How EARN IT Could Give Abusers A Get Out Of Jail Free Card: By Making Evidence Inadmissible
from the bad-ideas dept
In admitting that his EARN IT Act is really about attacking encryption, Senator Richard Blumenthal said he wouldn't agree to keep encryption out of the bill because he worried that it would give companies a "get-out-of-jail-free card." That's nonsense for multiple reasons, which we explained in that post, but the fact is Blumenthal's bill actually does contain a "get-out-of-jail-free card" that is incredibly damaging. It's one that child sexual abusers may be able to use to suppress any evidence collected against them and which would not just undermine the very point of EARN IT Act, but would make it that much harder to do the thing that needs to be done: stopping such abusers.
We touched on this a little bit in our earlier post about the mistakes senators made during the markup, but it's a little wonky, so it deserves a deeper exploration. Here's a good short description from Kir Nuthi in Slate:
As it stands, most companies that host online content voluntarily turn over huge amounts of potential evidence of child abuse to the National Center for Missing and Exploited Children. Because private companies search for this evidence voluntarily, courts have held that the searches are not subject to the Fourth Amendment. But the EARN IT Actthreatens to disrupt this relationship by using the threat of endless litigation and criminal prosecution to strongly pressure private companies to proactively search for illegal material. Thanks to how the EARN IT Act amends Section 230, companies are more exposed to civil and criminal liability if they don’t follow the government’s “or else” threat and search for child sexual abuse material.
Currently, tech platforms have an obligation to report but not search for suspected instances of child sexual abuse material. That’s why searches today are constitutional—they’re conducted voluntarily. By encouraging and pressuring private sector searches, the EARN IT Act casts doubt on every search—they’d no longer be voluntary. Thus, the Fourth Amendment would apply, and evidence collected without a warrant—all child sexual abuse material in this case, since private parties can’t get a warrant—would be at risk of exclusion from trial.
The Supreme Court has long held that when the government “encourages” private parties to search for evidence, those private parties become “government agents” subject to the Fourth Amendment and its warrant requirement. That means any evidence these companies collect could be ruled inadmissible in criminal trials against child predators because the evidence was procured unconstitutionally.
Put simply, thanks to the EARN IT Act, under theExclusionary Rule, defense attorneys could argue that evidence was collected in violation of the Fourth Amendment and should be excluded from trial. As a result, the bill could lead to fewer convictions of child predators, not more.
In short: under the current setup, companies can search for child sexual abuse material (CSAM) and if they find it they must report it to NCMEC (and remove it). This is good and useful and helps prevent the further spread. But under the 4th Amendment, if the government is mandating a search, then it would require a warrant before the search can happen. So, if the government mandates the search -- and as various senators made clear in both their "myths and facts" document, and in the markup hearing, that's exactly what they intend this bill to do -- then anyone who is charged with evidence found via such a search would have an unfortunately strong response that the evidence was collected under state action, and, as such in order to survive a 4th Amendment review, would require a warrant.
In other words, it hands terrible criminals -- those involved in the abuse of children -- a way to suppress the evidence used against them on 4th Amendment grounds. Under such a regime that would make it more difficult to prosecute actual criminals. But, even worse, it would then create a perverse and dangerous precedent in which companies would be greatly encouraged not to use basic scanning tools to find, remove, and report CSAM content, because in doing so, it would no longer be usable in prosecutions.
So the failure by senators to understand how the 4th Amendment works, means that EARN IT (beyond all its other problems) creates a constitutional mess that is, effectively (and almost literally) a "get-out-of-jail-free card" for criminals.
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Filed Under: 4th amendment, csam, earn it, evidence, richard blumenthal, state action, suppression of evidence
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Its not a good description, because it uses the same stupid language the twitter is a government agency bros use. The air quotes tell reasonable readers that encourage is somewhat sarcastic, and contextually it is talking about laws which coercively claim to not require action while place massive liability for failure to act. But this summary is going to be cited for years and I'd not have chosen to rely on a summary that used sarcasm.
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I love how “Earn It” is so stupidly, fundamentally broken that not even Koby’s defending it.
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To be pessimistic: This only holds if we have any courts left that have any idea how the fourth amendment works (and the balls to uphold it).
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Great if you want more of that, not so much if not
I've said it before and I will keep saying it so long as there is anyone crazy, corrupt and/or deluded enough to support the bill:
A vote for EARN IT is a vote for CSAM.
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There is a difference between we would like you to do something, and do it or go to jail. It is the latter which turns encouragement into government mandated action, and hence subject to constitutional rules.
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Perhaps, but the fact remains that whether a judge ultimately buys the legal argument or not it's still one that the defendants currently don't have and that EARN IT would give to them, and for a bill touted as meant to help exploited children having the greatest beneficiaries of it being those doing the exploiting is worth pointing out.
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If youd read my comment, yeah, i get that. The issue for me was the "good summary" which used sarcastic air quotes as part of that very key distinction. I didn't think that distinction was well served by the sarcastic air quotes and implication, rather than stating what you did.
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"...child sexual abusers may be able to use to suppress any evidence collected against them..."
I wonder if that is intentional on Blumenthal's part? Senators seem to have a habit of exempting themselves from laws they pass...
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Might be a carveout for a different group. Does anyone know how much input the Catholic Church had in putting this bill together?
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why is it that those in charge of a country like the USA, a country that is supposed to be so big on freedom and privacy (but gives all security forces whatever access they want, to whomsoever they want, other than those in high places) do whatever they can to fuck things up, as much as possible, just so they can say 'i was responsible for getting yet another fucked up law enacted that screws the people over, but assists the bad element in our society as much as possible? it never makes any sense to me when there are so many things that could be done, that would aid the country and population so much, that this sort of shit mix gets done instead! it can only be because of certain areas throwing money at certain people and those certain people dont give a fuck about the people they are supposed to represent or the job they are supposed to be doing!!
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It’s the “I must be seen doing something” mindset. Doing something, even something potentially harmful, is better to a politician than doing nothing.
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It's that, or it's a Trojan Horse law and the payload is what they're after.
The EARN IT Act...To establish a National Commission on Online Child Sexual Exploitation Prevention, and for other purposes.
It's the "and for other purposes" part this law is about. They know it won't stop CSAM but they want to make it difficult to oppose because, "Think of the children".
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I wonder if that "get out of jail free card" was introduced deliberately so that those who wrote the bill can eventually deploy it in their own defense. If there's smoke, there's likely a fire.
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Won't happen.
This Supreme court has repeatedly shown that it can disregard precedent and the plain language of the Constitution.
It will come up with some tortured explanation why evidence the government forces third parties to gather doesn't need a warrant to be admissible.
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I'd love a weigh-in from someone at Tor
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Or just dry ice to cover up their mates smoke
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Cant they just outlaw money and make it infeasible to be a criminal
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You go america.
Treat tech like it’s a 20 year war in the Mideast.
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I see no reason to give them the benefit of the doubt so I'd say it's perfectly reasonable to assume that they're either trying to create that loophole for their own future use or future use of someone close to them.
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Its been so long since Congress has done anything useful, they've forgotten how.
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Yeah, everyone knows that anyone with a religion is a child molester. Unless they're an acolyte of the Greek pantheon, because those guys are fucking awesomesauce.
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