By Jeremiah Mosteller | Due Process Institute | Policy Counsel
Last week several Senators introduced legislation entitled the Eliminating Abusive and Rampant Neglect of Interactive Technologies Act (EARN IT Act). This legislation will create a national commission that will be tasked with creating “best practices” for how private technology companies can detect certain illegal content and help combat child sexual exploitation. We fully support the goal of this legislation’s sponsors and agree that we must all work together in a fight to end the exploitation and abuse of children in both digital and physical forms. However, we are concerned that this particular legislation presents more problems than solutions. It presents a significant risk of violating the constitutional rights of many Americans and will likely exacerbate many of the problems already existing in our criminal justice system.
Improper Delegation of Congressional Power
Our Constitution granted Congress with the power to “make all Laws” and this applies to our criminal laws. The EARN IT Act, however, improperly delegates the power to draft federal criminal law to the Attorney General and a commission of experts. Although the bill ultimately requires final Congressional approval before the commission-drafted “best practices” become actual law, it does so in a streamlined process that bars our elected leaders from engaging in meaningful debate and consideration of the proposed best practices. Individuals should not face criminal penalties for misunderstanding or violating guidance created by a commission in which their elected representatives had no voice in the development process. This is an improper and imprudent delegation of the powers granted to Congress by our Founders.
Violating the Fourth Amendment
The legislation also sets the stage for law enforcement to have an opportunity to secure the adoption of requirements for private companies to create encryption “backdoors” that will allow the government to access our devices at any time without a warrant. This is an unnecessary and extreme deviation from current law. It is Constitutionally unacceptable for law enforcement to force private companies to design their products in a manner that specifically permits the violation of our constitutional rights. Our Founders intended the warrant requirements in the Bill of Rights to be an individualized process based upon the existence of probable cause. Even though they could not have imagined the technologies recent generations would develop, our Founders intended the Fourth Amendment to protect us from the same kind of abuses they saw occurring under English common law—abuses that came as a result of the government seeking short cuts in the criminal investigative process.
Imposing Unnecessary, Unreasonable, and Unfair Punishment
These commission-created best practices will likely be complex and may contain technical, vague, or ill-defined terms. The EARN IT Act creates a criminal penalty for any individual who knowingly submits a certification that his or her company is complying with the commission’s best practices that contains a false statement. Imposing a two-year sentence for what could amount to a mere paperwork error or difference of interpretation is an unreasonable punishment for an act that likely resulted in zero harm to individuals or our local communities. This likelihood of ambiguity also creates a two-tiered system where large companies have the resources to properly seek extensive clarifications while those who work at smaller companies are faced with a potential choice between bankruptcy and incarceration.
Adding to Overcriminalization
Federal law already criminalizes making a false statement to the federal government and the EARN IT Act is simply creating an unnecessary, duplicate criminal penalty. This is a perfect example of the problem called overcriminalization and the propensity of Congress to believe that a new criminal penalty can solve every problem. These duplicate criminal statutes provide unethical prosecutors with the ability to make criminals out of ordinary citizens and overcharge defendants in order to force the acceptance of a guilty plea rather than the inflated punishment they will receive if they were to exercise their right to trial.
Counterproductive End Run Around Our Constitution
The EARN IT Act could make law enforcement’s job more difficult if the commission were to propose best practices that require private companies to search their customers’ private communications for illegal content and report it to law enforcement. In challenges to the legality of gathering such evidence, federal courts would likely determine that such companies were acting as “agents of the government” when they conducted the search. This means that in conducting searches, they must comply with the same warrant requirements in the Fourth Amendment as evidence collected by law enforcement. However, under this law, the evidence would have been collected in violation of the Constitution and would therefore be unusable in criminal proceedings. This would be counterproductive given the stated goals of this legislation.
Other Concerns
Our many coalition partners have raised additional concerns about the EARN IT Act:
· Strong encryption may be the most effective technology to protect an individual’s safety, security, and privacy in an increasingly digital world. In addition, the creation of a backdoor for law enforcement also creates a backdoor for wrongdoers, both foreign and domestic.
· The categories of best practices for consideration by the commission are written broadly and vaguely in the Act and might result in the censorship or suppression of online speech by companies to avoid the increased liability created by the terms of the legislation.
· Adoption of these to-be-determined best practices by legitimate companies will only impact ordinary Americans while those engaging in illegal activities will only shift their activities to other communication methods.
Conclusion
The harms posed by the sexual exploitation of children online certainly deserve the attention of Congress, but we hope it will seriously consider the many unintended consequences that could result from the adoption of this legislation. Americans should not have to compromise their constitutional rights and personal security in an attempt to compensate for the failures of our government agencies to keep children safe. There are many less concerning ways to equip law enforcement agencies to identify perpetrators and we look forward to working with our leaders as they consider more productive and effective solutions.
Please read a bipartisan coalition letter to lawmakers covering many concerns with the EARN IT Act here as well as our letter with the National Association of Criminal Defense Lawyers that more specifically focuses on criminal law concerns here.