The Senate’s twin threats to online speech and security

Publication Type: 
Academic Writing
Publication Date: 
July 13, 2020

This is a cruel summer. The COVID-19 toll increases daily. Millions are out of work and risk losing their homes. The senseless loss of Black lives continues despite weeks of mass protests. Behind it all lurks the climate crisis. Amid these pressing issues, members of the Senate have decided to spend their time creating their own threat to Americans: legislation that would make Americans less safe, while simultaneously harming online speech, privacy, and encryption.

This threat comes in the form of two bills: the Eliminating Abusive and Rampant Neglect of Interactive Technologies Act, which the Senate Judiciary Committee unanimously voted to advance out of committee last week; and the Lawful Access to Encrypted Data Act, which was introduced the prior week by Sen. Lindsey Graham, the South Carolina Republican, who is also a co-sponsor of EARN IT. The EARN IT Act is described as an attempt to crack down on child sexual abuse material online but ends up drastically undermining user security and privacy in the process. The LAED Act, meanwhile, represents an attempt to outright ban strong encryption technology.

Taken together, the two measures represent a serious threat to online security, and the LAED Act’s outlandishness, timing, and lack of bipartisan support have been interpreted to mean that it is a go-nowhere bill intended to make EARN IT look reasonable by comparison. That’s no excuse. The LAED Act doesn’t make the EARN IT Act OK. Both of these bills threaten core freedoms online, and moving an attack on encryption from one bill to another is not progress.

LAED is no less than a nuclear assault on encryption in the United States, and, by extension, on security, privacy, and speech online. By modifying the legal framework for search warrants and electronic surveillance, LAED would make encryption backdoors mandatory. It would ban providers in the U.S. from offering end-to-end encryption, encrypted devices that cannot be unlocked for law enforcement, and indeed any encryption that does not build in a means of decrypting data for the police. Security researchers and civil-rights advocates have long feared the introduction of such a radical bill, and now it’s finally here.

But the hard-line approach of the LAED Act is no reason to endorse the EARN IT Act, which could result in many of the same consequences as the LAED Act, if in a more roundabout way.

Read the full piece at Brookings.