[HN Gopher] The EARN IT act is back, and it's more dangerous tha...
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       The EARN IT act is back, and it's more dangerous than ever
        
       Author : grappler
       Score  : 187 points
       Date   : 2022-02-05 18:52 UTC (4 hours ago)
        
 (HTM) web link (cyberlaw.stanford.edu)
 (TXT) w3m dump (cyberlaw.stanford.edu)
        
       | prepend wrote:
       | I wish they would address real problems like arbitrary
       | enforcement of TOS that damages users with no recourse. There's
       | no regulation for what happens when Google or Facebook or
       | whatever deletes or blocks an account and provides no support.
       | 
       | Child abuse is serious, but not that common and this law will do
       | little to change that. The lack of a UCC-style law for big tech
       | platforms affects way more people.
       | 
       | This seems like BS that will squelch small players that can't
       | afford to comply. And consolidate more power into a few small
       | firms.
        
         | ridaj wrote:
         | > There's no regulation for what happens when Google or
         | Facebook or whatever deletes or blocks an account and provides
         | no support.
         | 
         | Yes there is, per the trade regulations you're entitled to a
         | refund
         | 
         | .
         | 
         | Wait
         | 
         | I'm only partly sarcastic. If you think you're entitled to
         | anything provided as a free service then the problem starts
         | there. Do I miss the days when ISPs provided email as part of
         | your subscription? Then made you pay for anything over 100 Mb?
         | Then held your email address hostage if you wanted to switch
         | providers? Hell no. But I also don't think government should
         | force anyone to provide services to me for free.
         | 
         | Edit: downvotes without replies do not help me understand where
         | this feeling of entitlement to a free service comes from;
         | insight would be appreciated.
        
           | bee_rider wrote:
           | The service isn't free, you pay for it with your personal
           | information. If they want to provide refunds by deleting our
           | information, that seems like a fair trade.
        
           | umbauk wrote:
           | Well one could argue Google and FB services are not free.
           | Those 2 companies are 2 of the most profitable, valuable
           | companies in the world. If they are providing their services
           | for free, how can that be? Our attention and information is
           | what they profit from, and that should not be undervalued.
           | They are certainly not providing these services to us out of
           | the goodness of their hearts.
        
             | c0balt wrote:
             | I wholeheartedly agree with your sentiment but I don't
             | think this will hold up in case of account deletions or
             | bans.
             | 
             | Let say your 'attention', using the service, is used to pay
             | for 'goods', account/ access to service.
             | 
             | How is the revenue derived fron 'attention'? By the
             | attention being spent on preselected content, e.g. ads,
             | that are choosen by the platform. One could argue that
             | revoking access to a service from the platform side is okay
             | since the attention is not being 'spent' after the removal
             | or ban.
             | 
             | It might be feasible to expect that services, like an email
             | account, are not taken away abitrarly but 'just because
             | it's profitable' is not a sound argument. Making yourself
             | dependent on a platform is not the problem of the platform.
        
         | fallingknife wrote:
         | Squelching small players is the intent. Large institutions are
         | easy to exert political control over. It's hard to exert
         | political control over masses of individuals. It benefits the
         | Republican party when you get your news from FOX. It benefits
         | the Democratic party when you get your news from CNN. It does
         | not benefit the Democratic or Republican party when any
         | individual can broadcast their views to millions of willing
         | listeners on a platform like Youtube. This is why you only ever
         | hear about "misinformation" coming from small time players.
         | When CNN/FOX et al. do it (which is constantly), they get a
         | free pass. Both parties share an interest in monopolizing
         | information flow to their followers, which is why they both
         | support this law.
        
       | cyberlurker wrote:
       | No matter your opinion on the issue, the firearm lobby would
       | probably serve as an effective model for fighting legislation
       | like this on a long term basis.
        
         | bpodgursky wrote:
         | It would require people willing to be single-issue voters, the
         | way many are on abortion or firearms.
         | 
         | Would anyone here switch party votes to a candidate who sided
         | their way on tech privacy -- even if they disagreed on other
         | core principles like abortion, gun rights, religion in schools,
         | etc?
         | 
         | Maybe a few, but I'm not convinced many.
        
         | KerrAvon wrote:
         | The second amendment, like abortion, is a political wedge issue
         | used by politicians to wield against their opponents. You're
         | not going to replicate that with issues requiring more nuance
         | and that cannot be used as emotional cudgels.
        
       | jimbob45 wrote:
       | Graham (R-SC)
       | 
       | Blumenthal (D-CT)*
       | 
       | Durbin (D-IL)
       | 
       | Grassley (R-IA)*
       | 
       | Feinstein (D-CA)
       | 
       | Cornyn (R-TX)
       | 
       | Whitehouse (D-RI)
       | 
       | Hawley (R-MO)
       | 
       | Hirono (D-HI)
       | 
       | Kennedy (D-LA)*
       | 
       | Casey (D-PA)
       | 
       | Blackburn (R-TN)
       | 
       | Masto (D-NV)*
       | 
       | Collins (R-ME)
       | 
       | Hassan (D-NH)*
       | 
       | Ernst (R-IA)
       | 
       | Warner (D-VA)
       | 
       | Hyde-Smith (R-MI)
       | 
       | Murkowski (R-AK)*
       | 
       | Portman (R-OH)*
       | 
       | * are up for re-election this year.
       | 
       | Bit of a pain to find this information really - couldn't find a
       | single news outlet with a list of who introduced the bill. Kinda
       | seems like they don't want to be known.
        
         | loteck wrote:
         | By all means contact and organize on Senators, it's good
         | practice. In my experience they are completely unresponsive to
         | anything smaller than the largest and most funded groups.
         | Still, making noise is only good.
         | 
         | You may find your local house rep to be much more persuadable
         | and willing to listen to your educated points of view. Getting
         | their position stated publicly and on the record in either
         | direction can be very meaningful.
        
         | yareally wrote:
         | > Portman (R-OH)*
         | 
         | He's retiring this year. Candidates running for his spot in his
         | party are likely to support it though
        
         | KerrAvon wrote:
         | Feinstein really needs to go. CA can do so much better.
        
       | eikenberry wrote:
       | This seems like it could have a significant upside if passed.
       | That it would help promote federated and peer to peer free
       | software systems with no centralized, commercial target to sue.
       | Might even require some of the current giant social networks to
       | pair back significantly to avoid liability.
       | 
       | I'm not saying I want it to pass, just think the unintended
       | consequences might be interesting and even beneficial in some
       | ways.
        
         | bo1024 wrote:
         | Pretty sure the government won't view it that way. It'll be
         | called a loophole and crushed if it gets mainstream. This is
         | the country where sending an HTML GET and receiving response
         | 200 can be prosecuted under the CFAA.
         | 
         | We need a legal environment that explicitly protects encrypted
         | communications, not one where they are are maybe tolerated on
         | the fringe.
        
           | eikenberry wrote:
           | This is a different battle. The government has gone after
           | general purpose encryption multiple times and has been beaten
           | back so far. And while this would definitely be a win for
           | that side of things it isn't the same battle and the Earn IT
           | Act is not about encryption in general. It is about
           | encryption in the context of commercial entities and their
           | managed content.
        
         | devwastaken wrote:
         | Decentralized does _not_ mean lack of liability. That 's a
         | marketing ploy. P2P filesharers and tor hosted sites are taken
         | to court on the daily because of this one little trick called
         | the IP address. Everything you send has your external IP. It
         | doesn't matter that they "can't prove it was you". Courts have
         | continually upheld that an IP address is grounds for either
         | civil discovery or further criminal investigation. And yes, the
         | court can absolutely compel you to unlock your full disk
         | encrypted MacBook/Linux/bitlocker whatever.
         | 
         | The only reason people en mass can do decentralized is
         | _because_ of the availability of encryption, because VPN 's,
         | because companies and software can offer encryption. This
         | legislation and it's precedent would kill the decentralized
         | web. It's not as if Google is going to go broke - they'd be the
         | first to be approved and go on their merry way.
        
           | eikenberry wrote:
           | I said P2P, not TOR. With P2P systems you only host your own
           | stuff. So if they want to take someone to court it would be
           | the person with the illegal content on their system... IE.
           | who you want to go after. There is no reason to have to prove
           | anything. Those P2P filesharers that are taken to court are
           | the ones sharing the files, not just random people on the
           | network.
           | 
           | With P2P and Federated systems (encrypted or not), the people
           | hosting the content are breaking the law and are the ones you
           | go after. Just like now (pre Earn-It), where they go after
           | the people posting the files to the central servers and not
           | the central servers themselves.
        
       | mrandish wrote:
       | While this bill is strongly opposed by the Internet Society,
       | ACLU, CDT, and EFF, the critiques I've read don't get much into
       | the real "why" behind this legislation continuing to be pushed so
       | forcefully. The pretext is, of course, "protect the children" and
       | more generally law-and-order with a bonus side-helping of "stop
       | those awful social media giants." While these justifications are
       | (hopefully) obvious misdirection to most, I'd like to see more
       | mainstream discussion about who this bill benefits and why. The
       | legislation 'coincidentally' achieves exactly the agenda proposed
       | by the "surveillance state" (ie CIA, NSA, FBI, DHS, law
       | enforcement lobby, state prosecutors, etc). While it doesn't
       | specifically prohibit public access to encryption, it seeks to
       | create nearly the same effect by making it legally risky for
       | large social media and platform companies to offer end-to-end
       | encryption as a default to law-abiding citizens. It's no accident
       | that almost every version of the bill creates this exposure to
       | essentially bottomless legal liability for platforms offering
       | secure communications.
       | 
       | Frankly, this scares the crap out of me. These people seem
       | incapable of understanding the existential threat to free society
       | and democracy posed by limiting _everyone 's_ ability to
       | communicate private thoughts. While not explicitly outlawing
       | untappable communications, it's much easier to identify _who_ is
       | choosing to use end-to-end encryption when it 's not the typical
       | default. This will ultimately put all of us who care about secure
       | communications under default suspicion, whether our interest in
       | private comms is a moral ideal, political principle or simply
       | proper technical architecture and data hygiene. In today's multi-
       | national environment of nation-state, criminal and privateer (NSO
       | etc) threat actors, insecure communications over Internet
       | infrastructure should only be seen as an ill-advised risky
       | behavior or a technical bug.
        
         | PaulDavisThe1st wrote:
         | Ending Section 230, incrementally or all in one go, has been
         | increasingly on the minds of politicians (mostly but not
         | exclusively conservative ones) for some time now. There's a lot
         | more to EARN IT than just that, but some of them will vote for
         | anything that increases the liability exposure of anyone
         | hosting anything online.
        
           | judge2020 wrote:
           | All section 230 does is make it so that "platforms" can
           | remove posts it doesn't like without needing to assume
           | liability for every other posts. Unless they think Twitter is
           | going to hire a few million employees to screen every post,
           | Twitter and the rest would simply turn off the platform to
           | anyone who isn't verified or doesn't otherwise sign a waiver
           | releasing twitter of that liability (which was possible
           | before CDA, as well, but nobody wanted to introduce that sort
           | of barrier to social media/forums back then).
        
         | judge2020 wrote:
         | > These people seem incapable of understanding the existential
         | threat to free society and democracy posed by limiting
         | everyone's ability to communicate private thoughts.
         | 
         | Democracy only directly benefits the people, not those in
         | power. The only difference between a democracy and a
         | dictatorship in terms of leaders keeping key supporters happy
         | (the people vs. just those that hold office and control the
         | military) is that democracies tend to employ more creative
         | people with society-enhancing goals, thus driving technology
         | forward and maybe even extending our lifetimes (via better
         | healthcare).
        
         | kragen wrote:
         | > _These people seem incapable of understanding the existential
         | threat to free society and democracy posed by limiting_
         | everyone's _ability to communicate private thoughts._
         | 
         | The existential threat this bill poses to free society and
         | democracy is exactly why they're supporting it. It's not some
         | accidental side effect.
         | 
         | They're opposed to the existence of free society and democracy
         | because it limits government power, which means letting
         | criminals and terrorists run free. They want the police to have
         | all the power they can get because, as far as they're
         | concerned, they're the good guys, and giving the good guys more
         | power helps them win against the bad guys.
         | 
         | Free society means limited government, and the only way for the
         | government to be in favor of that is for the government to vote
         | against its own interests. That requires the people in the
         | government to identify more strongly with the people living
         | under the government than with the government itself. This is
         | precarious at the best of times. Why would the governing party
         | want to make it easy to organize dissenting political parties
         | and alternative centers of power? Power might fall into the
         | wrong hands.
         | 
         | I know that sounds sarcastic, but try to see it from their
         | perspective, even if you don't agree with it.
        
           | treis wrote:
           | We had a free society and democracy before the internet.
        
             | pixl97 wrote:
             | There were many attempts by the same people to monitor
             | phone and mail communications.
        
         | ocdtrekkie wrote:
         | > While this bill is strongly opposed by the Internet Society,
         | ACLU, CDT, and EFF,
         | 
         | It's worth noting that the companies destroying democracy that
         | this bill regulates (Google, Facebook, etc.) are major donors
         | to all of these organizations.
        
           | wbsss4412 wrote:
           | Seems the world isn't all black and white.
           | 
           | It's not like those companies have "destroy democracy" as
           | their mission.
        
           | ideashower wrote:
           | And Mozilla Corporation's entire business model is built on
           | Google's financial support. Does that make Mozilla's (or the
           | ACLU etc.) work inherently suspect or anti-democratic?
        
             | E2EEd wrote:
             | MZLA is building tbird for profit
        
           | TameAntelope wrote:
           | None of those companies are destroying democracy, that's
           | needless hyperbole...
        
             | ocdtrekkie wrote:
             | I disagree. Social media has played a huge part in the
             | radicalization of various groups and allowed anti-
             | democratic views to spread. The companies mentioned here
             | have an outsized part in that because they prioritize
             | engagement at all costs, which pushes people down rabbit
             | holes of increasingly extreme views.
        
           | jjulius wrote:
           | "See, we donate to these organizations, we're not _that_ bad,
           | promise! "
        
         | E2EEd wrote:
         | E2EE is offered to all users, whether or not they are law-
         | abiding. More precise is to say that E2EE is offered to users
         | who are primarily law-abiding.
         | 
         | Your points are well-heard, even by those in the IC. What isn't
         | occurring, is a good-faith discussion on solving the issues
         | faced by law enforcement and the IC related to the growing
         | entropy of E2EE wielded at scale by folks, a large subset of
         | whom are engaging in criminal behavior. I strongly believe that
         | fighting this issue with a hard-line no compromise response
         | will result in an undesirable outcome for your agenda.
         | 
         | I am not a fan of kneecapped cybersecurity in consumer
         | endpoints, which is the elephant in the room. It's a compromise
         | borne of the E2EE entropy problem, intentional or not. I don't
         | support unchecked recoverable encryption in any centralized
         | fashion, nor do I support covert backdoors or skeleton keys.
         | 
         | Unfortunately, too many folks defend their position from
         | libertarian ideals, a position which does have a technical
         | justification. It just misses the bigger picture - that most
         | folks in govt are just doing their job. A compromise will seek
         | to enable those doing their job correctly while preventing
         | abuses with technological means.
         | 
         | Telling the govt "too bad, you can't stop math" will backfire.
         | The law can be used to force tech companies to literally stop
         | doing math at scale.
        
           | mrandish wrote:
           | > What isn't occurring, is a good-faith discussion on solving
           | the issues faced by law enforcement and the IC
           | 
           | Public policy orgs like EFF etc have proposed modifications
           | to limit the most disastrous elements of this proposal but to
           | the extent those proposals fix or limit the 'accidental'
           | limitless liability for communications platforms, they are
           | met only with disingenuous cries of "think of the children."
           | I think it's pretty clear the lack of "good-faith discussion"
           | lies with the people who've never openly acknowledged what
           | all this is _really_ about.
           | 
           | > even by those in the IC.
           | 
           | Hopefully the intelligence community, as opposed to the
           | domestic law enforcement agencies, already understands how
           | dangerous this legislation could be for U.S. national
           | interests. The unintended consequences won't stop at social
           | media. Platforms of all kinds will react to the liability
           | exposure or merely the possibility of it. With other nations
           | imposing their own in-country data requirements on trans-
           | national platforms how many platforms (or their upstream
           | technology providers) will maintain a separate insecure
           | version for domestic tapping and a robustly secure version
           | for international use? Just like our own backdoors being used
           | against us, we've already seen how this kind of thing has a
           | way of undermining our own security. Short-sighted
           | bureaucrats are playing with fire here.
           | 
           | > too many folks defend their position from libertarian
           | ideals
           | 
           | I don't see how this is tied to uniquely libertarian ideals.
           | The 4th amendment prohibition on government search of
           | citizen's "papers and property" isn't some aspirational ideal
           | or partisan political viewpoint - it's always been at the
           | very core of the nation. It's also been continuously endorsed
           | by both liberal and conservative supreme courts for hundreds
           | of years.
           | 
           | > that most folks in govt are just doing their job.
           | 
           | To the extent their actions violate or undermine the
           | constitution, it's no longer "law enforcement". Sadly, quite
           | the opposite. If the law is the 'operating system', then the
           | constitution is the 'secure kernel' - the last line of
           | defense against threats capable of undermining the integrity
           | of the entire system. From day one in the 1700s, the
           | constitution has _always_ made the job of law enforcement
           | MUCH harder. That 's not a bug. It's "As Designed" and perma-
           | marked by the original designers (and the maintainers in
           | SCOTUS) as "Won't Fix". Hell, it goes beyond just a feature -
           | limiting the power of what the government is allowed to do is
           | the explicitly stated purpose of the thing.
           | 
           | It's always been well understood, as well as taught in
           | elementary school, that the unique freedoms the country was
           | founded on came with a cost - and that sometimes that cost
           | would be high, but... preserving these freedoms, including
           | making things harder on law enforcement (and potentially
           | easier on criminals), was worth the cost.
        
           | iamstupidsimple wrote:
           | > Telling the govt "too bad, you can't stop math" will
           | backfire. The law can be used to force tech companies to
           | literally stop doing math at scale.
           | 
           | There is no practical scenario where those who want to use
           | e2e will not have that capability. Even if technology
           | companies are totally banned from producing it domestically,
           | it's trivial for foreign companies to provide the e2e
           | software and supply it over the internet.
        
             | bbarnett wrote:
             | Until that becomes illegal. After all, torrent indexes are
             | illegal, and they aren't directly pirating anything.
             | 
             | Thus, supporting an end around, can be attacked as well..
        
           | bradleyjg wrote:
           | Law enforcement and IC are starting with the assumption that
           | they are entitled to the best access they've ever had. Yes,
           | things are going dark that they had access to 20 years ago,
           | but 20 years before that they didn't have access because most
           | of the conversations were happening face to face. At that
           | point they needed to rely on traditional boots on the ground
           | police/intelligence work instead of electronic backdoors. Why
           | is it impossible for them to go back to doing things that
           | way?
        
         | [deleted]
        
         | bitL wrote:
         | Maybe those people absolutely understand the implications for
         | free society. What if there was a power transfer on the
         | background, over many years, unnoticed, and the winning group
         | now doesn't want any disruptions coming from encrypted
         | communication in the future?
        
       | SturgeonsLaw wrote:
       | These assholes just keep trying and trying until they get their
       | way. At least it's good to see there's some actual pushback in
       | the United States. Here in Australia, this sort of legislation
       | has bipartisan support, it gets rubberstamped and passed on a
       | Friday evening before a public holiday with the media staying
       | silent.
       | 
       | Keep fighting against these bills, or else you'll get a
       | government that happily runs roughshod over your civil liberties
       | like ours.
        
         | [deleted]
        
         | Arubis wrote:
         | Of course they do. They know the equation: we have to win every
         | time; they only have to win once.
        
         | matheusmoreira wrote:
         | Yeah. Maybe there should be a law that makes it illegal to
         | attempt to ban encryption.
        
       | loteck wrote:
       | The 3 Techdirt links in the article are especially helpful for
       | catching up.
       | 
       | EARN IT is another skirmish in the 30+ year old Crypto Wars. For
       | those who care about defending privacy and encryption, exhaustion
       | is not an option.
       | 
       | Power-hungry governments must be viewed similarly to an APT in
       | this context. They are following their very nature, and they will
       | never stop inventing new approaches.
       | 
       | There is no other option except to stay organized and always
       | ready to engage.
        
       | uejfiweun wrote:
       | It seems like this Stanford page has clearly taken a side on the
       | issue. Does anyone have a link to a solid unbiased discussion of
       | the pros and cons of this? It's got bipartisan support, so
       | clearly there are legitimate arguments in favor of these changes,
       | would be interested to hear what they are.
        
         | wbsss4412 wrote:
         | Are there any issues that come up in Washington that _don't_
         | have have legitimate arguments for them, regardless of the
         | status of their partisan support?
         | 
         | The "pros" are fairly straightforward, mass data collection
         | makes it easier for law enforcement to do their jobs, or, at
         | least, that's their opinion.
        
         | fallingknife wrote:
         | > It's got bipartisan support, so clearly there are legitimate
         | arguments
         | 
         | That doesn't follow. The worst laws passed (e.g. the Patriot
         | Act) tend to have bipartisan support.
        
           | [deleted]
        
         | uoaei wrote:
         | > It's got bipartisan support, so clearly there are legitimate
         | arguments in favor of these changes
         | 
         | I don't see how the conclusion follows from the premise.
         | 
         | It doesn't seem appropriate to assume that politicians are
         | acting in good faith dialectical fashion, based on literally
         | every observation we've ever made of their actions vs their
         | rhetoric.
        
         | loteck wrote:
         | Let's have no fear to face down our opponents' claims. Senators
         | pushing this bill laid down their claims in a document [0], and
         | everyone should put on their critical thinking caps and grapple
         | with it.
         | 
         | [0]
         | https://www.documentcloud.org/documents/21194217-earn_it_act...
        
           | uejfiweun wrote:
           | Thank you, something like this is exactly what I was looking
           | for. Balances out nicely with the original posted link.
        
             | loteck wrote:
             | There's likely to be strong bipartisan opponents to this
             | bill in the Senate as well. Their issues are likely aligned
             | with another senator's response.
             | 
             | https://www.wyden.senate.gov/news/press-releases/wyden-on-
             | re...
        
       | kweingar wrote:
       | The main concern I have is the technological/administrative
       | burden put on smaller platforms, which would cause further
       | consolidation of the web.
       | 
       | What obligations this would impose on an operator of a small web
       | forum?
        
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