Technologist Andreas Antonopoulos says a controversial new U.S. law, that critics fear could seriously undermine the legality of encrypted internet traffic, is close to passing. He discussed his concerns in a video released yesterday on his YouTube channel, saying that the new legislation is a “very, very directed law that affects the largest content providors”, specfically highlighting WhatsApp and its billions of users.
The new law proposed by U.S. Senator Lindsey Graham, the “EARN IT” act, nevertheless still only has a 4% chance of getting through Congress according to the official government webpage. Antonopoulos said the new law would specifically undermine protections afforded in the Digital Millennium Copyright Act or DCMA, which separates companies from how their users make use of their platforms.
This controversial new bill, officially S.3398 and short for “Eliminating Abusive and Rampant Neglect of Interactive Technologies”, has been widely panned by technologists and civil liberties bodies such as the American Civil Liberties Union (ACLU).
S.3398’s ostensible objective is to, in short, combat the spread of child pornography. While this goal is universally praised, the means by which the U.S. government is proposing to accomplish this goal has many calling it a “Trojan horse”.
If it became law, companies might not be able to earn their liability exemption while offering end-to-end encrypted services. This would put them in the position of either having to accept liability, undermine the protection of end-to-end encryption by adding a backdoor for law enforcement access, or avoid end-to-end encryption altogether.
The bill describes that companies offering “interactive computer services” (ICSs) will be held liable for any acts or transmission of child pornography which are facilitated by their products.
That is, unless those companies comply with certain measures. Riana Pfefferkorn of The Center for Internet and Society at Stanford Law School said these measures boil down to “recommended best practices” assigned by a mixed law enforcement-technologist commission, and would likely target end-to-end encryption as contrary to these “best practices”.
Many are fearing that this would force companies like Facebook (and thus WhatsApp) would have to either remove their encrypted functionality, or build in a backdoor to that functionality accessible to law enforcement.
Another factor is that, even if tech companies do comply with the “best practices”, these guidelines will have to be updated every five years and each time approved by the US Attorney General’s (AG).
The ACLU fears as a result that “the best practices will overwhelmingly reflect the preferences of whoever is AG at the time”. They conclude that:
Though it purports to address some of society’s worst crimes, in reality, the EARN It Act will do far more harm than good. It will jeopardize the privacy of every American, fundamentally alter the freedom of our online communications, and, potentially, undermine the very prosecutions it seeks to enable.
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