THE EARN IT ACT (USA legislation) IS BACK, AND IT’S MORE DANGEROUS THAN EVER!

[darknessblade]

Summary

On January 31, Senator Richard Blumenthal, together with 18 co-sponsors from both parties, reintroduced the EARN IT Act. Two days later, the House reintroduced its version too. Last introduced in 2020, the EARN IT Act would, if passed, pare back online service providers’ broad immunity under a federal law called Section 230, exposing them to civil lawsuits and state-level criminal charges for the child sexual abuse material (CSAM) posted by their users.

 

Quotes

Quote

{Petition.org}
The EARN IT ACT is a bill that's weaseling its way through Congress that could have severe implications on violating privacy rights, essentially giving back doors to government law enforcement agencies and hackers for encryption. The act makes it so websites based in the United States have to follow guidelines that include eliminating end to end encryption or else they run the risk of opening themselves up to being sued by literally anyone. The EARN IT ACT a bad idea for everyone who uses the internet, and is a gross violation of the 4th amendments prohibition of unreasonable search and seizure.

 

Quote

[NextTV]
“Prosecutors are thrilled to once again support the EARN IT Act, a bill that would hold the tech industry accountable for the exploitation of children on their platforms," said NDAA. "We look forward to working alongside Senator Lindsey Graham and Senator Richard Blumenthal to #ProtectKidsOnline.”

 

My thoughts

As i am not a citizen of the USA this law does not affect me in the slightest. thus i cannot give concrete any opinion on it.

Other than that is is 1 massive  Privacy concern, making the act/law very dangerous.

Not forgetting if i link it to Facebook wanting to pull out of the EU if they cannot store EU consumers data on USA servers, depending on how broad the law is interpreted

It could mean that the USA government agency's would have no issue breaching the Privacy shield rules protecting EU consumer data that is stored on USA servers.

 

Sources

http://cyberlaw.stanford.edu/blog/2022/02/earn-it-act-back-and-it’s-more-dangerous-ever

https://www.eff.org/deeplinks/2022/02/if-earn-it-passes-what-happens-your-iphone-wont-stay-your-iphone

https://www.politico.com/newsletters/weekly-cybersecurity/2022/02/07/encryption-supporters-gear-up-for-another-earn-it-fight-00006070

https://www.nexttv.com/news/das-others-make-case-for-earn-it-act

 

Wikipedia article/information of the EARN IT ACT

https://en.wikipedia.org/wiki/EARN_IT_Act
 

 

Voice your concerns:

https://act.eff.org/action/stop-the-earn-it-act-to-save-our-privacy?s=09

Petition against the Earn it act

https://www.change.org/p/united-states-supreme-court-halt-the-earn-it-act

[jagdtigger]

Whats next? Opening up postal services to lawsuits because criminals use them to ship body parts and what not?   This bill stinks to high heavens.....

[wanderingfool2]

9 minutes ago, jagdtigger said:

Whats next? Opening up postal services to lawsuits because criminals use them to ship body parts and what not?   This bill stinks to high heavens.....

I agree, but I think the introduction of this act does highlight a major issue in terms of law enforcement in the modern age.

 

You have the right to not be a witness against yourself, which has been extended to passwords and unlocking of phones.  You also have phones that utilize encryption, and a service that utilizes end-to-end encryption.  In criminal proceeding you aren't allowed using the absence of an answer to infer they did what they were accused of.

 

So with the above said, how do you prosecute someone like the above?  If you have valid reason to think that the offending party committed the crime, but evidence to convict exists on the phone/messaging.  As technology gets more and more secure, law enforcement will start hitting up against this more and more often.

 

I am against this bill, as I think touching section 230 to weaken it to the point the encryption (or else face lawsuits) is the wrong way to go...but unfortunately the only solution I can think of is modifying how the 5th amendment works. *As unpopular as this might be*

[jagdtigger]

12 minutes ago, wanderingfool2 said:

but unfortunately the only solution I can think of is modifying how the 5th amendment works.

Its unpopular for a reason, weakening a corner stone like that is a can of worm that should be kept shut at all costs. Unless you want to go back to the dark ages....

 

/edit

"Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety." - Benjamin Franklin

 

[Lightwreather]

Just gonna post a CGP greay here that might be appropriate:

 

[IPD]

Complex and unnecessary piece of legislation.  All you have to do to simplify and fix the issue is to have companies declare if they are a publisher or a platform.  One or the other.  Not both.  And no migration between the two.

 

-Publishers are culpable to the full extent of the law, are allowed carte-blanche censorship over their platforms, and do not quality for section 230.

 

-Platforms are not culpable, qualify for section 230, and may not censor any content except in cases where it directly violates existing criminality statutes, is demonstrably libelous/slanderous, etc.

 

---

I've said it before and I will keep repeating it ad nauseum.  The issue is you have companies that want it both ways.  Eliminate that, and the problem ceases to exist.

[wanderingfool2]

3 minutes ago, jagdtigger said:

Its unpopular for a reason, weakening a corner stone like that is a can of worm that should be kept shut at all costs. Unless you want to go back to the dark ages....

That is the issue though, no one states a solution.

 

Unless if you are happy the way things are, which then you need to accept that there will be crimes that exist that the police realistically can't do much about (without burning through crazy amounts of resources).  An example of this would be a peeping tom/voyeurism.  Someone taking an inappropriate picture, and being caught.  The person might be held by the police, but the most they can charge the person for is trespass because the phone is locked, and it's just hear-say that they took pictures.  Even the act of distribution might not be able to charged, since one can't access the persons phone or the person's phone they sent the message to.  So in effect a decently serious crime could not be prosecuted under the basis that they can't access a phone (even though there would be good suspicion that the crimes occurred).

 

It's important to remember that when things such as the 5th amendment was drafted, the concept of devices that will be able to hold evidence of a crime (without any ability to access) did not exist [The closest analogy was a safe, but even in those days everyone knew it could be brute forced within a reasonable amount of time].  It's also I think wrong to assume it would necessarily open a can of worms.  Any modification would be watched like a hawk, by both parties, and any modification would likely be minor.  Examples being, warrants required to compel access to a device where no other reasonable means of accessing said device are required.  Something as simple as that would in effect protect the person from abuses, as if the processes is abused (say overly broad warrant for access to information) it would and could be challenged in court and compensation awarded.

 

 

[jagdtigger]

25 minutes ago, wanderingfool2 said:

That is the issue though, no one states a solution.

Because there is no good solution for it. Even properly written laws get abused (see: Protonmail got forced by anti-terror law to dish out info about a simple activist), let alone a huge loophole like a weakened 5th amendment.

 

25 minutes ago, wanderingfool2 said:

you need to accept that there will be crimes that exist that the police realistically can't do much about

This isnt related to the topic at hand. The police always had cases where they cant do a thing, still have, and always will. Just look up no-go zones, even police wont set foot into one of those places...

[ravenshrike]

2 hours ago, jagdtigger said:

Whats next? Opening up postal services to lawsuits because criminals use them to ship body parts and what not?   This bill stinks to high heavens.....

Last I checked the post office couldn't arbitrarily ban people from using their services or tamper with their mail. At the end of the day FB and Google have only themselves to blame.

[WolframaticAlpha]

smfh

More important than passing this would be to ensure the technical literacy and develop a scale to quantify common sense, so that we can implement a minimum requirement for them to contest elections.

 

"Oh, I am sorry, but you have -3 common sense points. minimum level for becoming a politician is -1!"

[BuckGup]

9 minutes ago, ravenshrike said:

Last I checked the post office couldn't arbitrarily ban people from using their services or tamper with their mail. 

Nope that's a lie. The USPS cannot open a package unless there is suspicions, which really can be anything, then they are free to open it and seize it. Most of the time to avoid delays they just stab the package and look inside with a probe cam as it's technically not opening the package or use an Xray machine or dogs. The USPS has every legal right to seize your packages, open them, and proceed with legal charges if they are inclined to do so and can prove it. Private couriers are liable for what's inside the packages so they are more rigorous than the USPS and have significantly less parcels to process. This is why people use the USPS to ship illicit materials as it has the best chance of making it with the lowest legal risk of any mail courier. 

 

As for the article it's hilarious. Everyone is saying how bad of an idea this is universally and yet they still proceed. I sorta want it to go through just to see how big of a shit show goes down. It would be even more funny if it passes and everyone targets government officials 

[jagdtigger]

11 minutes ago, ravenshrike said:

Last I checked the post office couldn't arbitrarily ban people from using their services or tamper with their mail. At the end of the day FB and Google have only themselves to blame.

Why? They should otherwise they should be liable like any other service provider based on the twisted and unrealistic logic of this act....

[Middcore]

40 minutes ago, ravenshrike said:

Last I checked the post office couldn't arbitrarily ban people from using their services or tamper with their mail. At the end of the day FB and Google have only themselves to blame.

 

You seem to be confused about the reasoning behind this assault on Section 230.

 

Without running completely afoul of the forum's rules against political topics, there is a segment which for several years been clamoring for alterations to Section 230 because (I cannot describe it more charitably while still being accurate) they are butthurt that Facebook, Google, etc. can ban users for posting content they deem harmful. Their reasoning is based on an imagined distinction between "platforms" and "publishers" (Section 230 makes no such distinction) and essentially goes that there are so many users on these sites saying what they want, the sites are obligated to let anyone use them to say anything they want. Basically it's like they argue that if there's one really popular neighborhood bar, the owners of said bar have no right to throw out a customer who stands on a table and starts shouting racist slurs and tell them to find another bar to go be racist in because the other bars are all shittier and less popular. Their logic is a half-step removed from the ignorants who claim that getting banned from an internet forum is a violation of their First Amendment free speech rights because they don't realize the First Amendment binds the government and not private entities. They don't realize that if the Section 230 protections for these sites were removed, the result would be most such sites simply removing the ability for users to post content altogether, because the sites themselves would become liable for anything posted. 

 

The legislation this post is about, however, really has nothing to do with that. The justification for this bills is just your garden-variety "tough on crime," won't-someone-think-of-the-children, why-do-you-care-about-privacy-if-you-have-nothing-to-hide, I-get-a-boner-thinking-about-Panopticons stuff. Although I have no doubt that the bottom-feeders who think YouTube should be legally obligated to host their Holocaust denial videos would welcome its passage for their own reasons. 

[wanderingfool2]

33 minutes ago, jagdtigger said:

Because there is no good solution for it. Even properly written laws get abused (see: Protonmail got forced by anti-terror law to dish out info about a simple activist), let alone a huge loophole like a weakened 5th amendment.

I've been over this with you before, it wasn't even an anti-terror law that was being broken.  The activists were actively breaking a law, theft/damage to property, and trespass which also is a Swiss law, which let them get the IP address to identify their location.  So that is not a good example of a law being abused.

 

Also, I think it is quite reasonable to weaken the 5th amendment to the extent of making people provide access to a phone with the proper safeguards in place (e.g. Warrant, and even could put in a more strict procedure than a warrant).  I don't agree with weakening encryption, so I see as technology advances it's going to have to be the 5th amendment that needs to give.  The fact is, if there is a reasonable suspicion that evidence exists on a device that only the accused can access, it is my belief police should be able to access that information by compelling the person to.

 

The fact is, as more and more things become digital there are going to be a growing number of crimes committed that cannot be solved using the conventional method of police work [or at least cost of police work will sky-rocket].  Examples being ones where text messages showed a person was guilty of murder.  If the communication happened on an E2E (or during the time where devices were password protected) the case wouldn't have the smoking gun to convict.

[Sauron]

I want to comment but anything I'd say would violate the no politics rule

[jagdtigger]

49 minutes ago, wanderingfool2 said:

, it wasn't even an anti-terror law that was being broken.

But it still got invoked regardless, hence it qas abused....

And its the perfect example, just like how this was invoked for a lesser cryme it was never intended to cover this act/weakened 5th amendment would open the flood gates for mass abuse....

Edited February 9, 2022 by jagdtigger

[RejZoR]

They'll just keep on trying until it'll eventually pass under some even dumber name? Looks like it...

[wanderingfool2]

21 minutes ago, jagdtigger said:

But it still got invoked regardless, hence it qas abused....

And its the perfect example, just like how this was invoked for a lesser cryme it was never intended to cover this act/weakened 5th amendment would open the flood gates for mass abuse....

Look it up, it wasn't anti-terror laws that were used to compel ProtonMail.  Sure, ProtonMail used "in France where terror laws are inappropriately used" as a quote, but it's utterly wrong to keep linking it with the ProtonMail and France because guess what; it wasn't anti-terror laws that were used.  So no, it isn't a good example since the case you are saying was an abuse of the law wasn't an abuse of the law.  ProtonMail used wordplay and you and others utterly fell for it.

 

ie. to sum it, you are wrong it wasn't anti-terror laws.  It was like what I said destruction of property, theft etc laws (not anti-terror).  The exist of anti-terror laws didn't change a thing.

 

Also saying it opens a flood gates without giving any hypothetical examples.  A well written amendment to the 5th wouldn't open up the flood gates, it just gives the extra power needed in cases that weren't conceivable back when the amendment was created.  With my example, needing a warrant to compel someone to provide access, and a stipulation that there would be no other reasonable means of obtaining the information.

 

Again, with this topic, I don't agree with the law but honestly we can't keep sticking out heads in the sand pretending like some of the advancements in technology isn't creating legal issues.

[Salv8 (sam)]

hooray more privacy violations!

 

ya know, a bunker in the sticks really is starting to become a compelling option these days.

[Zodiark1593]

42 minutes ago, wanderingfool2 said:

 

 

Also saying it opens a flood gates without giving any hypothetical examples.  A well written amendment to the 5th wouldn't open up the flood gates, it just gives the extra power needed in cases that weren't conceivable back when the amendment was created.  With my example, needing a warrant to compel someone to provide access, and a stipulation that there would be no other reasonable means of obtaining the information.

 

Again, with this topic, I don't agree with the law but honestly we can't keep sticking out heads in the sand pretending like some of the advancements in technology isn't creating legal issues.

Even with your suggestion, it would still fail to accomplish your goals as it would lack any meaningful teeth to target serious crimes, while retaining all the downsides of giving more power to government. 
 

While in Civil Court, withholding of evidence allows the Judge to give an Adverse Inference instruction, where the Jury may conclude the missing evidence to be damaging to whatever side failed to present it. That is not the case in Criminal Proceedings however, where an Inference does not hold up to the standard of Beyond Reasonable Doubt. 
 

So the only available option being to have failure to disclose a crime itself, or contempt. In civil cases, this generally works as a monetary judgement is preferable to a jail sentence. In a criminal proceeding, where stakes are years of prison time, a defendant could very well choose to not comply, and potentially receive a lesser penalty than what the original charges would’ve brought (as the prosecutor would not able to move forward if he/she truly lacked the required evidence). 

And finally, owing to the 8th amendment, the punishment that can be invoked for non compliance is limited. Obviously, a flat decade is grossly excessive a sentence. This also extends to contempt of court. Should the defendant legitimately forget the password during a year or so of jail time owing to said contempt (burden is on courts to prove otherwise), courts would have no legal grounds to keep the defendant incarcerated. Perfectly reasonable for an individual to forget a password to a device they hadn’t used for a year. And you probably can’t get someone on the sex offender list for forgetting a password either. 
 

Not a lawyer, so the above are more educated guesses than anything. But many of our laws and legal proceedings are intertwined, and messing with one will almost certainly bite you elsewhere. In this case, to achieve your desired outcome would involve modifying no less than two amendments (and from the Bill or Rights at that), and potentially our core legal system. 
 

Tl,dr: You wanted the can of worms, you got them.

[CarlBar]

4 hours ago, wanderingfool2 said:

Examples being ones where text messages showed a person was guilty of murder.

 

Counter example. Two people discussing such a thing on an old fashion land line. Can't prove it can't access it retroactively, (no records), and can't access it proactively without reasonable cause, (Wire Tapping).

 

I actually agree that somthing needs to be done online. But this isn't it and examples like this ignore the realities the world operated with for centuries where in general physical evidence of some forms might have existed, but by the time the police are investigating it.

 

Where it gets a bit messy are when your dealing with a purely digital crime. If it's regarding a physical crime, well all of the old school physical evidence is available still. The police have no more and no less than they had previously with the existence of the internet.

 

But purely digital crimes don't have physical assets to be examined for fingerprints, DNA, Loose Fibres, e.t.c. 

[Arika]

8 hours ago, darknessblade said:

As i am not a citizen of the USA this law does not affect me in the slightest. thus i cannot give concrete any opinion on it.

wrong. if you connect to any website based in the US it will affect you.

[SolarNova]

That will blow up in their face lol.

[darknessblade]

6 hours ago, Arika S said:

wrong. if you connect to any website based in the US it will affect you.

You are wrong about that

https://gdpr.eu/

 

Also check the linked topic regarding Facebook wanting to Pull out just because they cannot store data from European consumers. 

This will show how strict the European union is regarding privacy protection for its consumers that visit USA owned companies/based sites.

[Brooksie359]

12 hours ago, BuckGup said:

Nope that's a lie. The USPS cannot open a package unless there is suspicions, which really can be anything, then they are free to open it and seize it. Most of the time to avoid delays they just stab the package and look inside with a probe cam as it's technically not opening the package or use an Xray machine or dogs. The USPS has every legal right to seize your packages, open them, and proceed with legal charges if they are inclined to do so and can prove it. Private couriers are liable for what's inside the packages so they are more rigorous than the USPS and have significantly less parcels to process. This is why people use the USPS to ship illicit materials as it has the best chance of making it with the lowest legal risk of any mail courier. 

 

As for the article it's hilarious. Everyone is saying how bad of an idea this is universally and yet they still proceed. I sorta want it to go through just to see how big of a shit show goes down. It would be even more funny if it passes and everyone targets government officials 

You gotta love dogs. You can basically trian them to say that they smell drugs for a free warrant to search people's cars and the like. Fun fact is that in a controlled setting dogs are accurate about up to 80 something percent. Then you look at the false positive rates in the real world and you see they are wrong something like 70% of the time. Yeah I am going to go out on a limb here and say they are probably having the dogs do false positives on purpose just so they can search. I wouldn't doubt that this wouldn't be used similarly where they clearly just search because they feel like it.