senate – Techdirt (original) (raw)

Senate To Kids: We’ll Listen To You When You Agree With Us On KOSA

from the listen-to-the-children...-not-those-kids dept

Apparently, Congress only “listens to the children” when they agree with what the kids are saying. As soon as some kids oppose something like KOSA, their views no longer count.

It’s no surprise given the way things were going, but the Senate today overwhelmingly passed KOSA by a 91 to 3 vote. The three no votes were from Senators Ron Wyden, Rand Paul, and Mike Lee.

There are still big questions about whether the House will follow suit, and, if so, how different their bill would be, and how the bills from the two chambers would be reconciled, but this is a step closer to KOSA becoming law, and creating all of the many problems people have been highlighting about it for years.

One thing I wanted to note, though, is how cynical the politicians supporting this have been. It’s become pretty typical for senators to roll out “example kids” as a kind of prop as for why they have to pass these bills. They will have stories about horrible things that happened, but with no clear explanation for how this bill would actually prevent that bad thing, and while totally ignoring the many other bad things the bill would cause.

In the case of KOSA, we’ve already highlighted how it would do harm to all sorts of information and tools that are used to help and protect kids. The most obvious example is LGBTQ+ kids, who often use the internet to help find their identity or to communicate with others who might feel isolated in their physical communities. Indeed, GOP support for KOSA was conditioned on the idea that the law would be used to suppress LGBTQ+ related content.

But, I did find it notable that, after all of the pro-KOSA team using kids as props to vote for the bill, how little attention was given last week to the ACLU sending hundreds of students to Congress to tell them how much KOSA would harm them.

Last week, the American Civil Liberties Union sent 300 high school students to Capitol Hill to lobby against the Kids Online Safety Act, a bill meant to protect children online.

The teenagers told the staffs of 85 lawmakers that the legislation could censor important conversations, particularly among marginalized groups like L.G.B.T.Q. communities.

“We live on the internet, and we are afraid that important information we’ve accessed all our lives will no longer be available,” said Anjali Verma, a 17-year-old rising high school senior from Bucks County, Pa., who was part of the student lobbying campaign. “Regardless of your political perspective, this looks like a censorship bill.”

But somehow, that perspective gets mostly ignored in all of this.

It would have been nice to have had an actual discussion on the policy challenges here, but from the beginning, KOSA co-sponsors Richard Blumenthal and Marsha Blackburn refused to take any of the concerns about the bill seriously. They frequently insisted that any criticism of the bill was just “big tech” talking points.

And, while they made cosmetic changes to try to appease some, the bill does not (and cannot) fix its fundamental problems. The bill is, fundamentally at its heart, a bill that is about censorship. And, while it does not directly demand censorship, the easiest and safest way to comply with the law will be to takedown whatever culture war hot topic politicians don’t like.

It’s kind of incredible that many of those who voted for the bill today were big supporters of the Missouri case against the administration (including Missouri’s Attorney General who brought that suit, Eric Schmitt, who voted in favor of KOSA today). So, apparently, according to Schmitt, governments should never try to influence how social media companies decide to take down content, but also government should have the power to take enforcement action against companies that don’t take down content the FTC decides is harmful.

There is a tremendous amount of hypocrisy here. And it would be nice if someone asked the senators voting in favor of this law why they were going against the wishes of all the kids who visited the Hill last week. After all, that’s what the senators who trotted out kids on the other side tried to do to those few senators who pointed out the flaws in this terrible law.

Filed Under: child safety, kids, kosa, mike lee, rand paul, ron wyden, senate, think of the children

KOSA Will Come To The Senate Floor On Tuesday, Senators Paul & Wyden Explain Why It’s Still Bad

from the bad-bill-rising dept

On Thursday, as expected, the Senate voted for “cloture” on the extremely problematic Kids Online Safety Act (KOSA). The cloture vote is a procedural vote necessary to bring a full vote to the floor. Previously, attempts to move KOSA forward “by unanimous consent” could be (and were) blocked by objections from at least one Senator (often Senator Wyden).

The cloture vote, in effect, overrides such a block, and moves to have a second vote on the floor. In this case, the cloture vote won, 86 to 1, meaning the real vote will happen on Tuesday. The one “nay” vote was from Senator Rand Paul. It took some by surprise, but Senator Wyden voted yes on cloture.

It’s been widely reported that Schumer has been negotiating with Wyden on some changes to try to deal with the larger concerns with KOSA. In the end, some small, but important changes were made to the bill at the behest of Wyden, including explicit text that nothing in KOSA overrides Section 230.

My purely speculative guess is that the basic deal was that with this minor change, Wyden would agree to vote in favor of cloture, but could still vote against the actual bill next week. Indeed, immediately after the cloture vote, Wyden put out a statement about why he could not support the bill:

“After months of negotiations, the Kids Online Safety Act (KOSA) has been improved, thanks to hard work by Commerce Chair Cantwell and Leader Schumer. The changes that I, LGBTQ+ advocates, parents, student activists, civil rights groups and others have fought for over the last two years have made it less likely that the bill can be used as a tool for MAGA extremists to wage war on legal and essential information to teens.

“I thank all of the advocates, parents, young people and concerned citizens that have raised their views about KOSA with me, both in support of the bill and with concern about its implications.

“I strongly support elements of this bill, especially Senator Markey’s Children and Teens’ Online Privacy Protection Act, which will safeguard the personal information of young people online. Provisions regulating addictive design elements used by platforms to keep young people hooked are valuable safeguards that will make tech products safer.

“Unfortunately, KOSA’s improvements, while constructive, remain insufficient. I fear this bill could be used to sue services that offer privacy-enhancing technologies like encryption or anonymity features that are essential to young people’s ability to communicate securely and privately without being spied on by predators online. I also take seriously concerns voiced by the American Civil Liberties Union, Fight for the Future, and LGBTQ+ teens and advocates that a future MAGA administration could still use this bill to pressure companies to censor gay, trans and reproductive health information.

“For these reasons, I cannot vote for this legislation.

“However, if this bill is signed into law by the President, I look forward to working with my colleagues to conduct rigorous oversight of the FTC to ensure that my worst fears about this bill do not come true and that kids benefit from a safer internet.

“Whatever happens to this bill, I look forward to working with my colleagues on other initiatives, including regulating harmful and manipulative platform designs, to tackle the vital topic of kids’ safety online. I also remain convinced that this effort must go hand-in-hand with passing a strong baseline privacy law for all Americans.”

And, thus, the underlying and still fundamentally dangerous bill is slightly less dangerous and the “trade” to improve the bill was that Wyden would vote for cloture. And that vote was effectively meaningless, since the cloture threshold would have been easily met even if Wyden had voted no on cloture.

The one nay vote, Senator Paul, also sent a “Dear Colleague” letter to the other Senators, and it’s one of the clearest, most straightforward explanations of why KOSA is bad. The letter is written in a manner that both Democrats and Republicans should be able to understand (i.e., it doesn’t engage in partisan culture war nonsense, but just spits facts).

Dear Colleague:

This week, the Senate will consider S. 1409, the Kids Online Safety Act (KOSA). While the intent of this legislation is laudable, the bill raises significant First Amendment concerns, imposes vague, undefined requirements on internet platforms, and empowers politically motivated enforcers to advance their own ideological interests to the detriment of the American people. I will be voting against this bill, and I encourage you to do the same.

KOSA would impose an unprecedented “duty of care” on internet platforms to mitigate certain harms associated with mental health, such as anxiety, depression, and eating disorders. While proponents of the bill claim that it is not designed to regulate content, imposing a “duty of care” on online platforms to mitigate harms associated with mental health can only lead to one outcome: the stifling of First Amendment protected speech.

Should platforms stop children from seeing climate-related news because climate change is one of the leading sources of anxiety amongst younger generations? Should they stop children from seeing coverage of international conflicts because it could lead to depression? Should pro-life groups have their content censored because platforms worry that it could impact the mental well-being of teenage mothers? This bill opens the door to nearly limitless content regulation.

The bill contains a number of vague provisions and undefined terms. The text does not explain what it means for a platform to “prevent and mitigate” harm, nor does it define “addiction-like behaviors.” Additionally, the bill does not explicitly define the term “mental health disorder.” Instead, it references the Fifth Edition of the Diagnostic and Statistical Manual of Mental Health Disorders or “the most current successor edition.” As such, the definition could change without any input from Congress.

We do not impose these types of burdens on any other sector of the economy. For example, the bill seeks to protect minors from alcohol and gambling ads on certain online platforms. However, minors can turn on the TV to watch the Super Bowl or the PGA tour and see the exact same ads without any problem.

This bill is a Trojan Horse. It claims to protect our children, but in reality, it stifles free speech and deprives Americans of the numerous benefits created by the internet. Any genuine effort to protect children online must start at home. And if the government does decide to get involved, it must ensure that First Amendment rights are protected, and platforms have clear guidelines on how to comply with the law. This bill fails to do either.

I intended to vote against S. 1409 and encourage you to do the same.

Honestly, this is one of the most compelling arguments against KOSA that I’ve seen, so kudos to Senator Paul and his staff for writing it. The point about how kids can just turn on TV and see the exact same content is a pretty key argument.

Unfortunately, it’s unlikely to have even the slightest effect. KOSA has 70 cosponsors, all of whom want to get nonsense headlines in their local papers about how they voted to “protect the children” even as the bill will actually do real harm to children.

While the vote on Tuesday will be important, the real fight now moves to the House. It’s unclear if there’s consensus on moving on the bill there, and if so, in what form. The current House bill is different than the Senate one, so the two sides would have to agree on what version moves forward. The real answer should be neither, but it seems like the ship has sailed on the Senate version.

Still, kudos to Wyden and Paul for continuing to fight the good fight against a dangerous bill.

Filed Under: chuck schumer, cloture, congress, floor vote, house, kosa, rand paul, ron wyden, senate

Kids Don’t Think Congress Has Their Best Interests In Mind With Their Grandstanding ‘Protect The Children’ Hearing

from the the-kids-are-alright dept

We’ve covered a few stories this week related to the Senate hearing on “kids safety” and there’s going to be a lot more in the coming weeks as those same Senators grandstand and yell about “protect the children!” and generally make fools of themselves. I think Casey Newton’s summary of the spectacle is about right:

But while Congress is generally more educated on tech subjects today than it was when the backlash began in 2017, the hearings still play out much as they did at the beginning: with outraged lawmakers scolding, questioning, and interrupting their witnesses for hours on end, while bills that might address their concerns continue to languish without ever being passed. With so little of substance accomplished, the press can only comment on the spectacle: of the loudest protesters, the harshest insults, and the tensest exchanges.

The whole thing is theater, not legislating (and certainly not for educating our lawmakers).

And while there were some children used as props by the lawmakers, it’s interesting to hear that an awful lot of kids seem dubious that Congress actually has their interests at heart.

There’s a great piece in the Washington Post by Taylor Lorenz, looking at what actual kids have been saying about these bills… and they don’t seem particularly supportive.

“These senators don’t actually care about protecting kids, they just want to control information,” one teenager posted. “If congress wants to protect children, they should pass a … privacy law,” another teenager said. Others in the server accused the lawmakers of “trying to demonize the CEOs to push their … bills,” which were often described with profanity.

[….]

“The internet allows people to see different ideas,” said Nathan, a 15-year old in New York who agreed to speak to The Post on the condition that they be identified only by their first name. “They can hear different ideas. They can learn about LGBT people. They can see so many things. These bills are created to censor and hide children. They are created to cut people off from the outside world.”

Nathan, who is nonbinary, said the internet helped them overcome an eating disorder. They worried the information that helped them would no longer be accessible if social media platforms were required to wall off certain topics such as eating disorders.

The most poignant quote in the article to me was this one:

“Every person who claims to care about kids online is ignoring the fact that the internet is the only space left for kids,” May said. “In real life, you’re dealing with mass shooters, no public spaces that are free and nearby. Nobody has money to go hang out at a mall or anything.”

I keep bringing up the study from last year in the Journal of Pediatrics, mainly because it strongly suggests a leading cause of the mental health crisis we see today is that kids no longer have spaces they can go to hang out with other kids without parents hovering over them at all times. Social media has become that space for many kids… so of course, adults are trying to shut it down.

Filed Under: congress, kids online, kosa, mental health, protect the children, senate

EARN IT Act Is Back, And It’s Still Terribly Destructive

from the the-monster-that-never-dies dept

Some politicians never learn. Congress has been trying to shove through the EARN IT Act for the past two sessions, and thankfully it’s failed both times. But, now it’s back. Kinda. Far be it for the politicians looking to destroy the internet and encryption that keeps us safe to actually reveal the latest version of EARN IT so that the public can review it. They haven’t done that. Instead, they’ve just announced that the still unreleased bill will be marked up on Thursday (though, as I understand how the Senate Judiciary Committee works, this almost certainly means the actual markup will be next Thursday — don’t ask me why, but they seem to always announce a markup and calendar it a week early, and then “hold it over” to do the actual markup a week later).

For what it’s worth, someone slipped me a copy of the latest draft (thank you, friend) and it’s got all the same problems as the bill from last session. Specifically, it includes what appears to be nearly identical misleading language from the last EARN IT regarding encryption. It includes language that pretends that it is not an attack on encryption, because it says the use of encryption shall not be “an independent basis for liability.”

Of course, that doesn’t mean it can’t be considered with some other factor. Even worse, in the next section, it wipes away the entire preceding section anyway by saying that nothing in that paragraph “shall be construed to prohibit a court from considering evidence of actions or circumstances described in that subparagraph if the evidence is otherwise admissible.”

In other words, under EARN IT, encrypting content and messages is a liability. The only thing the bill limits is the finding of liability just for encryption alone. However, as long as anyone argues some other factor, they can then bolt on encryption and say that the use of encryption supports the argument that the service is up to no good.

I mean, it’s kinda funny that they still even include the language pretending this doesn’t touch encryption, considering that sponsor Senator Richard Blumenthal admitted in an interview last year that the point of the bill was totally to target services that use encryption.

I’m not going to go through the details of all of the many reasons this is bad and dangerous. We’ve done that before. Suffice it to say this bill is an attack on encryption and the open internet. It will actually make law enforcement’s job way harder in tracking down purveyors of CSAM by making important evidence inadmissible. The entire approach of the bill seems to misunderstand basically everything about the internet, encryption, intermediary liability law, and how CSAM reporting currently works. No matter what problem EARN IT claims it’s trying to fix, it won’t actually fix them.

The premise of the bill assumes that companies aren’t reporting the child sex abuse material (CSAM) they find, but there’s little to no evidence to support that claim, and the law already requires them to report it. The problem seems to be that law enforcement isn’t doing much with that information. But magically adding liability to websites won’t fix any of that, and just makes it more difficult to collect the necessary evidence in a constitutional manner.

Filed Under: csam, earn it, encryption, intermediary liability, lindsey graham, richard blumenthal, senate

Over 60 Human Rights/Public Interest Groups Urge Congress To Drop EARN IT Act

from the it's-a-bad-bill,-senators dept

We’ve already talked about the many problems with the EARN IT Act, how the defenders of the bill are confused about many basic concepts, how the bill will making children less safe and how the bill is significantly worse than FOSTA. I’m working on most posts about other problems with the bill, but it really appears that many in the Senate simply don’t care.

Tomorrow they’ll be doing a markup of the bill where it will almost certainly pass out of the Judiciary Committee, at which point it could be put up for a floor vote at any time. Why the Judiciary Committee is going straight to a markup, rather than holding hearings with actual experts, I cannot explain, but that’s the process.

But for now at least over 60 human rights and public interest groups have signed onto a detailed letter from CDT outlining many of the problems in the bill, and asking the Senate to take a step back before rushing through such a dangerous bill.

Looking to the past as prelude to the future, the only time that Congress has limited Section 230 protections was in the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (SESTA/FOSTA). That law purported to protect victims of sex trafficking by eliminating providers? Section 230 liability shield for ?facilitating? sex trafficking by users. According to a 2021 study by the US Government Accountability Office, however, the law has been rarely used to combat sex trafficking.

Instead, it has forced sex workers, whether voluntarily engaging in sex work or forced into sex trafficking against their will, offline and into harm?s way. It has also chilled their online expression generally, including the sharing of health and safety information, and speech wholly unrelated to sex work. Moreover, these burdens fell most heavily on smaller platforms that either served as allies and created spaces for the LGBTQ and sex worker communities or simply could not withstand the legal risks and compliance costs of SESTA/FOSTA. Congress risks repeating this mistake by rushing to pass this misguided legislation, which also limits Section 230 protections.

It also discusses the attacks on encryption hidden deep within the bill.

End-to-end encryption ensures the privacy and security of sensitive communications such that only the sender and receiver can view them. This security is relied upon by journalists, Congress, the military, domestic violence survivors, union organizers, and anyone who seeks to keep their communications secure from malicious hackers. Everyone who communicates with others on the internet should be able to do so privately. But by opening the door to sweeping liability under state laws, the EARN IT Act would strongly disincentivize providers from providing strong encryption. Section 5(7)(A) of EARN IT states that provision of encrypted services shall not ?serve as an independent basis for liability of a provider? under the expanded set of state criminal and civil laws for which providers would face liability under EARN IT. Further, Section 5(7)(B) specifies that courts will remain able to consider information about whether and how a provider employs end-to-end encryption as evidence in cases brought under EARN IT. This language, originally proposed in last session?s House companion bill, takes the form of a protection for encryption, but in practice it will do the opposite: courts could consider the offering of end-to-end encrypted services as evidence to prove that a provider is complicit in child exploitation crimes. While prosecutors and plaintiffs could not claim that providing encryption, alone, was enough to constitute a violation of state CSAM laws, they would be able to point to the use of encryption as evidence in support of claims that providers were acting recklessly or negligently. Even the mere threat that use of encryption could be used as evidence against a provider in a criminal prosecution will serve as a strong disincentive to deploying encrypted services in the first place.

Additionally, EARN IT sets up a law enforcement-heavy and Attorney General-led Commission charged with producing a list of voluntary ?best practices? that providers should adopt to address CSAM on their services. The Commission is free to, and likely will, recommend against the offering of end-to-end encryption, and recommend providers adopt techniques that ultimately weaken the cybersecurity of their products. While these ?best practices? would be voluntary, they could result in reputational harm to providers if they choose not to comply. There is also a risk that refusal to comply could be considered as evidence in support of a provider?s liability, and inform how judges evaluate these cases. States may even amend their laws to mandate the adoption of these supposed best practices. For many companies, the lack of clarity and fear of liability, in addition to potential public shaming, will likely disincentivize them from offering strong encryption, at a time when we should be encouraging the opposite.

There’s a lot more in the letter, and the Copia Institute is proud to be one of the dozens of signatories, along with the ACLU, EFF, Wikimedia, Mozilla, Human Rights Campaign, PEN America and many, many more organizations.

Filed Under: earn it, encryption, free speech, section 230, senate

The House Has Proposed An Excellent Broadband Bill. Telecom Lobbyists Will Make Sure It Never Passes.

from the round-and-round-we-go dept

Mon, Mar 15th 2021 05:30am - Karl Bode

Last week the House unveiled (a previous version of this story incorrectly stated the bill had been passed) the Accessible, Affordable Internet for All Act. The bill, which died last year after Mitch McConnell’s Senate refused to hold a vote on it, includes a lot of great things, including spending $94 billion on expanding broadband into underserved areas. There’s a ton of other helpful things in the proposal, like boosting the definition of broadband to 100 Mbps down (and upstream), requiring “dig once” policies that deploy fiber conduit alongside any new highway bills, and even a provision requiring the FCC to create rules forcing ISPs be transparent about how much they actually charge for monthly service.

A summary (pdf) of the bill offers some additional detail, such as the fact the bill includes a mandate that the government (specifically the Office of Internet Connectivity and Growth within the NTIA) more fully study the impact of affordability on broadband access. In the wake of allegations that the FCC’s subsidy auction process is a corrupted and exploited mess, the law also lays down a lot of groundwork to make the subsidization of broadband access more transparent, equitable, and accountable to genuine oversight with an eye on affordability (instead of exclusively focusing on access, which is the DC norm):

“The section also establishes certain requirements for projects funded under the program, including offering broadband service that provides at least 100/100Mbps with sufficiently low latency, offering broadband service at prices that are comparable to, or lower than, the prices charged for comparable service, and offering an affordable service plan. All bidders must meet objective, transparent criteria upfront that demonstrates technical and operational capacity to implement winning projects.”

There’s several other common sense proposals in the bill, like giving schools and libraries more leeway to use E-Rate funding to help shore up broadband access during the pandemic. I remain nervous about throwing billions in additional subsidies at the industry when the government still can’t accurately map where broadband is or isn’t available. Many of the same folks who view subsidization as a silver bullet (Democrat and Republican alike) still can’t even acknowledge that the two major contributors to US broadband sucking is monopolization, and state and federal corruption. Problems we seem intent on barely acknowledging, much less addressing.

Still, this is a genuinely good bill that includes a lot of common sense solutions for a problem that has taken on greater urgency during a public health crisis. Much like the last time the bill is likely to pass the House, then get blocked in the Senate. It seems unlikely this would win a straight 60 vote majority without demolishing the filibuster or burying it in some broader, much larger infrastructure bill, which seems increasingly possible.

For one thing, broadband monopolies will fight tooth and nail against any effort to increase the standard definition of broadband, just like the last few times the FCC has considered it. Sharing more data on pricing, and boosting the definition of broadband to symmetrical 100 Mbps will only highlight how feckless regulators and monopolization have muted competition, resulting in spotty coverage, high prices, and slow speeds. Make that data far more transparent and accessible, and somebody might just get the kooky idea to genuinely do something about it, and we can’t have that.

There’s several other things included in the bill that the telecom lobby will simply never allow, like a more competitive and transparent grant and subsidy process, which might (gasp) result in more federal funding going to smaller competitors. There’s also some language that requires paying a competitive rate and not scuttling unionization efforts the industry (and its congressional BFFs) will never tolerate. I guess the Democrats assume that because Covid is adding historic pressure on lawmakers to do more about broadband, they can somehow get the GOP (and centrist Democrat) votes needed to push this across the finish line.

But that seems to ignore forty years of history showing that the GOP –and more than a few Democrats– are opposed to absolutely anything that genuinely holds trusted intelligence partners like AT&T accountable, anything that brings transparency to advertising or pricing, anything that genuinely protects consumers from monopoly harms (be it privacy violations or net neutrality), or anything that even remotely risks hurting incumbent revenues and regional dominance by driving more competition to market. I don’t see that suddenly changing here, though I’d love to be surprised.

Filed Under: broadband, congress, digital divide, funding, house, senate

Because Congress Apparently Has NOTHING AT ALL IMPORTANT To Work On, It Introduced TWO MORE Section 230 Bills Yesterday

from the don't-you-people-have-work-to-do? dept

If you were in a coma for the past 12 months, just came out of it, and had to figure out what had happened in the last year or so solely based on new bills introduced in Congress, you would likely come to the conclusion that Section 230 was the world’s greatest priority and the biggest, most pressing issue in the entire freaking universe. I’ve completely lost track of how many new bills have been introduced this year — in the midst of a pandemic — that try to undermine and destroy the open internet enabled by Section 230 of the CDA. It’s absolutely ridiculous.

Last week we had Lindsey Graham and his garbage Online Content Policy Modernization Act. Josh Hawley, the lying demagogue, has probably introduced half a dozen bills aimed at undermining Section 230, including one a few weeks ago. On Tuesday of this week we had Senators Manchin and Cornyn introduce their despicable and dangerous See Something, Say Something Act.

And then, on Wednesday, we got two more truly awful anti-230 bills. What’s going on over there on Capitol Hill? If you introduce 12 bills to destroy the internet do you get a 13th one free?

First up, we had Reps. Sylvia Garcia and Ann Wagner introduce the House companion to the Senate’s EARN IT Act. We’ve spent months detailing how this bill is a two-fer: it’s dangerous for both encryption and Section 230. And yet, it now has bipartisan support in both the Senate and the House. Garcia seems so proud of being a part of this nonsense that she didn’t put the press release on her own website (though she did have time to put up a press release for a bill to rename a post office).

Ann Wagner, you may recall, is the force behind the previous disastrous anti-230 bill, FOSTA, who has spent the years since passing that bill just flat out lying about what the bill did. She claims it’s been a huge success, and yet it has yet to be used successfully, has been shown to put women’s lives in danger, and has made it more difficult for law enforcement to find actual sex traffickers.

But, not surprisingly, Wagner is touting her “success” with that terrible legislation in introducing this new garbage:

?I?m proud to join with my colleague Rep. Sylvia Garcia in introducing the EARN IT Act, critical legislation that will hold accountable bad actors that facilitate child sexual abuse material,? said Congresswoman Wagner. “This bill is the natural follow-up to FOSTA, my Fight Online Sex Trafficking Act, which amended section 230 to hold accountable websites that facilitate sex trafficking. As I have said many times, I believe that if exploitation is a crime offline, it should also be a crime online, and I?m delighted to continue working with survivors, advocates, law enforcement, and industry to protect children from online sexual exploitation.?

Yes, she keeps saying that “if it’s a crime offline, it should be a crime online” and it always has been. This bill, like her last bill, changed literally nothing about what was a “crime.” What it did was blame service providers for non-crimes, and made them less willing to host perfectly legal content. And, again, her bill has harmed survivors and made it more difficult for law enforcement, meaning it has done the opposite of protecting children from online sexual exploitation.

And the EARN IT Act, as we’ve discussed, will again make things worse. This version of EARN IT is even worse than the Senate version, which included a narrow (and most likely useless) attempt to say that it couldn’t be used to ban encryption. This version of the bill narrows that limitation, meaning encryption would be even more at risk.

And that was for the horrific bill we already knew about.

Next up to the plate is Senator John Kennedy with the ridiculously named Don’t Push My Buttons Act. As you may have guessed, it’s pushed all of my buttons for wasting my time in needing to respond to absolute wingnut batshittery in the form of you-can’t-actually-be-serious legislation. There have been so many dumb anti-230 bills that it’s hard to rank which one’s worse than the next, but this one is… just bad. Basically, this would take Section 230 away from any site that tracks any information on its users, or presents an algorithmically generated feed for its users. But, it would not apply if the users of those sites “knowingly and intentionally elect to receive” the algorithmically generated feed. And so sites that want to do that will just put it in their terms of service and make people agree to it and… what good does that do for anyone?

And what does this even have to do with Section 230 anyway? If you don’t like algorithmically generated feeds, it would seem that (1) you’re going to have a 1st Amendment issue to overcome at some point and (2) there are other tools in the toolbox and (3) it’s totally unrelated to the questions about Section 230. This is just “old man yells at cloud… and writes weird legislation.”

Kennedy is trying to get this bill attached as an amendment to Graham’s wacky bill that’s about to be marked up, and it’s just open season for crazy ideas on an issue that should not be a priority at this moment when people are literally dying by the thousands every damn day due to a pandemic that Congress seems to have decided to ignore.

Does this shit ever end?

Filed Under: ann wagner, congress, earn it, house, john kennedy, push my buttons, section 230, senate, sylvia garcia

Senators Graham And Blumenthal Can't Even 'Earn' The EARN IT Act: Looking To Sneak Vote Through Without Debate

from the don't-let-them dept

Senator Lindsey Graham very badly wants to push the extremely dangerous EARN IT Act across the finish line. He’s up for re-election this fall, and wants to burnish his “I took on big tech” creds, and sees EARN IT as his path to grandstanding glory. Never mind the damage it will do to basically every one. While the bill was radically changed via his manager’s amendment last month, it’s still an utter disaster that puts basically everything we hold dear about the internet at risk. It will allow for some attacks on encryption and (somewhat bizarrely) will push other services to more fully encrypt. For those that don’t do that, there will still be new limitations on Section 230 protections and, very dangerously, it will create strong incentives for internet companies to collect more personal information about every one of their users to make sure they’re complying with the law.

It’s a weird way to “attack” the power of big tech by forcing them to collect and store more of your private info. But, hey, it’s not about what’s actually in the bill. It’s about whatever bullshit narrative Graham and others know the press will say is in the bill.

Either way, we’ve heard that Graham and his bi-partisan supporter for EARN IT, Senator Richard Blumenthal, are looking to rush EARN IT through with no debate, via a process known as hotlining. Basically, it’s a way to try to get around any floor debate, by asking every Senator’s office (by email, apparently!) if they would object to a call for unanimous consent. If no Senator objects, then they basically know they can skip debate and get the bill approved. If Senators object, then (behind the scenes) others can start to lean on (or horse trade) with the Senators to get the objections to go away without it all having to happen on the floor of the Senate. In other words, Graham and Blumenthal are recognizing that they probably can’t “earn” the EARN IT Act if it has to go through the official process to have it debated and voted on on the floor, and instead are looking to sneak it through when no one’s looking.

While Senator Wyden (once again) has said he’ll do whatever he can to to block this, it would help if other Senators would stand up as well. Here’s what Wyden had to say about it:

The EARN IT Act will not protect children. It will not stop the spread of child sexual abuse material, nor target the monsters who produce and share it, and it will not help the victims of these evil crimes. What it will do is threaten the free speech, privacy, and security of every single American. This is because, at its core, the amended EARN IT Act magnifies the failures of the Stop Enabling Sex Traffickers Act–SESTA–and its House companion, the Fight Online Sex Trafficking Act–FOSTA. Experts believe that SESTA/FOSTA has done nothing to help victims or stop sex trafficking, while creating collateral damage for marginalized communities and the speech of all Americans. A lawsuit challenging the constitutionality of FOSTA on First Amendment grounds is proceeding through the courts, and there is bicameral Federal legislation to study the widespread negative impacts of the bill on marginalized groups.

Yet, the authors of the EARN IT Act decided to take this kind of carveout and expand it further to State civil and criminal statutes. By allowing any individual State to set laws for internet content, this bill would create massive uncertainty, both for strong encryption and constitutionally protected speech online. What is worse, the flood of State laws that could potentially arise under the EARN IT Act raises strong Fourth Amendment concerns, meaning that any CSAM evidence collected could be rendered inadmissible in court and accused CSAM offenders could get off scot-free. This is not a risk that I am willing to take.

Let me be clear: The proliferation of these heinous crimes against children is a serious problem. However, for these reasons and more, the EARN IT Act is not the solution. Moreover, it ignores what Congress can and should be doing to combat this heinous crime. The U.S. has a number of important evidence-based programs in existence that are proven to keep kids safe, and they are in desperate need of funding to do their good work. Yet the EARN IT Act doesn’t include a single dollar of funding for these important programs. It is time for the U.S. Government to spend the funds necessary to save children’s lives now.

While a Wyden hold would block any attempt to get unanimous consent via the hotlining process, it would help quite a lot if other Senators were willing to speak up and stand with him as well. If it’s just Wyden, then he’ll face tremendous pressure to remove the hold. If more Senators join Wyden in saying this isn’t okay, then Graham and Blumenthal will realize they have a bigger challenge in front of them.

Again, if you haven’t been following this debate closely, everything that Wyden says above is accurate. EARN IT is an attack on both free speech and privacy (a twofer) without doing anything to actually deal with the problem of child sexual abuse material online. That is very much a law enforcement issue, and it’s one which Congress has failed to provide the funds to law enforcement that it promised on this issue, and (even worse) the DOJ has simply ignored its requirement mandates to deal with this issue as required by Congress. The DOJ seems more focused on attacking tech companies and blaming them for its own failure to do its job.

The EARN IT Act is an incredibly dangerous piece of legislation, but it’s also a complicated one — one that many people don’t understand. But Senators see something that says “protect the children” and they immediately think “well, of course we support that.” But this bill doesn’t protect children. It attacks free speech and privacy online in very insidious ways. Please call your Senators and ask them not to let this through.

Filed Under: debate, earn it, earn it act, encryption, free speech, lindsey graham, privacy, richard blumenthal, section 230, senate

from the read-the-fucking-room-guys dept

There’s kind of a lot going on in America right now — what with widespread protests about police violence (leading to more police violence), and we’re still in the middle of the largest pandemic in a century. You’d think some of those things would be priorities for Congress, but instead, Senate Republicans have decided that now is the time to pushing ahead with helping Hollywood by examining how to make copyright worse. Even the Washington Post is completely perplexed as to how this could possibly be a priority right now.

?I don?t think we have yet felt the urgency of acting immediately? on further help for those devastated by the pandemic, McConnell said two weeks ago. Now, with 100,000 dead and 40 million out of work, he still talks of waiting a month.

So what makes Senate Republicans feel the urgency of acting immediately? What would make them Take It to the Limit?

Don Henley would.

I Can?t Tell You Why.

Actually, I can. The Eagles singer and drummer has been summoned by the Senate Judiciary subcommittee to testify Tuesday about the functioning of the Digital Millennium Copyright Act?s ?Notice-And-Takedown System.?

Henley, of course, is one of the wealthiest musicians in history, considering that he was a founding member of the Eagles, a band that literally has both the best selling album of all time AND the third best selling album of all time. Yes, in the top 3 best selling albums of all time, Don Henley’s on two of ’em.

If Don Henley is hurting for money, I’m going to suggest that it ain’t copyright that’s the problem. But this is the same Don Henley who has been attacking the internet for at least a decade, when he whined that it was all copyright infringement that anyone might take any of his songs and build on it in doing a remix or a mashup.

Henley blasted all unauthorized uses of his music, whether by politicians or just amateurs making remixes, mash-ups, and similar unlicensed uses on sites like YouTube. “I don’t condone it,” he said of such practices. “I’m vehemently opposed to it. Not because I don’t like parodies or satires of my work. But it’s simply a violation of U.S. copyright law.”

[….]

“People in my age group generally don’t like it. Songs are difficult to write; some of them take years to write. To have them used as toys or playthings is frustrating.”

Really, none of this makes any sense. You’d think (1) that right now wouldn’t be the time to focus on copyright, (2) that Republican Senators wouldn’t be in such a rush to aid Hollywood (which is generally not known for its support of the GOP), and (3) that of all the possible people to testify, they’d pick a rich rocker who’s big complaint about the internet is that it allows the kids these days to be creative. But for whatever reason, this is what the Republican leadership in the Senate feels is most important right now. Helping super rich rockers who dislike the kids get even richer at the expense of the public.

Filed Under: copyright, dmca, dmca 512, don henley, internet, mitch mcconnell, notice and takedown, pandemic, protests, senate

Senate Passes Surveillance Reauthorization Bill 80-16 — One Stripped Of Almost All Of Its Reforms

from the but-at-least-we-get-an-official-burial-of-the-bulk-phone-records-program dept

The Senate voted today to give us five more years of pretty much unaltered surveillance. The reauthorization of key spy powers is back on again, after Congressional inaction ran head-on into a global pandemic, allowing these to (briefly) expire. Not that this temporary expiration resulted in any less surveillance. And with this overwhelming vote in favor of resumed spying, it will probably only be a matter of days before a consolidated bill ends up on Trump’s desk. Despite his continual agitation against the “Deep State,” Trump is expected to give these powers his official blessing.

The Senate on Thursday overwhelmingly voted to reauthorize three national security surveillance authorities that have been expired since March.

The chamber voted 80-16 to extend the surveillance authorities under the Foreign Intelligence Surveillance Act.

The vote occurred after the Senate adopted a bipartisan amendment on Wednesday from Republican Sen. Mike Lee of Utah and Democratic Sen. Patrick Leahy of Vermont to provide additional legal protections in the FISA court for targets of surveillance warrants. The Senate’s amendment means the House will have to pass the new version of the legislation before it goes to the President’s desk.

The additional protections in the amendment would expand outside review of FISA surveillance cases. The USA Freedom Act allowed for the appointment of amicus curiae (outside, neutral advocates) at the court’s discretion. This amendment makes it a bit more mandatory, requiring the court to appoint one in any case involving “sensitive investigative matters.” That covers a lot of ground, but the amendment was written with the targeting of US persons in mind.

More importantly, it grants the amicus the power to raise any issue at any time and gives them access to all pertinent court documents, including underlying warrant applications.

Unfortunately, this bill moved forward without stronger surveillance reforms, including an amendment written by Senators Ron Wyden and Steve Daines that would have added a warrant requirement for the collection of internet browsing history and search data. This fell one vote shy of passing — something that any of the four missing senators that supported the amendment could have fixed by showing up and voting.

The Senate’s approved version reauthorizes authorities affected by 2015’s USA Freedom Act and parts of Section 215, like the infamous “roving wiretap” authority and the apparently never-used “lone wolf” provision that allows for the surveillance of people with no known ties to any terrorist group.

If it remains intact before passage, the bill would also formally end the NSA’s bulk phone data collection. The NSA voluntarily retired this after it was unable to avoid over-collection even while having to approach telcos directly with reasonable suspicion-supported requests for call records. Having gone from mostly useless to completely useless, the NSA decided this collection was no longer worth the compliance headache. For whatever reason, the FBI fought to keep this zombie program alive, claiming that the slim possibility of it being useful as some undetermined point in the future justified its continued existence.

We’ll have to see what survives the House’s second pass before it heads to Trump for a signature. That’s the version that’s had plenty of input from Bill Barr, who apparently wants as much surveillance power as possible even as the Commander-in-Chief complains about the abuse of these powers to target him and his.

Filed Under: fisa, patriot act, reauthorization, senate, surveillance