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The Technology 202

A newsletter briefing on the intersection of technology and politics.

Sex trafficking law looms large over latest bid to weaken Section 230

The Technology 202

A newsletter briefing on the intersection of technology and politics.

Happy Thursday! The last time the Senate voted on the EARN IT Act was my first trip back to Capitol Hill after the covid-19 shutdowns began in 2020. I’d say it feels like yesterday, but it really, really doesn’t.  

Below: FCC nominee Gigi Sohn gets grilled by senators (again), and Microsoft launches a Washington offensive. First, on today's big vote:

Sex trafficking law looms large over latest bid to weaken Section 230

A Senate panel is expected to greenlight a controversial bill Thursday that could open up websites to liability if they don’t crack down on child abuse material. It marks Congress’ latest attempt to weaken protections granted under the besieged law known as Section 230.

But as lawmakers weigh puncturing a new hole in that legal shield, a slew of civil society groups who oppose the bill have a message for them: learn from your past mistakes.

In 2018, Congress passed FOSTA-SESTA, a contentious measure that opened digital services up to lawsuits if they knowingly facilitated sex trafficking on their sites. Despite its aims, critics warned that the measure could have an unintended chilling effect on free speech and harm sex workers trying to safely communicate online. 

Now, civil liberties advocates, human rights groups and tech industry leaders are again sounding the alarm that the new bill could endanger the people it’s seeking to protect. 

The legislation, called the EARN IT Act, would create a commission tasked with issuing recommendations to platforms on how to best curtail child abuse on their products. It would open platforms up to liability under any federal and state civil laws, as well as state criminal laws, related to hosting child abuse material. (Section 230 allows for liability under federal criminal law.) 

The proposal advanced unanimously out of the Senate Judiciary Committee in 2020, but did not get a floor vote before the congressional session expired. It’s likely to get another breezy approval vote when the panel again marks up the bill on Thursday.

But in a letter Wednesday to Senate lawmakers, a coalition of advocacy groups and nonprofits argued that the “changes will threaten our ability to speak freely and securely online, and threaten the very prosecutions the bill seeks to enable.”

Facing the threat of new liability under the EARN IT Act, some have argued that platforms are likely to inadvertently crack down on sex education materials, disproportionately harming young LGBTQ users. 

“Platforms may again ban and censor sex-related speech, especially if it relates to youth,” another coalition of civil rights groups wrote in 2020. “These sex-related censorship regimes are particularly harmful to LGBTQ communities and to sex worker communities because their advocacy often discusses or relates to matters involving sex and sex education.”

Sen. Richard Blumenthal (D-Conn.), the lead sponsor of the EARN IT Act, pushed back on the notion the bill targets legal speech, not illegal activity.

“Images of child rape are not free speech. People who are sold, trafficked, abused, and exploited are not engaging in consensual work," he told The Technology 202 in a statement. Blumenthal added that “FOSTA-SESTA was similarly narrowly tailored to specifically address sex trafficking on online platforms.”

Yiota Souras, senior vice president and general counsel for the National Center for Missing and Exploited Children, said the group “continues to believe that FOSTA-SESTA provides powerful tools for child victims to bring civil cases and state attorneys general to protect the rights of children victimized by sex trafficking.” Souras, whose group also backs the EARN IT Act, said the bill “does not address any subject matter except for the narrowly, and graphically defined, child pornography.”

Since its passage, several prominent progressive lawmakers called for FOSTA-SESTA to be repealed and cautioned against creating more carve-outs to Section 230.

Rep. Alexandria Ocasio-Cortez (D-N.Y.) told me in February 2020 that she backs repealing the law, which she argued has driven “sex workers into the streets into an enormously dangerous situation, creating far more harm and danger.” Rep. Ro Khanna (D-Calif.), who voted against the sex trafficking measure in 2018, has also called for it to be rolled back. 

Critics have seized on findings released by the Government Accountability Office that FOSTA-SESTA has hardly ever been used by federal prosecutors to get restitution for sex trafficking victims, a main argument for its passing, to question the efficacy of the measure. 

Souras said the GAO study did not address pending civil cases stemming from FOSTA-SESTA. He noted that cases involving child sex trafficking can move slowly through the courts since the victims “are involved in difficult recoveries from the crimes inflicted upon them.” And he argued that legal remedies, even when not being actively deployed, can “serve as a deterrent to those who may engage in such criminal conduct against children.”

Khanna and other Democrats including Sen. Elizabeth Warren (Mass.) have also proposed legislation to require the government to study how FOSTA-SESTA impacted sex workers. 

But lawmakers who voted for FOSTA-SESTA have stood by the measure, which they hailed at the time as pivotal toward thwarting sex trafficking. And while some progressive Democrats have called for its repeal, others are wary of doing so.

“I want to see a proposal for what you put in its place,” Warren told me in December when I asked whether she supported repealing FOSTA-SESTA. 

She added, “If we’re talking about repeal, there needs to be something that we're certain protects vulnerable people from exploitation, and that's the conversation I continue to have with people. I understand the reason people are talking about change, but what goes in its place?”

Our top tabs

Biden’s FCC pick faced a second Senate grilling

Republican senators continued to blast Gigi Sohn, Biden’s pick for a seat on the Federal Communications Commission at a Senate hearing on Wednesday. Sohn said she has been “subject to unrelenting, unfair and outright false criticism and scrutiny,” Bloomberg News’s Todd Shields and Maria Curi report.

“Republican lawmakers focused on Sohn’s promise to recuse herself from some FCC policies that she had addressed 12 years ago as a consumer advocate,” Shields and Curi write. “They also asked about her time on the board of the Locast nonprofit service that relayed TV broadcast signals online until stopped by a judge. The service ceased last year and agreed to pay a settlement.”

The Senate Commerce Committee was poised to vote on Sohn’s nomination last week, but Sen. Ben Ray Luján (D-N.M.) suffered a stroke, delaying the vote. He could be back within the next several weeks. Sohn, a net neutrality advocate, represents a critical majority for Democrats on the FCC.

Microsoft announced new app store principles

Microsoft’s 11 principles mirror the Open App Markets Act, which was recently advanced in the Senate, Cat Zakrzewski reports. It comes as the tech giant tries to win regulatory approval for its $68.7 billion purchase of video game publisher Activision Blizzard.

More than a dozen regulators around the world will have to sign off on the deal, Microsoft President Brad Smith told journalists. The Federal Trade Commission is handling the deal in the United States, according to a person familiar with the matter who spoke on the condition of anonymity because they were not authorized to speak about it publicly.

Smith said he, Microsoft CEO Satya Nadella and other executives are meeting with members of Congress and think tanks in Washington as part of an offensive designed to get ahead of regulatory action.

“Microsoft stands to benefit from legislation regulating app stores, which other tech giants, including Apple and Google, have strongly opposed. With the purchase of Activision, the company is moving more aggressively into gaming subscriptions,” Cat writes. “If legislation such as the Open App Markets Act were to become law, Microsoft would be able to bring its subscription gaming service and even its own gaming store to more devices, including those running Apple operating systems.”

ID.me is dropping a facial recognition requirement for state and federal agencies

The decision to drop the requirement in identity-verification software used by 30 states and 10 federal agencies is a major reversal, Drew Harwell reports. The company also said that anyone will be able to delete their photo data starting March 1.

The announcement came one day after the Internal Revenue Service said it would no longer seek to require people trying to access their tax records online to submit a “video selfie” to the contractor. Around two dozen lawmakers slammed the IRS’s planned deployment of the technology before it announced that it would seek alternatives.

Rant and rave

Twitter analyzed Microsoft's new app store principles. IGN's Taylor Lyles:

Journalist Casey Newton:

There were also comments about Microsoft's dominance (or lack thereof) in the app store space. High Caffeine Content's Steve Troughton-Smith and software engineer Marcin Krzyzanowski:

Inside the industry

Tesla says California plans lawsuit alleging discrimination, harassment (Jacob Bogage and Faiz Siddiqui)

Meta is now calling out Google over Apple's app privacy rules (Bloomberg)

Amazon labeled a grocer by U.K watchdog, must abide by new rules (Bloomberg)

Agency scanner

CFTC chair asks Congress for authority to regulate some cryptocurrencies (Wall Street Journal)

Mentions

  • Sarah Kemp is joining Intel as Vice President of International Government Affairs. She most recently worked as an associate vice president at Organon, and was previously deputy undersecretary of the International Trade Administration.

Trending

The little streaming comedy platform that couldn’t (Vulture)

Daybook

  • The Senate Judiciary Committee is expected to discuss the EARN IT Act at a meeting today at 9 a.m. The bill, which would remove social media sites’ liability protections when users share child pornography, has come under fire from encryption and privacy advocates.
  • Consumer Financial Protection Bureau Director Rohit Chopra discusses consumer protection in the era of Big Tech at a Washington Post Live event today at 10 a.m.
  • Rep. Lisa Blunt Rochester (D-Del.) speaks at an ITI and Bridge for Innovation event on technology equity and opportunity on Monday at 1 p.m.

Before you log off

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