the more problematic by the recent Senate vote on the USA Freedom Reauthorization Act which restores government surveillance powers that expired in March due to the expiration of Section 215 of the Patriot Act. We should all know this section, which essentially allows law enforcement officials to obtain “secret orders” to order telecom companies to hand over “tangible” evidence, like phone records or browser histories, from a Foreign Intelligence Surveillance Court (FISC). Now, this court system was established by FISA, the Foreign Intelligence Surveillance Act, and the judges on the court are appointed solely by the Chief Justice of SCOTUS, without any Congressional oversight. This court holds secret hearings and only hears arguments from government attorneys; without any oversight from the public and with secret orders that don’t notify someone if their rights are being violated, there aren’t many ways to tell if your privacy is being invaded. The 2013 intelligence leak by Edward Snowden is the closest thing we have to see how wide-reaching the government’s power is. It was leaked that the NSA was able to force a subsidiary of Verizon to hand over all comprehensive telephone data, including location, about calls made “wholly within the United States.” It was also reported that this court had been issuing such broad orders to all telecom companies since 2006. This is the kind of behavior being reauthorized by the recent Senate vote on the USA Freedom Act.
The whole point of a republic is that our elected officials make sure they serve us well, since that’s why they’re called “public servants.” We should make sure they do their jobs and actually represent what the majority of the American people want by striking down this bill. The actual Patriot Act expired in 2015 and while government officials feign sympathy for us, they’ve repeatedly voted to invade our privacy in the name of “national security”. If you don’t like your privacy being blatantly invaded, contact (or tell your parents to contact) your federal senators (Ted Cruz and John Cornyn) to vote against EARN IT and contact your local House representative (which can be done through a quick Google Search) to make sure they won’t support the USA Freedom Reauthorization Act or EARN IT.