EARN IT is a bill that takes away online service providers' "safe harbor" (a rule that says that the company that provides your messenger app isn't liable if you use it for slander, obscenity, etc) under Section 230 of the Communications Decency Act.

That is, unless...

Unless the service follows "best practices" - meaning rules set out by a commission chaired by the Attorney General, AKA Bill Barr.

If this sounds ominous to you, you're absolutely right.


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The first EARN IT Act hearings were yesterday. The bill's sponsors - Lindsey Graham and Richard Blumenthal - kicked things off by insisting that they had been maligned by the bill's opponents, who keep insisting that it bans working encryption.

Blumenthal: "This bill says nothing about encryption. Have you found a word in this bill about encryption?"

But as my EFF colleague Joe Mullin points out, this is an inept shell game indeed, even by Congressional standards.


Because the commissioners who will set out the EARN IT Act's best practices are crystal clear that the iron-clad condition for messenger apps' safe harbor is allowing law enforcement to spy on their users' messages, something that is only possible if you ban encryption.

Mullin: "You can’t have an Internet where messages are screened en masse, and also have end-to-end encryption any more than you can create backdoors that can only be used by the good guys. The two are mutually exclusive."


Graham and Blumenthal have pitched Barr's commission as a place where tech policy is made, but per Mullin, "The Commission won’t be a body that seriously considers policy; it will be a vehicle for creating a law enforcement wish list."

Barr is a cryptocidal maniac, who has made attempts to ban encryption for decades. The pretence that "we're not banning encryption, we're merely enabling Bill Barr to do whatever it takes to keep us safe, which starts with banning encryption" is tissue-thin.


It's not just bad policy, it's idiotic policy. The world is full of working, open, free encryption code that can be downloaded and run by anyone, including the Four Horsemen of the Infocalypse (mafiosi, terrorists, child pornographers and drug dealers).

The only way to prevent people from downloading and running this code is to erect a national firewall around the USA that blocks all sites by default, and then creates an unblock list of sites that promise to comply with EARN IT.


You'd also have to replace all the computers in circulation in the USA with trusted computing devices that refuse to run working VPNs and other firewall circumvention tools. And you'd have to seize all non-compliant devices at the border.

You'd have to ban math and computer science textbooks, because they explain how to make your own working encryption.

Anything less than this doesn't interdict bad guys, it just interdicts lazy, unmotivated bad guys.


The war on encryption is just the War on General Purpose Computation by another name:

Of course, none of that stuff is going to happen. For one thing, it would be unconstitutional, a thing that was firmly established in 1995 with EFF's precedent-setting Bernstein case, whose conclusion was and is: "Code is speech."


EARN IT is not a system for interdicting criminals and predators. It's a system for enabling and maintaining the capacity for mass surveillance of EVERYONE, EXCEPT criminals and predators and anyone else with the motivation to circumvent it.

Here's the petition against EARN IT. Go fill it in. Because as 2020 has taught us, merely being pigheadedly stupid and unworkable does not disqualify a thing from happening.


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