The Top Ten Mistakes Senators Made During Today's EARN IT Markup
from the getting-everything-wrong dept
Today, the Senate Judiciary Committee unanimously approved the EARN IT Act and sent that legislation to the Senate floor. As drafted, the bill will be a disaster. Only by monitoring what users communicate could tech services avoid vast new liability, and only by abandoning, or compromising, end-to-end encryption, could they implement such monitoring. Thus, the bill poses a dire threat to the privacy, security and safety of law-abiding Internet users around the world, especially those whose lives depend on having messaging tools that governments cannot crack. Aiding such dissidents is precisely why it was the U.S. government that initially funded the development of the end-to-end encryption (E2EE) now found in Signal, Whatsapp and other such tools. Even worse, the bill will do the opposite of what it claims: instead of helping law enforcement crack down on child sexual abuse material (CSAM), the bill will actually help the most odious criminals walk free.
As with the July 2020 markup of the last Congress’s version of this bill, the vote was unanimous. This time, no amendments were adopted; indeed, none were even put up for a vote. We knew there wouldn’t be much time for discussion because Sen. Dick Durbin kicked off the discussion by noting that Sen. Lindsey Graham would have to leave soon for a floor vote.
The Committee didn’t bother holding a hearing on the bill before rushing it to markup. The one and only hearing on the bill occurred just six days after its introduction back in March 2020. The Committee thereafter made major (but largely cosmetic) changes to the bill, leaving its Members more confused than ever about what the bill actually does. Today’s markup was a singular low-point in the history of what is supposed to be one of the most serious bodies in Congress. It showed that there is nothing remotely judicious about the Judiciary Committee; that most of its members have little understanding of the Internet and even less of how the, ahem, judiciary actually works; and, saddest of all, that they simply do not care.
Here are the top ten legal and technical mistakes the Committee made today.
Mistake #1: “Encryption Is not Threatened by This Bill”
Strong encryption is essential to online life today. It protects our commerce and our communications from the prying eyes of criminals, hostile authorian regimes and other malicious actors.
Sen. Richard Blumenthal called encryption a “red herring,” relying on his work with Sen. Leahy’s office to implement language from his 2020 amendment to the previous version of EARN IT (even as he admitted to a reporter that encryption was a target). Leahy’s 2020 amendment aimed to preserve companies’ ability to offer secure encryption in their products by providing that a company could not be found in violation of the law because it utilized secure encryption, doesn’t have the ability to decrypt communications, or fails to undermine the security of their encryption (for example, by building in a backdoor for use by law enforcement).
But while the 2022 EARN IT Act contains the same list of protected activities, the authors snuck in new language that undermines that very protection. This version of the bill says that those activities can’t be an independent basis of liability, but that courts can consider them as evidence while proving the civil and criminal claims permitted by the bill’s provisions. That’s a big deal. EARN IT opens the door to liability under an enormous number of state civil and criminal laws, some of which require (or could require, if state legislatures so choose) a showing that a company was only reckless in its actions—a far lower showing than federal law’s requirement that a defendant have acted “knowingly.” If a court can consider the use of encryption, or failure to create security flaws in that encryption, as evidence that a company was “reckless,” it is effectively the same as imposing liability for encryption itself. No sane company would take the chance of being found liable for transmitting CSAM; they’ll just stop offering strong encryption instead.
Mistake #2: The Bill’s Sponsors Readily Conceded that EARN IT Would Coerce Monitoring for CSAM
EARN IT’s sponsors repeatedly complained that tech companies aren’t doing enough to monitor for CSAM—and that their goal was to force them to do more. As Sen. Blumenthal noted, free software (PhotoDNA) makes it easy to detect CSAM, and it’s simply outrageous that some sites aren’t even using it. He didn’t get specific but we will: both Parler and Gettr, the alternative social networks favored by the MAGA right, have refused to use PhotoDNA. When asked about it, Parler’s COO told The Washington Post: “I don’t look for that content, so why should I know it exists?" The Stanford Internet Observatory’s David Thiel responded:
This, frankly, is just reckless. You cannot run a social media site, particularly one targeted to include content forbidden from mainstream platforms, solely with voluntary flagging. Implementing PhotoDNA to prevent CEI is the bare minimum for a site allowing image uploads. 9/10
— David Thiel (@elegant_wallaby) August 12, 2021
We agree completely—morally. So why, as Berin asked when EARN IT was first introduced, doesn’t Congress just directly mandate the use of such easy filtering tools? The answer lies in understanding why Parler and Gettr can get away with this today. Back in 2008, Congress required tech companies that become aware of CSAM to report it immediately to NCMEC, the quasi-governmental clearinghouse that administers the database of CSAM hashes used by PhotoDNA to identify known CSAM. Instead of requiring companies to monitor for CSAM, Congress said exactly the opposite: nothing in 18 U.S.C. § 2258A “shall be construed to require a provider to monitor [for CSAM].”
Why? Was Congress soft on child predators back then? Obviously not. Just the opposite: they understood that requiring tech companies to conduct searches for CSAM would make them state actors subject to the Fourth Amendment’s warrant requirement—and they didn’t want to jeopardize criminal prosecutions.
Conceding that the purpose of EARN IT Act is to coerce searches for CSAM is a mistake, a colossal one, because it invites courts to rule that searching wasn’t voluntary.
Mistake #3: The Leahy Amendment Alone Won’t Protect Privacy & Security, or Avoid Triggering the Fourth Amendment
While Sen. Leahy’s 2020 amendment was a positive step towards protecting the privacy and security of online communications, and Lee’s proposal today to revive it is welcome, it was always an incomplete solution. While it protected companies against liability for offering encryption or failing to undermine the security of their encryption, it did not protect the refusal to conduct monitoring of user communications. A company offering E2EE products might still be coerced into compromising the security of its devices by scanning user communications “client-side” (i.e., on the device) prior to encrypting sent communications or after decrypting received communications.
Apple recently proposed such a technology for such client-side scanning, raising concerns from privacy advocates and civil society groups. For its part, Apple assured that safeguards would limit use of the system to known CSAM to prevent the capability from being abused by foreign governments or rogue actors. But the capacity to conduct such surveillance presents an inherent risk of being exploited by malicious actors. Some companies may be able to successfully safeguard such surveillance architecture from misuse or exploitation. However, resources and approaches will vary across companies, and it is a virtual certainty that not all of them will be successful. And if done under coercion, create a risk that such efforts will be ruled state action requiring a warrant under the Fourth Amendment.
Our letter to the Committee proposes an easy way to expand the Leahy amendment to ensure that companies won’t be held liable for not monitoring user content: borrow language directly from Section 2258A(f).
Mistake #4: EARN IT’s Sponsors Just Don’t Understand the Fourth Amendment Problem
Sen. Blumenthal insisted, repeatedly, that EARN IT contained no explicit requirement not to use encryption. The original version of the bill would, indeed, have allowed a commission to develop “best practices” that would be “required” as conditions of “earning” back the Section 230 immunity tech companies need to operate—hence the bill’s name. But dropping that concept didn’t really make the bill less coercive because the commission and its recommendations were always a sideshow. The bill has always coerced monitoring of user communications—and, to do that, the abandonment or bypassing of strong encryption—indirectly, through the threat of vast legal liability for not doing enough to stop the spread of CSAM.
Blumenthal simply misunderstands how the courts assess whether a company is conducting unconstitutional warrantless searches as a “government actor.” “Even when a search is not required by law, … if a statute or regulation so strongly encourages a private party to conduct a search that the search is not ‘primarily the result of private initiative,’ then the Fourth Amendment applies.” U.S. v. Stevenson, 727 F.3d 826, 829 (8th Cir. 2013) (quoting Skinner v. Railway Labor Executives' Assn, 489 U.S. 602, 615 (1989)). In that case, the court found that AOL was not a government actor because it “began using the filtering process for business reasons: to detect files that threaten the operation of AOL's network, like malware and spam, as well as files containing what the affidavit describes as “reputational” threats, like images depicting child pornography.” AOL insisted that it “operate[d] its file-scanning program independently of any government program designed to identify either sex-offenders or images of child pornography, and the government never asked AOL to scan Stevenson's e-mail.” Id. By contrast, every time EARN IT’s supporters explain their bill, they make clear that they intend to force companies to search user communications in ways they’re not doing today.
Mistake #2 Again: EARN IT’s Sponsors Make Clear that Coercion Is the Point
In his opening remarks today, Sen. Graham didn’t hide the ball:
"Our goal is to tell the social media companies 'get involved and stop this crap. And if you don't take responsibility for what's on your platform, then Section 230 will not be there for you.' And it's never going to end until we change the game."
Sen. Chris Coons added that he is “hopeful that this will send a strong signal that technology companies … need to do more.” And so on and so forth.
If they had any idea what they were doing, if they understood the Fourth Amendment issue, these Senators would never admit that they’re using liability as a cudgel to force companies to take affirmative steps to combat CSAM. By making intentions unmistakable, they’ve given the most vile criminals exactly what they need to to challenge the admissibility of CSAM evidence resulting from companies “getting involved” and “doing more.” Though some companies, concerned with negative publicity, may tell courts that they conducted searches of user communications for “business reasons,” we know what defendants will argue: the companies’ “business reason” is avoiding the wide, loose liability that EARN IT subjected them to. EARN IT’s sponsors said so.
Mistake #5: EARN IT’s Sponsors Misunderstanding How Liability Would Work
Except for Sen. Mike Lee, no one on the Committee seemed to understand what kind of liability rolling back Section 230 immunity, as EARN IT does, would create. Sen. Blumenthal repeatedly claimed that the bill requires actual knowledge. One of the bill’s amendments (the new Section 230(e)(6)(A)) would, indeed, require actual knowledge by enabling civil claims under 18 U.S.C. § 2255 “if the conduct underlying the claim constitutes a violation of section 2252 or section 2252A,” both of which contain knowledge requirements. This amendment is certainly an improvement over the original version of EARN IT, which would have explicitly allowed 2255 claims under a recklessness standard.
But the two other changes to Section 230 clearly don’t require knowledge. As Sen. Lee pointed out today, a church could be sued, or even prosecuted, simply because someone posted CSAM on its bulletin board. Multiple existing state laws already create liability based on something less than actual knowledge of CSAM. As Lee noted, a state could pass a law creating strict liability for hosting CSAM. Allowing states to hold websites liable for recklessness (or even less) while claiming that the bill requires actual knowledge is simply dishonest. All these less-than-knowledge standards will have the same result: coercing sites into monitoring user communications, and into abandoning strong encryption as an obstacle to such monitoring.
Blumenthal made it clear that this is precisely what he intends, saying: “Other states may wish to follow [those using the “recklessness” standard]. As Justice Brandeis said, states are the laboratories of democracy … and as a former state attorney general I welcome states using that flexibility. I would be loath to straightjacket them in their adoption of different standards.”
Mistake #6: “This Is a Criminal statute, This Is Not Civil Liability”
So said Sen. Lindsey Graham, apparently forgetting what his own bill says. Sen. Dianne Feinstein added her own misunderstanding, saying that she “didn’t know that there was a blanket immunity in this area of the law.” But if either of those statements were true, the EARN IT Act wouldn’t really do much at all. Section 230 has always explicitly carved out federal criminal law from its immunities; companies can already be charged for knowing distribution of child sexual abuse material (CSAM) or child sexual exploitation (CSE) under federal criminal statutes. Indeed, Backpage and its founders were criminally prosecuted even without SESTA’s 2017 changes to Section 230. If the federal government needs assistance in enforcing those laws, it could adopt Sen. Mike Lee’s amendment to permit state criminal prosecutions when the conduct would constitute a violation of federal law. Better yet, the Attorney General could use an existing federal law (28 U.S.C. § 543) to deputize state, local, and tribal prosecutors as “special attorneys” empowered to prosecute violations of federal law. Why no AG has bothered to do so yet is unclear.
What is clear is that EARN IT isn’t just about criminal law. EARN IT expressly carves out civil claims under certain federal statutes, and also under whatever state laws arguably relate to “the advertisement, promotion, presentation, distribution, or solicitation of child sexual abuse material” as defined by federal law. Those laws can and do vary, not only with respect to the substance of what is prohibited, but also the mental state required for liability. This expansive breadth of potential civil liability is part of what makes this bill so dangerous in the first place.
Mistake #7: “If They Can Censor Conservatives, They Can Stop CSAM!”
As at the 2020 markup, Sen. Lee seemed to understand most clearly how EARN IT would work, the Fourth Amendment problems it raises, and how to fix at least some of them. A former Supreme Court Clerk, Lee has a sharp legal mind, but he seems to misunderstand much of how the bill would work in practice, and how content moderation works more generally.
Lee complained that, if Big Tech companies can be so aggressive in “censoring” speech they don’t like, surely they can do the same for CSAM. He’s mixing apples and oranges in two ways. First, CSAM is the digital equivalent of radioactive waste: if a platform gains knowledge of it, it must take it down immediately and report it to NCMEC, and faces stiff criminal penalties if it doesn’t. And while “free speech” platforms like Parler and Gettr refuse to proactively monitor for CSAM (as discussed below), every mainstream service goes out of its way to stamp out CSAM on unencrypted service. Like AOL in the Stevenson case, they do so for business and reputational reasons.
By contrast no website even tries to block all “conservative” speech; rather, mainstream platforms must make difficult judgment calls about taking down politically charged content, such as Trump’s account only after he incited an insurrection in an attempted coup and misinformation about the 2020 election being stolen. Republicans are mad about where tech companies draw such lines.
Second, social media platforms can only moderate content that they can monitor. Signal can’t moderate user content and that is precisely the point: end-to-end-encryption means that no one other than the parties to a communication can see it. Unlike normal communications, which may be protected by lesser forms of “encryption,” the provider isn’t standing in the middle of the communication and it doesn’t have the keys to unlock the messages that it is passing back and forth. Yes, some users will abuse E2EE to share CSAM, but the alternative is to ban it for everyone. There simply isn’t a middle ground.
There may indeed be more that some tech companies could do about content they can see—both public content like social media posts and private content like messages (protected by something less than E2EE). But their being aggressive about, say, misinformation about COVID or the 2020 election has nothing whatsoever to do with the cold, hard reality that they can’t moderate content protected by strong encryption.
It’s hard to tell whether Lee understands these distinctions. Maybe not. Maybe he’s just looking to wave the bloody shirt of “censorship” again. Maybe he’s saying the same thing everyone else is saying, essentially: “Ah, yes, but if only Facebook, Apple and Google didn’t use end-to-end encryption for their messaging services, then they could monitor those for CSAM just like they monitor and moderate other content!” Proposing to amend the bill to require actual knowledge under both state and federal law suggests he doesn’t want this result, but who knows?
Mistake #8: Assuming the Fourth Amendment Won’t Require Warrants If It Applies
Visibility to the provider relates to one important legal distinction not discussed at all today—but that may well explain why the bill’s sponsors don’t seem to care about Fourth Amendment concerns. It’s an argument Senate staffers have used to defend the bill since its introduction. Even if compulsion through vast legal liability did make tech companies government actors, the Fourth Amendment requires a warrant only for searches of material for which users have a reasonable expectation of privacy. Kyllo v. United States, 533 U.S. 27, 33 (2001); see Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). Courts long held that users had no such expectations for digital messages like email held by third parties.
But that began to change in 2010. If searches of emails trigger the Fourth Amendment—and U.S. v. Warshak, 631 F.3d 266 (6th Cir. 2010) said they do—searches of private messaging certainly would. The entire purpose of E2EE is to give users rock-solid expectations of privacy in their communications. More recently, the Supreme Court has said that, “given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user's claim to Fourth Amendment protection.” Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018). These cases draw the line Sen. Lee is missing: no, of course users don’t have reasonable expectations of privacy in public social media posts—which is what he’s talking about when he points to “censorship” of conservative speech. EARN IT could avoid the Fourth Amendment by focusing on content providers can see, but it doesn’t, because it’s intended to force companies to be able to see all user communications.
Mistake #9: What They didn’t Discuss: Anonymous Speech
The Committee didn’t discuss how EARN IT would affect speech protected by the First Amendment. No, of course CSAM isn’t protected speech, but the bill would affect lawful speech by law-abiding citizens—primarily by restricting anonymous speech. Critically, EARN IT doesn’t just create liability for trafficking in CSAM. The bill also creates liability for failing to stop communications that “solicit” or “promote” CSAM. Software like PhotoDNA can flag CSAM (by matching cryptographic hashes to known images in NCMEC’s database) but identifying “solicitation” or “promotion” is infinitely more complicated. Every flirtatious conversation between two adult users could be “solicitation” of CSAM—or it might be two adults doing adult things. (Adults sext each other—a lot. Get over it!) But “on the Internet, nobody knows you’re a dog”—and there’s no sure way to distinguish between adults and children.
The federal government tried to do just that in the Communications Decency Act (CDA) of 1996 (nearly all of which, except Section 230, was struck down) and the Child Online Protection Act (COPA) of 1998. Both laws were struck down as infringing on the First Amendment right to accessing lawful content anonymously. EARN IT accomplishes much the same thing indirectly, the same way it attacks encryption: basing liability on anything less than knowledge means you can be sued for not actively monitoring, or for not age-verifying users, especially when the risks are particularly high (such as when you “should have known” you were dealing with minor users).
Indeed, EARN IT is even more constitutionally suspect. At least COPA focused on content deemed “harmful to minors.” Instead of requiring age-gating for sites that offered porn and sex-related content (e.g., LGBTQ teen health), EARN IT would affect all users of private communications services, regardless of the nature of the content they access or exchange. Again, the point of E2EE is that the service provider has no way of knowing whether messages are innocent chatter or CSAM.
EARN IT could raise other novel First Amendment problems. Companies could be held liable not only for failing to age-verify all users—a clear First Amendment violation— but also for failing to bar minors from using E2EE services so that their communications can be monitored or failing to use client-side monitoring on minors’ devices, and even failing to segregate adults from minors so they can’t communicate with each other.
Without the Lee Amendment, EARN IT leaves states free to base liability on explicitly requiring age-verification or limits on what minors can do.
Mistake #10: Claiming the Bill Is “Narrowly Crafted”
If you’ve read this far, Sen. Blumenthal’s stubborn insistence that this bill is a “narrowly targeted approach” should make you laugh—or sigh. If he truly believes that, either he hasn’t adequately thought about what this bill really does or he’s so confident in his own genius that he can simply ignore the chorus of protest from civil liberties groups, privacy advocates, human rights activists, minority groups, and civil society—all of whom are saying that this bill is bad policy.
If he doesn’t truly believe what he’s saying, well… that’s another problem entirely.
Bonus Mistake!: A Postscript About the Real CSAM problem
Lee never mentioned that the only significant social media services that don’t take basic measures to identify and block CSAM are Parler, Gettr and other fringe sites celebrated by Republicans as “neutral public fora” for “free speech.” Has any Congressional Republican sent letters to these sites asking why they refuse to use PhotoDNA?
Instead, Lee did join Rep. Ken Buck in March 2021 to interrogate Apple about its decision to take down the Parler app. Answer: Parler hadn’t bothered setting any meaningful content moderation system. Only after Parler agreed to start doing some moderation of what appeared in its Apple app (but not its website) did Apple reinstate the app.
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Filed Under: 1st amendment, 4th amendment, chris coons, content moderation, csam, dianne feinstein, e2ee, earn it, encryption, lindsey graham, mike lee, monitoring, pat leahy, photodna, richard blumenthal, section 230
Reader Comments
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Do you have proof that parler/gettr don't take down csam? If not then claiming that isn't helpful, we need everyone opposed to earn it, not just the "good" people.
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"When asked about it, Parler’s COO told The Washington Post: “I don’t look for that content, so why should I know it exists?""
Go find that, then click the word told.
It is a hyperlink that will take you to a story where the CEO says he doesn't scan for it.
Then go apologize to the tree making air for you to breathe.
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Parlor’s CEO has explicitly stated in interviews that his company does not proactively search for CSAM. He has refused calls to implement PhotoDNA to combat CSAM. Parler’s CEO has stated that they don’t use automated filtering, and does not monitor the content on Parlor, relying on manual flagging. Amazon and Apple testified under oath that a lack of meaning content moderation, including limiting the spread of CSAM, is the reason Parlor was delisted from the app store and lost hosting on amazon web services, respectively. Parler’s CEO and parler’s legion of defenders stated at the time Parler just couldn’t keep up with the flood of abysive, illegal content.
There is absolutely CSAM on the platform, as there is anywhere idiots post evidence of their crimes (dubbed social media). parler explicitly refuses to use the tech designed to find known CSAM and remove it. And it does not have the moderation capacity to keep up with manually flagged CSAM. The result? CSAM stays up.
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The biggest mistake was green lighting this bill in the first place.
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So taking down CSAM is just like "censoring" conservatives.
It makes sense in the same way these assholes claimed that same sex marriage would lead to bestiality.
It is not so much censoring as doing the job Congress should be doing of censuring its members that can't tell the truth.
None of this they believe, they think, fuck you you are in Congress if your staff can't get you factual information get a new staff.
You aren't being censored, you're being told to stop shitting on someone elses dining room table. But you are demanding we let these fuckheads keep shitting on the able because free speech!!
Meanwhile you take another dog whistle & blow it claiming that "Big Tech" is pimping out kids by turning a blind eye to it... while ignoring your favored platform refuse to even look for it.
Either Congress is to stupid to understand these issues or they just don't care, trying to create "new" problems to keep them from having to address all of the real problem we are having in a nation where members of Congress still insist the election was stolen & the insurrection was just a trip to the zoo.
Stop screwing with everyone else, and get your own house & senate in order & learn what truth actually is before doign this sort of shit again.
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Side note...
HI ARI!!!!!!!!
Please to pet the puppers for me.
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Admirable work narrowing this down to just 11 mistakes!
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The lady doth protest too much, methinks.
Honestly, did anyone read the whole article? It's REALLY long.
If you can't summarize your points and make a persuasive argument, do you think making a LONGER argument makes you more credible?
Proof by exhaustion?
"Madam, how like you this play?"
Not much.
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Yes, because it wasn't particularly long.
Because context matters, that you are either too stupid or lazy to actually read and comprehend something is entirely a you-problem.
Only if you are someone so stupid and lazy that you can only handle information in itty bitty parts no longer than 160 characters.
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Sir, this is a Denny’s.
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So WTF is my Moon over Mihammy!?!?
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Have you seen how long the bill is?
If it was short, you'd complain there wasn't any explanation or evidence as to why these things are mistakes.
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Well, maybe I expressed my argument poorly, that could be.
I have a friend who is an attorney, and I once watched him argue a big case in front of a jury. He started with two pictures that looked really really similar, and just set up a visual presentation. Two large images that looked similar, before he started, he set them up. He gave the jury a chance to consider them before he spoke.
Then he started talking, and explained that sometimes things can look similar from a high level, but actually be very different. And then he showed the same pictures from a higher level of zoom, and you could see the difference easily - one was a local river, and one was the great wall of China.
His argument was that if you considered the details of the argument he was making (something about a patent) at a detailed level, you would see that there was a big difference between the patented invention and his client's product. Then he went forward to win his case.
In law, these are often called "hinge issues". Victory "hinges" on the answer to some simple question, like, "are these two things the same, or are they different?". It provides something for the jury to focus on while they come to a decision.
People are people, most people think in similar ways. What is it that the article is trying to say, in simple terms? Senators are stupid or corrupt? The writers are smarter than the lawmakers? Section 230 must be preserved? I see that the authors have spilled considerable ink over something, but if you can't summarize your argument concisely, maybe it's not a very good argument.
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Congressfolk have threatened to ban, or at least weaken, end-to-end encryption. They say they want to do this for the sake of fighting the scourge of CSAM. But the Congressfolk appear to misunderstand encryption technology and misrepresent their own arguments and motivations. As a result, their arguments for the passage of EARN IT are about as flimsy as a wet tissue.
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Well, your use of "flimsy as a wet tissue" is certainly a compelling argument, especially in your closing statement.
Fair to say your summary is: "their (lawmakers) arguments for (in favor of) the passage of EARN IT are weak".
That's an indirect attack on the bill itself, right? You want to focus on the arguments made in favor of the bill, but not the bill itself, is that right?
I would imagine that's quite a large amount of ground to cover, you don't want to limit that a little, or simplify it a little? OMG, there are a LOT of arguments, they are politicians and attorneys, after all. That's their vocation, to make arguments. Wow. You're saying ALL their arguments are weak? They don't have a single good argument?
If I can present a single good argument for the bill itself, would you then reconsider your position?
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You have little hope of doing what the Congressfolk couldn’t. But if you really believe you can put forth an argument based on logic from this reality instead of your own, Hamilton, at least try to do it without using your pathetic rhetorical gimmick.
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Well, it seems you have set for me an impossible task. When you say "this reality" I assume you mean "your reality".
I don't believe your reality and my reality intersect at all.
There is extensive written evidence that you are a flamboyant uneducated foul mouthed liar (your own posts, searchable).
There is no way to appeal to people like you. You don't have a reasoning system that can be appealed to, because of your deeply dishonest nature.
So, I guess that makes you correct, there is "no hope", but only for you.
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Sure there is: Present an argument that explains why EARN IT is a good bill without resorting to bullshit arguments and lame rhetorical gimmicks.
Your inability to debate anything with any actual motherfucking sincerity—everything is a joke to you, every word someone writes an opportunity for you to mock and belittle them for giving a shit—is your problem, not mine. Stop being a smarmy little shithead and give me an argument with some fucking shark-level teeth or fuck all the way off, Hamilton.
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Right. Flamboyant uneducated foul mouthed liar. You see the problem, right, "Stephen"?
No one cares to try to persuade you. That was over years ago.
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ha ha, you have no argument
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Right? Took STS three whole posts to break him completely and utterly.
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It takes some truly stunning dishonesty and stupidity to turn 'If I make a good argument will you consider it?' into a trap for the one asking only for that same person to walk right into it, but damn if they didn't somehow manage with flying colors.
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IOW your chickening out? Wow, that's TOTALLY unexpected.
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Man, Hamilton, when you're shilling for John Smith instead of Shiva Ayyadurai, that's one hell of a new low to sink to.
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I see that you have spilled considerable ink over something, but if you can't summarize your argument concisely, maybe it's not a very good argument.
See how that works...
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Funny, that's usually not the perspective you have when it comes to shilling for inventors on Techdirt. Typically you claim that someone else who owns a patent must always be given the maximum benefit of the doubt, even if the patented invention is never actually manufactured or resembles something that already exists as prior art. Which is why the suggestion that anyone might be considered a "patent troll" makes you wet your pants in self-righteous outrage.
And you think that this alleged "lawyer friend" of yours successfully defending a patent infringement case, using a flimsy claim that things that look similar might actually be different if you believe hard enough, is supposed to make you more credible? Hamilton, nobody is going to believe that you support defenses for people accused of patent infringement. That by itself doesn't pass the laugh test.
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Honestly, did anyone read the whole article? It's REALLY long.
With ease because it really isn't.
If you can't summarize your points and make a persuasive argument, do you think making a LONGER argument makes you more credible?
The bill threatens encryption which hundreds of millions in the US alone depend on by making having it a liability and will not only not combat CSAM it will make it worse by incentivizing platforms not to look and giving guilty parties a solid case to dismiss any evidence used against them thanks to the platforms being pressured into acting as arms of the state.
Short and simple enough for you?
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Well, I'm not sure. How does one "threaten" encryption? That doesn't really make any sense to me. Encryption is a mathematical process, you can't threaten a mathematical process. It can't hear your threats, or be intimidated by them, any more than you can "threaten" algebra.
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Intelligence isn’t a living thing either, but you’re doing a wonderful job of threatening to degrade everyone else’s intelligence with each of your posts.
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Don't be dense.
It threatens companies USE of encryption by saying while a basis for liability cannot SOLELY be it's use of encryption it still allows the company to effectively be held liable for deploying encryption if they can point to anything else.
Simply put, the bill HEAVILY discourages use of encryption by threatening potentially ruinous litigation.
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Thank you, I understand that a little better than the other comments.
I notice you also use the word "threatening", as did the other reply. That's what laws are, right? Threats. If a law doesn't threaten some sanction, then it's not a law, right? I'm not an attorney, but it seems that way to me.
Are you opposed to any laws in this area of encryption? I could understand that, maybe you see it as an individual liberty issue. Or are there some laws about encryption (like limiting export) that you like and some you don't? Is it a freedom issue that you are concerned about, or is there a business issue you are concerned about on behalf of someone else? Or do you represent a business or a collection of businesses that have some dog in this fight?
Sorry if I'm nosy, you don't have to answer if you don't want to, I don't want to intrude upon your privacy. But maybe you're happy to explain why you care, I can't know that in advance. I am pretty curious about the answer to "who actually cares?" about this issue to publish so MANY words.
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Do you practice being this smarmy and disingenuous, or does it come as naturally to you as it does to the average conservative lawmaker?
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Your questioning seems to indicate you can't think for yourself or draw logical conclusions. I guess your practice of being an asshole have caught up with you and rotted your brain.
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Said the guy spamming the comments with so MANY (and very stupid, no less) words.
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I suppose I could explain but given the article did so in multiple ways and that was too complex for you to understand(or you're just too lazy to read it) I suspect I'd just be wasting my time, but what the hell.
Encryption good. Bill bad. Bill make having encryption a liability. Bill therefore threaten encryption.
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If it doens't make sense to you, maybe you're not as clever as you try to make yourself sound. Who knew?
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Your literacy troubles are nobody else's fault.
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This idea that an argument is bad due to its length is really not the gotcha you think it is, especially seeing that in another post you claim that lawyers and politicians must know how to do their jobs and are therefore trustworthy. Lawyers and politicians are, by and large, not known for being succinct.
The reason why your arguments get rejected, along with similar arguments made in support of EARN IT, is because they're largely the same regurgitation of "We don't believe anyone who disagrees with us" and "big tech has made more profits than we like and they must pay handsomely, and/or engineer a coded solution that will magically figure out what is permitted and what isn't".
Also, here's a response to one specific plea you have: "If I can present a single good argument for the bill itself, would you then reconsider your position?" If you had a good argument to present in support of the bill, you'd have presented it instead of mocking your opponents for writing paragraphs longer than you had the patience for, and following that up with blind faith towards figures of authority that stimulate your nerves in the right way.
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He is a US senator, and that gives him a God like understanding of people and technology. (And this comment is nowhere near as sarcastic as it should be).
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It’s just a series of tubes.
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And, our Senators need those tubes shoved up their asses. Anything to drain the shit from their brains.
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And yet none of this actually stops anyone from exploiting and abusing children. Not socially, and not in the justice system.
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That's not what 'mistake' means
They're not mistakes if they're intentional lies or indifference towards the consequences.
Even worse, the bill will do the opposite of what it claims: instead of helping law enforcement crack down on child sexual abuse material (CSAM), the bill will actually help the most odious criminals walk free.
This is what people need to keep hammering away at. The proponents of the bill want to make it untouchable and impossible to challenge by framing it as a bill to help exploited children by going after CSAM so I say return the favor. Any time they pull that stunt point out that setting aside all the other very serious problems the bill will cause they are in fact voting for for child exploitation and CSAM, that a vote for EARN IT is a vote for CSAM and any politician who votes for it should be seen in that light.
FOSTA was touted as a way to combat sex trafficking and it just made things worse for everyone but the criminals, FOSTA 2.0 will be no different and that needs to be brought up constantly.
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Re: That's not what 'mistake' means
You could also add that NCMEC is underfunded and overwhelmed. The only thing the bill says is earmarking a yearly One Million Dollars to the DOJ for "IT improvements" which is small potatoes compared to Wyden's "Invest In Child Safety Act" would do and the DOJ hasn't been acting on the reports providers make.
None of this EARN IT fixes.
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So let's review what we learned today class.
We learned that Ghram and Blummental don't care if their bill ends up making it harder to stop CSAM and despite them saying it wasn't a scanning mandate, it effectively forces companies to do so and they admit that they're trying to make companies do what they cannot mandate which just adds more fuel to the 4A fire and that shit is gonna come up again and again in suppression motions. Good job.
We learned that after two years of denying it, Blumenthal gave up the ghost and admitted he was attacking encryption and saying the quiet part out loud.
We also learned that they don't care about actually saving children or providing more resources to actually go after proveyers of CSAM.
In short: Rather than providing more resources to NCMEC, hiring more investigators, or trying to help actually save abused children they have instead opted to use children as a shield to push through otherwise odious policy.
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Or put another way: The only problem they have with the exploitation of children is that they weren't the ones doing it.
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That is a truly disgusting comment, and you should apologize for it.
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go whine to the Pope about it
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You mean the attorney, popehat, or poophead, or something like that?
Are you suggesting that the comment from That One Guy is actual defamation that can be acted upon, and that poopy guy could litigate it?
What a terrible thing to say. I still can't believe that a post like that is not taken down. Wow. Horrible, reprehensible, awful, disgusting, dreadful, terrible, shocking, appalling and hideous. What a horrible place you have constructed here, where comments as terrible as this are allowed to be published and republished to the whole world.
There should be a law...
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You're the only one who's ever written anything even approaching defamatory here, Jhon.
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Hamilton's not John Smith, but funny you should mention that - John has professed a liking for stepping on the dicks of little boys. Copyright law's best and brightest, ladies and gentlemen.
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Nope, he means the head of the Catholic church whose members keep shuffeling their rapy priests around to new hunting grounds instead of punishing them.
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Your feigned outrage is as convincing as right-wing comedy is funny. Bravo!
https://www.youtube.com/watch?v=KSXKzPOcYDU
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Re: Re: Re: Re: Re: Sure sounds like it
Are you crying right now?
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Someone fetch me the flagellation whip of regret
Oh noes, I was critical of a bill and the people supporting it that will result in already exploited children(along with a bunch of other innocent people who depend upon encryption to protect their privacy and personal information) being worse off, however shall I live with myself.
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Re: Re: Re: AHEM
FUCK YOUR FEELINGS!
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Children's welfare issues
If we're actually interested in the welfare of kids, there is an immense list of things that could really improve US children's lives.
~ Universal children's healthcare is on the top of the list.
~ Making sure they get meals. We even begrudge them school lunches. We should stop doing that.
~ Making sure the parents are paid enough that they don't have to work / commute 60 hours. Being a latchkey kid figures largely into the basket case I am today. Let's not repeat the cycle across any more generations maybe?
Now, why is it that we have a tuckfun of CSAM from Russia (especially circa early 1990s)? The USSR failed, and the infrastructure collapsed, and the streets were lousy with six-year-old to tweens openly willing to do sex work for a meal. Curiously, the US knew about it but didn't send food, rather we sent reporters to create news stories about how awful it is.
Nowadays, Russian porn has a reputation like Swedish porn in the 70s, and not all adult talent is as old as they claim to be. Kinda like Tracy Lords. Tons of the stuff is still in distribution.
So one of the things the US can do to make sure kids aren't faking their age to use OnlyFans to do sex work is provide them alternatives like social safety nets. You know, welfare. Every welfare queen is someone not committing crimes to eat.
My point is, the whole premise of EARN IT is bullshit, as it was with FOSTA and SOPA. It's like calling a clearcutting bill The Healthy Forests Act
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Content removal is never completely transparent
You're operating off of the assumption that the people behind PhotoDNA are being completely truthful when they tell you that the software is only being used to detect child pornography and nothing else. The main engineer behind PhotoDNA, Hany Farid, has made it clear that his motivations behind the work he does is getting rid of both child pornography and "extremist content".
There really aren't any fundamental differences in the technical aspects of automated blocking of the two types of content, it's only a matter of the subject matter in question. And considering the number of people in positions of power and influence who consider any opinion with a hint of conservatism "extremist", it isn't hard to put 2 and 2 together and be made aware of the possibility that there may other things that PhotoDNA may be identifying and blocking. The motivation is there at least, straight from the horse's mouth. And other advocacy groups have brought attention to the fact that PhotoDNA has never been audited in any sense.
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Lower taxes? Deregulation perhaps?
And considering the number of people in positions of power and influence who consider any opinion with a hint of conservatism "extremist"
Gonna need a definition of 'conservatism' and an example of 'people in positions of power' having a problem with it there, because that's certainly news to me.
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What are their names? When have they expressed the position on conservative speech that you say they hold, and with what phrasing? What specific “conservative” opinions have they called “extremist”? What makes the opinions to which they refer exclusively “conservative”?
Be specific.
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Re: Content removal is never completely transparent
"both child pornography and "extremist content".
There really aren't any fundamental differences in the technical aspects of automated blocking of the two types of content"
LOL, no. Child porn is very well defined and easy to manage - there is no valid reason to be in possession of or be involved of the distribution of child porn. It's illegal no matter what excuses you have.
"Extremism" is much more wooly. Most of it falls squarely under the remit of free speech, and its nature changes depending on the audience. Some on the right are getting butthurt over extremism because they are acknowledging the history of slavery or that gay and trans people exist. Some on the left feel that certain types of political or racial rhetoric are leading to actual terrorist activities. Some of this is easily classified, but some is very much in the eye of the beholder, but they are extraordinary different on a number of fundamental levels.
"considering the number of people in positions of power and influence who consider any opinion with a hint of conservatism "extremist""
Name them. Then give examples of what innocent "conservative" thought has been labelled as "extremist". Hint: it's not the guys discussing tax reform and transport regulations.
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