Login | June 01, 2020

Encryption fight in Congress

RICHARD WEINER
Technology for Lawyers

Published: May 8, 2020

Encryption is having its moment in Congress. Particularly end-to-end encryption.
On one side are privacy advocates, including the big tech companies (which are now privacy advocates, apparently, since this doesn’t involve selling your data).
On the other side is Congress and law enforcement, who want to be able to get into secure messaging and other apps through built-in back doors in pursuit of child porn.
As reported by the Washington Post, at issue is the bipartisan EARN IT Act, “which would strip tech companies of liability protections when their users share child pornography and other materials that exploit children. It would also establish a 19-member commission to create rules companies can follow to earn back that liability shield.”
Tech companies say that the proposed legislation is a way of getting law enforcement control over user data and of weakening protections that they have under Section 230 of the Communications Decency Act. That section states that platforms have no legal liability for whatever users post to their accounts.
Section 230 is a big deal—it is why Facebook isn’t a party to a libel case for a Facebook post.
But Sen. Richard Blumenthal told the Post that Section 230 is a relic of a bygone era and that it needs to be relooked at. He told the Post that he doesn’t want to look back in 15 years and see that Congress failed to protect children from online predators when they had the chance.
The new law would create a 19-person commission to create rules that tech platforms could follow to earn back their liability shield, including any new encryption rules. Any new regs would require the vote of 14 of the members, who would be chosen from an array of stakeholders and government officials.
Tech folks say that this is a backdoor attempt to weaken encryption that will actually make society less safe, not more safe, and that the government is using children to disguise what they are really trying to do.
All of this is within the context of a Senate Judiciary Committee hearing, so it’ll be a while before it gets out to the public. Stay tuned!


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